Bad Theology, Even Worse Jurisprudence: A Response to Donald Miller

on July 27, 2013

By Brandon Smith

Christians ought to be wary of following Donald Miller’s recent advice to seek truth more like a Supreme Court justice. Far from being a group of individuals seeking only to find truth under submission to the constitution itself, the century has revealed the Court’s penchant for interpreting the document in a way to find desired results rather than results in line with the text of the constitution itself. Advising Christians to seek truth in this manner only invites believers to weave their own flawed desires into their perceptions of Truth. This is, of course, utter nonsense.

Miller suggests that the current Justices are, in whole, committed to objective interpretation of the Constitution and the law with only minimal personal bias. But originalism, looking at the original meaning of the text of the constitution and applying it to current legal problems, is not the method of interpretation used by a majority of judges and justices.  Justice Holmes, in Missouri v. Holland (1920), coined the term “the living constitution” precisely to justify his departure from being bound by the text of the constitution. More directly, Justice Thurgood Marshall has stated firmly his disbelief in the fixed meaning of the Constitution. Far from embracing the strictures of stare decisis or the intent of the Constitution’s framers, justices have increasingly fancied themselves philosopher kings. Who could forget Justice Kennedy’s infamous sweet-mystery-of-life passage from Planned Parenthood v Casey (1992): “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

It is possible that Miller never heard Justice Brennan, when speaking to Georgetown Law in 1985, arguing that the role of the court was exactly to pursue moral rightness above all else. After all, it was never tweeted. In making this argument, Justice Brennan joined his predecessors, Justice Frankfurter and Justice Holmes, and Justice Warren, in importing their own views of what is right and wrong into their constitutional interpretation. Justice Scalia, in his recent book, points out that Justice Frankfurter lauded Justice Holmes for this habit as a quality to which other Justices should aspire. This is a perfectly legitimate position, it just so happens that it is completely wrong and  at odds with basic notions of the rule of law.

Justice Breyer, when debating Justice Scalia on the interpretation of the constitution, provided a litany of ways in which one ought to interpret the constitution. Most relevant here (pun intended),  Justice Breyer argues for looking to the ultimate consequence of the Court’s decisions as a basis for how to make the decision itself. Rather, he argues that a consequentialist approach to deciding cases is most important. This necessarily invites subjective interpretation of the Constitution. Justice Ginsburg agrees, asserting that the Court should strive towards a more perfect union regardless of what the original meaning of the constitution might have been.

In reality, it is those justices considered as more “conservative” who tend to take seriously the text of the Constitution and the law. Judge Bork, Justice Scalia, Justice Thomas, and Justice Alito.  Justice Scalia, a bulwark of defending the meaning of the constitution, has defended the meaning of the constitution against the whims of popular culture. Progress, as the public seeks it, ought to entail the passage of laws to create additional rights or responsibilities. The purpose of the constitution is not to allow for easy change, but to impeded change and requires the proper legislative process for establishing rights. It was Justice Scalia who felt compelled by his interpretation of the constitution to uphold distasteful acts such as burning the American flag.

Perhaps most irksome is that Miller backhandedly insults conservatives.  He “praises” them for supporting gay marriage and negatively characterizes the Voter Rights Act case. Neither comment accurately or rightly describes the cases, yet both manage to paint conservatives as the bad guys.  It is one thing to admit not knowing the truth, it is another to blatantly mischaracterize two major cases to score points against those misguided conservatives. Such bias is expected from the self-proclaimed progressives, but is most bothersome when coming from one claiming to be somehow above or beyond political leanings.

It is impossible to simply sweep away “the whole liberal vs. conservative” thing, as Miller puts it, because the differences are irreconcilable.  The approach used most often by conservative leaning judges is one that embraces that which Miller claims to like about the constitution: it is enduring. Meanwhile, the approach used most often by liberal leaning judges rejects the notion that any superior authority limits their own authority and encourages them to fashion results as they see fit, or deem best.

Christians ought to be leery of such comparisons because interpreting scripture like Justices Ginsburg, Brennan, or Warren interpret the Constitution results in dangerously slippery theology.  Taking seriously the concept of the living constitution and then applying that belief to a form of hermeneutics, invites the reader of scripture to change the meaning of scripture to better fit with the current demands of the reader.

A Christian might, for example, ask himself if it’s really the heart of liberty to define one’s own concept of existence and meaning as Justice Kennedy suggests. Now the scriptures teach that God spoke the universe into being, and that in wisdom and righteousness he sustains and governs all that is for his glory. He is the one who imbues all of creation with meaning and purpose. But the theological assertion, hidden in a legal opinion, is that created man can define and impose his own meaning onto existence. (It seems rather a small thing by comparison to suggest he can impose his own meaning on scripture.) In Justice Kennedy’s view, there is no higher liberty than for man to declare himself God. But haven’t we tasted that fruit? “Your eyes shall be opened, and you shall be like God.” That kind of warmed over humanism stands in sharp contrast with, say, the terra firma of the Westminster Catechism: Man’s chief end is to glorify God, and to enjoy him forever.

Miller’s rose colored view of how the modern Court does business, and his assertion that Christians should take their Bible reading cues from the Court does a disservice to Christians and those seeking God. Faith requires us to live in the tension of grace and truth. The story of Christ and the attempted stoning of the adulterous woman illustrates this tension. After dismissing her accusers, Christ freely offers grace to the struggling woman while simultaneously admonishing her to go and sin no more. It is as offensive to not offer someone grace as it is to not offer them truth. Yet, Miller’s suggestion is that Christians merely need to interpret truth to fit their own needs.

Seeking God, or seeking truth, is a long and arduous process. Christ, who asserts his status as “the way, the truth and the life,” desires his children to seek after him. In doing so, Christians are aided by the Spirit, directed by the scripture, and sustained by grace. There is not, however, any place for weaving into the tapestry individualized understanding of the Gospel.


Brandon James Smith graduated from Abilene Christian University; received his J.D. from the University of Kansas Law School, and earned an LL.M from George Washington University. A member of the Kansas bar, he works for a non-profit policy group in D.C.,  co-directs the Christian Legal Aid of the District of Columbia in Anacostia and teaches at American University.
  1. Comment by Donnie on July 28, 2013 at 1:02 am

    Donald Miller has never given me a reason to take him seriously. Looks like more of the same.

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