19th century Russian author Fyodor Dostoyevsky’s novel, The Brothers Karamazov, includes what the author calls “a prose poem” entitled “The Grand Inquisitor.” In the story Christ returns to life and is recognized by everyone, including a Catholic Inquisitor who arrests Him and instructs Him that He cannot say anything lest He contradict the Church’s teachings. The Inquisitor’s arguments are devilishly clever and based on careful exegesis of the New Testament.

As I was rereading “The Grand Inquisitor” recently I couldn’t help but imagine a similar story in which James Madison suddenly reappears in the public gallery of the U.S. Supreme Court. Chief Justice Roberts recognizes him sitting there, and, rather than risk that Madison might speak, he has him arrested. Later the Chief Justice instructs Madison not to say anything about the way the Court has interpreted the Bill of Rights over the years.

Whether conservative “strict constructionist” or liberal believer in a “living document,” none of the Justices would really want to hear what the Founding Fathers and “original framers” of the Constitution have to say about American law today.

Exegesis of the Bill of Rights

Having minutely studied texts all my life (like a Jesuit monk or a poor Dickensian law clerk)—my eyesight failing until I can barely make out a character on a page—I know only too well that exegesis is a ridiculous endeavor. The older a text becomes, the more difficult it is for a contemporary reader to understand. In fact, as soon as a text is old enough to require exegesis some aspect of it is already irretrievably lost. An honest exegete can only strive to reconstruct its meaning. The next generation of exegetes is inevitably influenced by its predecessors’ misinterpretations—and errors cascade. (Noto bene: I am not espousing deconstructionism or Post-modernism.)

The 18th century Bill of Rights is relatively new in terms of textual criticism. We textual critics generally ponder shards of papyrus, not a massive elephant-folio-sized parchment under glass in the U.S. National Archives. The Constitution is written in English that’s less than 300 years old—such English is called “Modern” even though few contemporary English-speakers understand the vocabulary in the way James Madison did, let alone the grammar and syntax. And we have Madison and Hamilton’s contemporaneous Federalist Papers to help us understand what they intended the Constitution’s clauses and amendments to mean.

Even so, the meaning of the Bill of Rights is elusive.

Why is it that literate human beings spend so much time studying the words of seminal texts like the Bill of Rights? Why don’t we simply write our own “position papers” each generation instead of arguing over the meaning of ancient texts? Why is it that elaborate bureaucracies always grow around important texts, like barnacles on a ship’s hull?

The answer to the last question is obvious: lesser minds can sometimes recognize the greatness of a text and realize that like parasitical barnacles they can thrive off its greatness. Once that happens, of course, the original text is obscured by the layers of calcification.

But the answer to why we cherish ancient texts is difficult.

In the case of the Bill of Rights, I think part of the answer is that it was intended as a break with the past, not a continuation. (Perhaps the same is true of the New Testament.)

When a text represents a complete break with past tradition (if that’s really possible), then its adherents cannot point to precedents when justification is needed. Instead, the text has to be worded so that all its meaning is present in the text itself. When interpretation is required, interpreters can only refer to “internal evidence.” Under such circumstances, literate human beings quickly turn to close reading of the text (exegesis).

Inevitably, then, a time comes when the seminal text is overburdened with exegesis. Its original meaning is lost to anyone unfamiliar with the language in which it’s written—it becomes like runic inscriptions on a mountain crest. Exegetical camps evolve. Big-Egg-Endians fight with Little-Egg-Endians. Strict Constructionists take out their magnifying glasses to study the National Archives. Living Document-ists grab off their bookshelves a text on international law or the Geneva Conventions.

So, what prevents us from developing a new, seminal document under these circumstances? One incredibly important fact: Neither side wants to break with our past now. There are no alternative theories of government at this time that are superior to the U.S. Constitution.

My Solution

I have a suggestion. However, I’ve lived long enough to know that it’s highly unlikely to happen.

What if the U.S. Supreme Court decided to set aside legal precedents and instead chose to exclusively examine the seminal documents? (This isn’t the same as strict constructionism as I understand it. Even a strict constructionist refers to legal precedent. Most Supreme Court decisions either uphold or overturn a lower court’s ruling based on other precedents.)

The Justices would have to agree upon what the seminal documents are, of course: the Constitution, the Bill of Rights (and subsequent Amendments), the Federalist Papers, the Declaration of Independence, and possibly a handful of others.

Then, they would have to look carefully at British Common Law—and this would not be easy, because Common Law is fundamentally exegetical. The Brits have no constitution at all. However, it seems to me that the Founding Fathers have already done most of the work for the Supremes. The Founding Fathers expressly included in the Bill of Rights certain Common Law rights that were novel or controversial in the 18th century and neglected to mention certain rights that were so long-established that they didn’t bear repeating (general property and inheritance rights).

Not every issue that comes before the Supreme Court could be examined in this way. Abortion, for example, is a very modern issue, because of modern medicine. The right to privacy is also a new concern, because in the 18th century both isolation and physical barriers between individuals were common. (The Fourth Amendment’s “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” is a specific property right and a habeas corpus right, not a privacy right.)

Reasonable Doubt

However, I believe that some issues (such as the issue of “reasonable doubt”) could be clarified and simplified—and revitalized—by a new exegesis of the original documents. As I have written elsewhere, the phrase “reasonable doubt” is a devilishly clever ruse to make it easier for juries to convict defendants, not a shield from false conviction.