Enthroning the Interpreter: Dangerous Trends in Law and Theology, Part II -- By: Andrew M. Woods

Journal: Conservative Theological Journal
Volume: CTJ 08:24 (Aug 2004)
Article: Enthroning the Interpreter: Dangerous Trends in Law and Theology, Part II
Author: Andrew M. Woods


Enthroning the Interpreter:
Dangerous Trends in Law and Theology, Part II

Andy Woods

Doctoral Student
Dallas Theological Seminary

The previous article demonstrated that use of a literal hermeneutic in order to ascertain authorial intent is foundational to proper legal and biblical interpretation. The next two articles will expose a drift away from these bedrock principles in both fields. Over the course of the previous century and a half, American jurisprudence has experienced a progressive movement away from seeking authorial intent through what the author has plainly stated. Although this trend is not necessarily discernible in all facets of legal interpretation, it is particularly noticeable in the field of constitutional interpretation. While Justice Story’s previously mentioned classical approach to constitutional interpretation called for seeking the meaning of the Constitution based upon the plain language of its drafters, modern constitutional interpretation places the ability to determine the Constitution’s meaning almost exclusively within the subjective discretion of the interpreter. Thus, the end result is that the field of constitutional interpretation has undergone a radical shift in authority from the objective constitutional text to the subjectivity of the interpreter’s mind.

Legal Positivism: Its Origin and Essence

When did such a shift away from Justice Story’s time-honored objective approach to the Constitution begin? Historians have traced it to the following three individuals: Christopher Columbus Langdell (1826–1906), Roscoe Pound (1870–1964), and Oliver

Wendell Holmes (1841–1932).1 All three were influential in the legal community. Langdell was dean of Harvard Law School. Pound served as a professor at four different law schools and also served as the Dean of the law schools at Harvard and the University of Nebraska. Holmes was appointed to the United States Supreme Court in 1902. By utilizing their spheres of influence within the legal profession, these men each played strategic roles in institutionalizing what is known as legal positivism. Langdell first introduced this dangerous trend in constitutional interpretation at Harvard Law School in the 1870’s. Pound followed in this tradition when he subsequently became dean at Harvard. Holmes brought legal positivism into the fabric of American judicial making following his appointment to the nation’s highest court.

In essence, the legal positivist maintains that the proper role of the judiciary is not the application of the Constitution’s original understanding when adjudicating legal controversies...

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