Workable and Purposeful
Photo by Anthony Garand on Unsplash
I have been glad to read the reflective review of his judicial career by Justice Stephen Breyer, Reading the Constitution: Why I Chose Pragmatism, Not Textualism (2024). I have neither the wits nor the patience to follow the close detail of his argument as he goes from case to case to reflect on his court opinions, often in dissent. The main point of his argument, however, is quite clear. It is an insistence that his pragmatic approach to the constitution permits the constitution to remain purposeful and workable, and is the best approach to judicial reasoning. His approach has the capacity to take into consideration many circumstantial factors, not least the circumstance of the particular case before the court. His perspective is quite in contrast to the “originalism” or “textualism” championed by his friend and often adversary, Justice Scalia. Breyer insists that for the constitution to function properly it must be open in its response to newly emerging cases and cannot be simply a closed, fixed, settled document with a single meaning. Breyer appeals to Thomas Jefferson in his advocacy for a workable theory of the constitution:
Jefferson also advocated an adaptive approach to constitutional interpretation, on the ground that “the earth belongs always to the living generation” and that our ancestors should not have the power to permanently bind their successors. Interpreting the Constitution in the present day, judges normally should (and do) keep in mind that the “Founders meant the Constitution as a practical document that would transmit its basic values to future generations through principles that remained workable over time.” In a word, the Constitution must remain workable (123).
The force of Breyers’s argument has been a great learning for me in its own right. Beyond that it is an easy and obvious move from Breyer’s judicial theory to a consideration of the biblical text. A replication of “originalism” or “textualism” in scripture interpretation takes the form of fundamentalism that assumes the biblical text has a fixed, closed, and settled meaning. (It is worth noticing, moreover, that the claim for such a fixed, settled, closed meaning is most often one that endorses and supports the particular persuasion of the interpreter). Against such a fixed notion of the text, faithful interpreters can notice that in new circumstance the text will invariably yield new significance. Or in the words of the Puritan preacher, John Robinson, we discover, many times over, that “the Lord has more light and more truth yet to break forth out of his holy word.” Just as Breyer insists concerning the Constitution!
The tension between the two perspectives is made clear in scripture itself. Long ago Gerhard von Rad, Studies in Deuteronomy (1953) contrasted the rhetoric of the Holiness Code and its “Kabod” theology with the book of Deuteronomy and its “name” theology. He observed that the Holiness Code of Leviticus 18-26 is concerned with sacerdotal matters and is cast as God’s own utterance that allows for no slippage or interpretive elasticity. By contrast the rhetoric of Deuteronomy is not the speech of God, but of Moses. It is preoccupied with case law and exhibits the way in which the Torah can extend YHWH’s governance into new areas and dimensions of the life of Israel. Thus the Book of Deuteronomy advances well beyond the old Covenant Code (Exodus 21-23) to pertain to many new zones of life, not least concerning the governing structures of kings, judges, and prophets. The Holiness Code allows for and anticipates no on-going developmental tradition, whereas the rhetoric of Deuteronomy anticipates and calls for endless reiteration, amplification, and modification. Indeed the notion of a “Deuteros” issue of Torah is itself an on-going dynamic enterprise. We habitually translate the Greek term from the LXX as “copy” (Deuteronomy 17:18). But it might well be rendered “second version,” as the circle of teaching scribes and priests in this tradition could imagine and call for endless variations of the teaching of Moses. (Full disclosure: This dynamic rhetoric was the subject of my doctoral dissertation at Union Seminary in 1961 under James Muilenburg: “A Form-Critical Study of Cultic Material in Deuteronomy: An Analysis of the Nature of Cultic Encounter in the Mosaic Tradition.”) Thus the text always again yields “more light and more truth” when we have the attentiveness, the discipline, and the imagination to see how the biblical text can freshly pertain to the requirements and issues of contemporary life.
While the Holiness Code lingers in a settled sacerdotal past, the tradition of Deuteronomy continues to be generative for the civic life of the covenanted community. It contrasts to a closed, settled, and fixed text that cannot allow for emerging issues in the world that require adjudication. Thus the US Supreme Court, now apparently guided by originalist influences, seems determined now to limit rights to those that were on the horizon of the initial framers of the constitution; thus more recently emerging rights of various populations may be marginalized. A similar retro-view of the constitution, and therefore of the law, may result in exclusion of emergent populations from a fixed, closed, settled governance appeal to a static constitution or a static Bible, and could represent an attempt to move back to an old world that was greatly circumscribed in its notion of the reach of YHWH’s good governance.
Against such a retrograde view of the biblical text, we can see the dynamism of the tradition of Deuteronomy by an appeal to this remarkable assertion of “Moses”:
Not with our ancestors did the Lord make this covenant, but with us, who are all of us here alive today (5:3).
The stunning accent on “today” in Deuteronomy is an insistence that the Torah must remain contemporary in its pertinence. Given that claim, the text “reiterates” the Ten Commandments from Exodus 20:1-17 (Deuteronomy 5:6-21). Even in such reiterations, however, we can see clearly that the interpretive freedom engaged by the teaching tradition by noticing the amendment of the fourth commandment on Sabbath. Whereas the commandment in Exodus 20 saw God’s rest on the seventh day of creation as the grounding of Sabbath rest, here the motivation or Sabbath rest is the Exodus and the relief of emancipation. The tradition is free both to reiterate and to modify as context requires and evokes. Not only does the tradition of Deuteronomy reiterate and modify the initial “Ten,” it goes on in chapters 12-25 to stake out quite new territory for the claim of Torah. We can see that the tradition exercises great freedom; we can, moreover, imagine that even this “second version” of Deuteronomy is not the “final version,” as the dynamisms of this tradition surely would allow for new articulations of the “light and truth” of God yet to break forth. This tradition, in its dynamic imagination, is willing and able to consider and address new circumstances that are open to the exercise of God’s governance, and therefore circumstances that evoke responsive obedience from the people of God. There is and can be no end to the reiteration and modification that grows in and through scripture, just as Justice Breyer saw that there is no end to the “workability” of the Constitution.
Perhaps the farthest extreme of this dynamism is the oracle voiced in the remarkable rhetoric of II Isaiah:
Do not remember the former things,
nor consider the things of old.
I am about to do a new thing;
now it springs forth, do you not perceive it? (Isaiah 43:18-19).
The people of God in their displacement are urged and authorized to forget “things of old.” The poet does not specify what “old things” are to be forgotten. Apparently the poetry pertains to the treasured memory of the Exodus. But it might as well also be understood as forgetting old commandments for the sake of the new. Such contemporary teaching will address problems and issues of an urgent contemporary ilk. The God who speaks in this poetry is not a God devoted to what is old, settled, and fixed. This is rather the God who is characteristically on the move to new worlds and new mandates and new requirements. After the poetry of II Isaiah, it remained for Ezra, the scribe, to enunciate in a fresh way the mandates of the covenant; Ezra, a scribe of the Torah, understood that God’s covenant with Israel concerns exactly “us, we who are all of us here alive today.” It is impossible to hold back the force of the tradition in old formulations from ancient times!
In Christian tradition the verdict of I Isaiah is voiced on the lips of Jesus:
You have heard that it was said to those of ancient times…
but I say to you (Matthew 5:21, 27, 33, 38, 43).
In his teaching Jesus contradicts tradition with his radical ethic of neighborliness. Jesus belongs in that long line of Torah interpreters who intrepidly advanced the claims of God’s governance. Thus his Sermon on the Mount gives voice to and models obedience in his instruction to his disciples. Jesus presented his teaching, to be sure, not as a displacement of Torah, but as its fulfillment. It is for that reason that the ethical teaching of the New Testament, for example in the several catalogues of Paul, sound like a reiteration of long-standing Jewish tradition, of course with various applications to the context of the early Church. There is no doubt that the dynamism of Deuteronomy, continued in the prophetic tradition of Israel and in the life and teaching of Jesus, is alive with contemporaneous new demands and new applications. Thus as the tradition of Deuteronomy refuses the closed tone of the Holiness Code, so this tradition refuses flattened Torah teaching with its dynamism of on-going development that proceeds with great imaginative fidelity. The poet surely had it right about the Torah:
New occasions teach new duties,
Time makes ancient good uncouth.
The words are those of James Russell Lowell that he penned in 1845 at the break of the US War with Mexico that had as its back story the conflict concerning slavery and abolition with an aggressive hunger for new slave territory. Lowell’s poetry sounds the dynamism of on-going Torah tradition. For him the question of the Mexican War was a life or death matter for US citizens. Thus Lowell moved beyond the old traditions of white control and supremacy to affirm that the new crisis of the war imposed new duties that went well beyond old, more comfortable assumptions and practices.
It is like that with new “versions'' of the Torah. It is the on-going work of the interpretive community of faith to continue the work of producing new versions of Torah requirements and of summoning the community of faith to fresh glad, obedience. The dynamism of legal theory of Justice Breyer is an insistence that the work is not “back then,” but it is urgently present tense in moving effectively and responsibly into new futures. The endless reformulation of covenantal relationships and requirements is the work of the community of faith. Some of that work is to be done by the learned communities and scholars of the church. But most of it is done in local congregations, as the meeting of the people of God reformulates, for particular times, places, and circumstances, the old faith with new promise and new demands. There can hardly be any doubt among us that the contemporance of covenantal faith concerns attentiveness to the vulnerable among us (poor people, people of color, people of marginalized genders and sexualities) who in times past were regarded as an inconvenience if not a threat. As Justice Breyer pays attention to new issues that summon us, so the practice of the church must take care with the ongoing vitality and dynamism of the tradition in order to address new social emergences. After all, the God of the gospel is not a God of the dead but of the living. This God bids us to live fully the life of faith in glad obedience of the most generous kind in the present tense. This summons requires our best and bravest thinking in order to notice the ways in which the old covenantal traditions speak in new cadences to current social reality.
