The Briefing 02-15-16

Part I

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Late legal giant Justice Scalia's textualism has direct bearing on biblical hermeneutics

The huge news looming over the coming week is what took place on Saturday when the news came the Supreme Court Justice Antonin Scalia had died at age 79. “Presidents come and go, but the Supreme Court goes on forever.” So advised a man who ought to know, William Howard Taft. After serving as President of the United States, Taft went on to serve probably more effectively as Chief Justice of the United States. But even if you take his statement at face value, if the Supreme Court goes on forever, Justices do not. Americans were profoundly reminded of this truth on Saturday when news broke that Justice Scalia had been found dead in Texas where he had gone on a hunting trip.

The 79-year-old Justice had served almost 30 years on the nation’s highest court and was by any measure one of the most influential Justices in the Supreme Court’s history. Indeed, Antonin Scalia is almost assuredly the single-most influential Justice to sit on the Supreme Court in many decades. The loss of his influence, as well as his crucial vote, is monumental. Scalia’s significance lies in his commitment to originalism, also known as textualism—the belief that the Constitution of the United States is to be read and understood and applied in keeping with the language and syntax and vocabulary of its text as understood and intended by its framers. This is how the Supreme Court had operated for decades without even having to express originalism or textualism as a method. All that changed in modern decades as the Court and the nation’s liberal legal culture adopted an understanding of the Constitution as an evolving document that was to be interpreted in light of current social needs, even if this required the abandonment of the Constitution as a regulative document.

Progressivists, as they style themselves, argue that the Constitution is to be interpreted as a living text that can be made to mean whatever modern jurists and legal theorists want the text to mean. As Scalia would later explain, judges had grown accustomed to remaking the world in their own image, abandoning constitutional government. This process began earlier than even most conservatives recognize. One of the earliest proponents of this trajectory was President Woodrow W. Wilson. By the time Antonin Scalia arrived at the Harvard Law School in the late 1950s, the idea of the living Constitution was established orthodoxy. The moral revolution now reshaping Western societies could not have occurred without a cadre of judges and justices ready to advance that revolution by the assertion of radical ideas of personal liberty, autonomy, identity, and self-expression that the framers of the U.S. Constitution would never, could never, have recognized. The Constitution was bent and contorted to serve that revolution; new rights were invented that had no basis in the text of the Constitution itself, and would’ve been anathema to its original authors.

In the 1960s, the Supreme Court invented an individual right to privacy, as justices call it, that was used to overturn state laws against birth control. In 1973 the same argument was used by the Court’s majority in the Roe v. Wade decision legalizing abortion. In 2003, the Court struck down laws criminalizing sodomy, and in 2013 and in 2015, the Court issued rulings that eventually legalized same-sex marriage throughout the nation.

Even before his nomination to the Supreme Court in 1986, Antonin Scalia was known for his brilliant defense of originalism and what was often called a strict constructionist reading of the Constitution, though we prefer to call this approach textualism. Put simply, Scalia argued that the American commitment to democratic self-government required that the Constitution be honored as the nation’s authoritative text. He firmly believed in the right of the people to establish a constitutional government that would recognize the ultimate authority of the people, not an elite of unelected judges to establish laws.

As he often said, his concern was not necessarily what policy the people should adopt through electing representatives who would produce legislation. His concern was who decides. It should be the people through their elected representatives not in league of judges. As Scalia said,

“Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long in posing these demands on society.”

In his remarkable and haunting dissent to the 2015 Obergefell decision legalizing same-sex marriage, Justice Scalia made this point emphatically,

“This is a naked judicial claim to legislative–indeed super-legislative–power; a claim fundamentally at odds with our system of government.”

He continued,

“A system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

He was often most eloquent in dissent and prophetic in his warnings. He warned that the Court’s 2003 decision in Lawrence v. Texas would mean in his words,

“The end of all morals legislation.”

He went on to write,

“Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

In that, Justice Scalia was absolutely right. That is how the 2003 decision came about. Even more hauntingly, what he warned would follow in 2003 is exactly what did come. As Scalia saw it, if the people believe that same-sex marriage should be legal, then let them elect legislators who will accomplish that by law. He advocated the same for abortion and endless other issues. He was stalwartly opposed to judges usurping political authority for themselves, though he fully understood that the Supreme Court’s majority intended to do just that. He also understood that the Constitution operated as a necessary restraint upon political impulses. In other words, you have a Constitution in order to keep political things from happening recklessly. In his words,

“A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change.”

That’s a necessary break on what could be unhealthy impulses in an urgency in a democratic form of government. Scalia could be withering in argument, but he was also known as a jovial personality. His best friend on the Court, many people were surprised to learn, was perhaps its most liberal member, Justice Ruth Bader Ginsburg. With brilliant clarity, Scalia once explained,

“I attack ideas. I don’t attack people. And some very good people have some very bad ideas. And if you can’t separate the two, you gotta get another day job.”

Justice Scalia also understood that his approach to the Constitution would not always lead to comfortable conclusions. He explained it this way,

“If you’re going to be a good and faithful judge,” he said, “you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”

In 2009, Justice Scalia explained his understanding of the role of a judge or a justice in these words,

“We don’t sit here to make the law, to decide who ought to win. We decide who wins under the law that the people have adopted. And very often, if you’re a good judge, you don’t really like the result you’re reaching.”

That is a very clear statement, a brilliant statement, clear and concise about the role of a judge under and not above the Constitution and the laws. He was often a beacon of moral clarity. He once advised college students that they should understand a law higher than their own consciences. As he said,

“More important than your obligation to follow your conscience or at least prior to it is your obligation to form your conscience correctly.”

In other words, he was telling these college students: There is a moral law above your own internal law above your own conscience; the responsibility of the moral individual is to form his or her conscience in accordance with that higher law, not to substitute an inner law, one’s personal law, for that higher law.

History will record that Antonin Scalia influenced an entire generation of judges and justices and legal theorist. After Scalia, no one could ignore the originalist argument, even if they rejected it. But at the same time, history may record Scalia’s brilliant effort as a failed project. The political reality is that we are unlikely again to see the appointment and confirmation of an originalist and constitutionalist like Antonin Scalia in the foreseeable future. President Barack Obama, a pronounced advocate of the progressivist cause, is almost sure to nominate a liberal to the vacancy. The Senate, which bears responsibility to advise and consent, is unlikely to confirm that nominee, given the fact that this is an election year and the Senate is so split along partisan lines. This sets up what is known as a battle royale between Republicans and Democrats in the Senate and beyond. The implications for the 2016 presidential race are urgent and they’re also explosive. Given the Supreme Court’s central role in almost every American controversy, part of the inheritance of the progressivist agenda, the future of the Court will be central to the presidential election. It has to be. The stakes for the nation are so very high. Antonin Scalia will be dearly missed, and he may be virtually impossible to replace.

Christians must also understand that Justice Scalia’s understanding of the proper reading of the Constitution as a text is directly relevant to the church’s proper reading of Scripture. The same liberal theorists who proposed reading the Constitution as a living and evolving text also propose that the Bible be liberated from its actual text and from the intention of its authors. Ultimately, this approach to the Bible, common to theological liberalism, denies the authority of God as the ultimate author of the Scriptures. It is no accident that liberal theology and liberal theories of the Constitution emerged together in American public life.

Scalia’s worldview was shaped by his Roman Catholic faith, and he often scandalized liberals by making clear that he believed in the virgin birth and the bodily resurrection of Christ, and he through their unbelief back at them.

“For the Son of God to be born of a virgin? I mean really. To believe that he rose from the dead and bodily ascended into heaven. How utterly ridiculous.”

Then Justice Scalia made his point clear when he said,

“God assumed from the beginning that the wise of the world would view Christians as fools, and he has not been disappointed.”

In his classic 1997 essay explaining textualism as the proper approach to the Constitution, Justice Scalia wrote these very important words,

“The American people have been converted to belief in The Living Constitution, a ‘morphing’ document that means, from age to age, what it ought to mean. And with that conversion has inevitably come the new phenomenon of electing and confirming federal judges, at all levels, on the basis of their views concerning a whole series of proposals for constitutional evolution. If the courts are free to write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority.”

And then Scalia offered these final words of warning,

“By trying to make the Constitution do everything that needs to be done from age to age, we shall have caused it to do nothing at all.”

I fear that Justice Scalia was absolutely right in that analysis. We must pray that he was wrong.

The coming week is sure to be filled with remembrances and reflections on Justice Antonin Scalia from his friends and from his ideological opponents. There will also be a period of national grief in the death of a sitting Justice of the United States Supreme Court. But almost immediately, as we saw on Saturday night, the issue will turn to the political context and to the question of where the Court’s future will lie, and that puts this issue, as I said, right at the center of the 2016 presidential race, and right at the center of our conversation this week. We’ll be following the issue very closely.

Part II

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Mexican mariology cult eclipses Jesus, falsely teaches Mary as sinless "mediator"

Next, we need to note that over the weekend a couple of very important articles directly addressing theology appeared in two of the most influential papers in the country, the Wall Street Journal and the New York Times. Today we’ll look at the article in the Wall Street Journal. In that article, reporters Francis X. Rocca and Amy Guthrie writing an article with the headline,

“The Power of Mexico’s Version of the Virgin Mary.”

The subhead,

“Mary inspires more localized kinds of devotion than Jesus.”

The reporters write,

“On Saturday evening, after celebrating Mass in Mexico City’s Basilica of Guadalupe, Pope Francis will step into a small room there to pray privately before the Virgin of Guadalupe—a national icon that he praised earlier this month as ‘the image of a mother who covers, who takes care, who is close to her people.’”

The reporters then say,

“Well beyond Mexico, diverse forms of venerating Mary reflect Catholicism’s ability to adapt to different nationalities without compromising its universal character. Mary has become one of the church’s greatest missionary assets—not least in Rome’s competition with evangelical and Pentecostal Protestantism for believers in today’s Latin America.”

Now the point of this news story is that Mexicans so venerate the Virgin of Guadalupe that she has become more important even than the national flag; she has become an icon of Mexican identity. But Mexican identity is not the main interest here. It’s Catholic identity; it is the identity of Mary and the statement that was included in the subhead of this article. Let me quote again,

“Mary inspires more localized kinds of devotion than Jesus.”

This is where Protestants or evangelicals have always been gravely concerned about the doctrines concerning Mary as taught by the Roman Catholic Church and in particular, the reality that at the popular level Mariology often eclipses Christology; that is, Mary looms larger in the lives of many Catholics in a much-popular Catholic devotion than Jesus Christ, something that is profoundly a reversal of what is found in the Scriptures. In this Wall Street Journal article the reporters are arguing that this is a missionary asset for Roman Catholicism over against evangelicalism, because it allows a kind of patriotic or cultural identification, in this case, the process of enculturation that is adopting Mary, adapting Mary so that she looks Mexican and is thus embraced by the Mexican people. Furthermore, this is something that is openly encouraged by the Roman Catholic Church. Pope John Paul II openly and officially proclaimed our Lady of Guadalupe as she is known,

“The patroness of the entire Western Hemisphere in 1999, making hers the only local cult of the Virgin with such a large geographical range.”

The veneration of the Virgin of Guadalupe, as she is known, goes all the way back to the year 1531 when it is claimed that Mary appeared in an apparition to an indigenous Mexican named Juan Diego. One of the other points made in the article is that the Roman Catholic Church has allowed the process of enculturation to take place with relation to Mary, allowing her to be represented in different icons in different ways, by different claims of apparitions, in different national and ethnic and racial identities, in a way the church has not allowed depictions of Jesus Christ. But the fact that this article is not only about Mexican piety and the Virgin of Guadalupe, it’s made very clear when the reporters write,

“Mary has inspired a more localized kind of devotion than has her divine son, reflecting her special role in Catholic theology as a privileged mediator between God and humanity. She is believed to have been perfectly sinless, unlike any other person except Jesus.”

In the most important paragraph in this article the reporters write,

“In Mexico, the Virgin overshadows other saints and—in popular religiosity, though not in the official teachings of the church—even Jesus himself. Her image is omnipresent, embellishing everything from T-shirts to shopping bags. Statues of Mary stand in niches on the facades of countless Mexican homes.”

Well, here’s the big issue from a theological perspective, from a biblical perspective. Here you have an unbiblical teaching about Mary that has become so popular that the Virgin of Guadalupe is a more popular figure in Mexican popular devotion, in Roman Catholic devotion, than is Jesus Christ himself. But the key issue here is the use of one word. It is the use of the word “mediator.” In one particular part of this article where in describing Mary, the authors reflect on,

“…her special role in Catholic theology as a privileged mediator between God and humanity.”

Now, the New Testament makes very clear there is one mediator between God and man. This mediator—the book of Hebrews describes Jesus Christ as the mediator of a new and better covenant—is the only Savior, the only Lord, and the only mediator. There is nothing in the New Testament that states in any way that Mary is to be understood as a mediator. That is not only a matter confusion, it is a subversion of the singular role of Christ in salvation. Evangelicals looking at this story recognize there is an immediate theological issue at stake, but we also recognize that there is something significant about the fact that the Wall Street Journal has published this article in that secular newspaper over the weekend. Even they recognize something important is going on here.

Part III

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Ex-Auschwitz guard urged to break silence in trial and "tell the historical truth"

Next, from Germany, the New York Times with an article entitled,

“Trial of Reinhold Hanning, Ex-Auschwitz Guard, Opens in Germany.”

The article ran over the weekend; Melissa Eddy, reporting for the paper tells us,

“Reinhold Hanning, a 94-year-old former Nazi charged with being an accessory to the murder of at least 170,000 people who perished at a concentration camp in Poland, refused to make any statements as his trial opened on Thursday in Germany, even as a survivor directly urged him to break his silence.”

This is one of those stories that just reaches out and grabs you in terms of its moral meaning. Here you have a man who is accused of complicity not just in murder, but in the murder of 170,000 human beings at the Auschwitz death camp of Nazi Germany. You also hear behind this story the ticking of a clock, and that clock is the clock of mortality, of human mortality. You’re talking about a 94-year-old defendant in this case who was a young prison guard when the events of the criminal trial now taking place actually happened. And you’re also talking about accusers who are by definition virtually the same age. The clock is running out. The calendar is running out on an issue of unspeakable moral importance, and that is holding those now living accountable, those who were involved in the Holocaust, the final solution of the Jews during the Nazi regime in World War II, accountable. As Eddy writes,

“Mr. Hanning, a bespectacled, white-haired former SS sergeant at the Auschwitz-Birkenau camp, who was declared healthy enough to stand trial, sat attentive as the charges against him were read in court in the northern city of Detmold.”

But the key paragraph tells us,

“He declined to speak, even when addressed by a survivor. ‘Mr. Hanning, we are nearly the same age, and soon we will stand before the highest judge,’ said Leon Schwarzbaum, 94, from Berlin, who took the stand as a co-plaintiff. ‘I would like to call on you to tell us the historical truth.’”

The accuser was Leon Schwarzbaum, also age 94 from Berlin, who took the stand as a plaintiff. More importantly, he took the stand as Hanning’s accuser and he called upon him to break his silence and to speak the truth. But what he said is actually more morally urgent than might first appear, because when this 94-year-old man accused another 94-year-old man of complicity in the murder of 170,000 people, he called upon him not only to tell the truth, but these were his words again—hear them:

“I would like to call on you to tell us the historical truth.”

That gets to a very important point. The Holocaust is a historical fact and moral guilt is also an historical fact. This is not something that is merely remembered, this is something that happened. This is not something that is merely now a matter of criminal importance, it is one of the great moral stains upon humanity and especially upon the murderous 20th century.

Christians understand that the hunger for moral justice is something that is put within us by the Creator who made us in his own image, and because he is just, that image of God within us cries out the need for justice. But justice must be based upon truth, and in this case, that’s historical truth. And thus the importance of one 94-year-old man, pointing at another 94-year-old man in a courtroom in Germany saying, “Break your silence and tell us the historical truth.” Justice requires no less.