The Relevance of Text in Constitutional And Islamic Interpretation
Today I read a very interesting couple of articles by noted constitutional scholar Jack Balkin of Yale concerning originalism and living constitutionalism that I think might have some relevance to the Islamic context. I'll explain the thesis and then the connection to shari'a disputes.
Balkin's general thesis, which I am going to reduce obviously substantially (seriously, if you have Westlaw do check out the pieces in volume 24 of Constitutional Commentary), is that originalism and living constitutionalism are not incompatible, and it is a mistake for living constitutionalists to assist in the perpetuation of this false dichotomy. To make his case, Balkin makes a crucial distinction between holding to the original meaning of the Constitutional drafters (something he takes very seriously) and adhering to the original application of those words (something he does not). In other words, you can't change what the Constitution's words mean, you are bound by the text, but you can change how that text, and the principle underlying it, is understood and thus applied.
The example in one of the pieces is abortion. You have in the 14th Amendment a clear set of principles (due process, equal protection, privileges and immunities) that express a principle of anti-subordination. Nobody is of inferior status. Now that was understood by its drafters to refer almost exclusively to race, and any notions that it applied to gender as well were, at least at one point, in his words, "off the wall". But a tremendous social movement of women changed that, so that equal meant not only by race, but by gender too. Note the meaning of the words did not change--you didn't take the word "equal" and say it meant substitute sugar, nor did the principle of anti-subordination change, but its application did, quite radically. Treat abortion as a form of anti-subordination in that one is subjecting women to motherhood in a manner never contemplated for men, and the right to abortion is originalist, woven into the Constitution's fabric and far more defensible.
To Balkin, this makes far more sense than Scalia's insistence on "original application." The reason is that the latter is thoroughly unrealistic, everyone knows it, including Scalia himself. Under the original application theory, it's hard to justify the 1964 Civil Rights Act. Even Brown v. Board of Education is questionable. So advocates of original application accommodate based on respect for precedent and stability. The problem with that approach is that it's hardly certain (which precedents do we respect and which do we overturn) and it treats these broad social movements (civil rights, women's rights, etc.) as being somehow foreign to our constitutional tradition rather than an inherent and vital aspect of it. I've always found that troublesome actually, I'm glad someone said it finally. Can you imagine "well, yes the way it should be is that Congress cannot prevent race discrimination by private parties but we've had all this popular legislation like social security and now we have this Martin Luther King fellow so I guess we have to bend the ideal to the real". Excuse me, precisely what's so ideal about the original application? What's so polluting about MLK?
On the other hand, to Balkin, you can't change what words mean. Two senators per state means two senators per state, and the right to bear arms means the right to bear arms, or so he argues. "Commerce" means what it meant in 1789, as does the term "domestic violence" (riot, insurrection, not spousal abuse). What one changes is not the word meanings, but their applications, how they are understood. I don't change what the word "equal" means when I extend it from race equality to sex equality, I just change application.
Let me say I am far too much the Realist to accept this really, though I guess it is more palatable than Scalia's theories. Still, it will end up as unrealistic in some contexts I think, and therefore incapable of faithful application in any pragmatic sense. Thus, I find it, as I find most attempts to principled understanding of the Constitution (or any text), normatively appealing and descriptively, well, just not the way I see the world. It seems to give more weight to the words than to agency in determining outcome and thereby gives fidelity to meanings and words that I don't think exists absent the presence of agency.
That is, the reason we can't change two senators to a state no matter the size is because Wyoming would be mad if we did, and we have no basis upon which to realign interests that all would accept. So we deal with the existing distributions, which perhaps New Yorkers might not find entirely fair, but good enough, but not because of some words. I'm not saying the words don't mean anything, they're the basis of the Wyoming claim, strengthened considerably through historical practice. I am saying if Wyoming didn't care, then we would find a way to make this provision effectively meaningless. Then constitutional integrity under the Balkin theory is I think lost, as the fidelity to the words disappears, and we're in the real world, where the words might help determine a result, but are not a final control at all.
Here's a quick example--Article 2 says the electors who choose the president are chosen by a means chosen by the state legislature, not at all necessarily by election in a state. But we don't do that, except in fiction. Can you imagine what would happen if a state legislature actually chose on their own electors who favored the candidate who lost the state election? Allowed by the constitution, but not in our tradition. We don't care about the words, the tradition that has developed has developed contrary to original meanings of these words.
That said, I think Balkin is right that it is far easier to make an argument that claims fidelity to words than one that changes what they mean. The latter simply do not sell nearly as well, and so for the most part tend to be shunned. That doesn't control outcome in the real world in my view, I disagree with Balkin that it does (and in addition to the above will give my Islamic example, where the harder argument wins) but it does control the means by which the solution is achieved, rhetorically if nothing else. I illustrate with the examples in the Muslim tradition of polygamy and physical discipline of the wife.
In terms of polygamy, a far better case of using original meanings to achieve prohibitions can be made than in the case of wife discipline. The Qur'an suggests, as an earlier post makes clear, that if "equity" between wives cannot be achieved in multiple marriages, then it is forbidden, and a separate verse says such equity is impossible. That's not the only way to read these, but that's not the point, under the Balkin theory. The point is that social movements can, and I think he is right about this, push this interpretation and come to harmony both with text and with the notion of required monogamy. (It's not as simple as the above, there are Prophetic traditions to account for too, but the point is, the textual case is not as hard as in other contexts). Those social movements exist, but they aren't very strong right now and so in vast portions of the Muslim world, polygamy remains the rule and the understanding of what the Qur'an requires.
That said, the social movements, and international efforts, have had some effect on modern Muslim law. The general understanding is that courts do have some role to play in limiting the practice, precisely for the reasons advocated by the feminist movements as well as others. It's not, to use Balkin's phrase, as "off the wall" as it once was.
We turn now to striking the wife. Here the textual argument is more difficult. The Qur'anic verse reads (Shakir translation):
Men are the maintainers of women because Allah has made some of them to excel others and because they spend out of their property; the good women are therefore obedient, guarding the unseen as Allah has guarded; and (as to) those on whose part you fear desertion, admonish them, and leave them alone in the sleeping-places and beat them; then if they obey you, do not seek a way against them; surely Allah is High, Great.
I don't think the "desertion" part is precisely right, I think nushuz is translated more accurately as "rebellious", but otherwise this translation works if awkward in some respects.
The argument that has been made by some has been to change the meaning of the word "strike" into "set an example". It's not very convincing at all. First of all, I don't think the verb used transitively can sustain this meaning. For example, in another chapter, a verse reads "and these are the stories we have set as an example FOR humanity" (lil nas). But without the preposition "for" or "li" in Arabic, the object is the person being struck, or the story being told, not the person for whom it is being told. Secondly, think about it. First, admonish, then leave them alone, and then set an example? What does that mean? Finally, for those of us with moral compunctions against wife beating (me), you're left with the question, why the ambiguity? Surely a better word could be used than this if it was not to sanction striking.
So that position, argued as it is by some US academics interpreting Islamic law, hasn't been paid much attention to. And I think part of the reason that this is the case is that so many are sort of implicit Balkinians, which is to say that they are concerned that if you change what the words mean, you're left without fidelity to this text that is supposed to be sacred, and in which humanity is supposed to find its redemption.
That said, you'll get a far more sympathetic audience for the prohibition of spousal abuse than the prohibition of polygamy. That's not to say abuse does not exist, only that even traditionalists like Hussein Fadlallah (Hezbollah's spiritual leader) have come out on record against it in rather strong terms. The recent flareup in the Muslim world concerned whether or not women could strike beating husbands back in self defense, with a cleric from the Azhar saying yes. Great, now everyone is getting beat up, chalk one up for marital harmony.
So we have this situation where we can't change words, but we can't hold to the old position, and another solution must be sought. (I leave aside for now my friend Mohammad Fadel's solution that the state can prohibit the practice even if Islam allows it according to some--I want to focus on the idea that beating a wife is religiously prohibited). The solution has basically been to distinguish it out of existence. That is, it was meant for such a specific set of cases, in such a specific time, for such specific reasons, and any deviation from that is a serious crime itself earning one a beating. That's the crux of the argument, that striking a wife is not permitted in any realistic manner and in fact is criminal. Slavery, another one hard to pull by on textual grounds alone, is dealt with similarly. Narrow, thin, limit, distinguish but don't change the word meanings, no matter how appealing the result. And it works, because it gets you to the same place. Not everyone has the same point if view on this issue, but effective prohibition is a more prevalent position than in the case of polygamy, where the better textual argument lies.
In the US context, going back to my electors example, something similar happens. Constitution says legislature chooses the method, so we pretend that it does by having the legislature go through the formality of it. That leaves open the argument that the constitution is being observed. But not really, because we all know perfectly well that if a legislature ever actually ignored election results (not Florida in 2000, I mean make it a clear win for one side), or chose a means of selecting electors other than statewide popular vote, they couldn't get away with it. One way or another, they would be constrained from doing that. So they can't really choose even if they actually wanted to. Besides, if that bare formality was what fidelity to text means, well then I adopt the position that fidelity is necessary, and emphasize that this only constrains the form the outcome takes, it does not determine in any final fashion the content. Two senators per state might have to mean two per state, but it cannot prevent a custom, as firmly fixed as any constitutional text, that would require those senators to represent NOT their own constituencies but instead vote as a bigger state directs. To understand why that custom does not exist, you need more than words, you need to understand interest groups, social movements, economic forces and the like. They control the real distributions of power, they might be shaped in part by what the words say but the words can be dealt with if need be.
And so do the meanings of the words change, in all practical effect, even as we insist most ardently that they do not. . . .
HAH
Balkin's general thesis, which I am going to reduce obviously substantially (seriously, if you have Westlaw do check out the pieces in volume 24 of Constitutional Commentary), is that originalism and living constitutionalism are not incompatible, and it is a mistake for living constitutionalists to assist in the perpetuation of this false dichotomy. To make his case, Balkin makes a crucial distinction between holding to the original meaning of the Constitutional drafters (something he takes very seriously) and adhering to the original application of those words (something he does not). In other words, you can't change what the Constitution's words mean, you are bound by the text, but you can change how that text, and the principle underlying it, is understood and thus applied.
The example in one of the pieces is abortion. You have in the 14th Amendment a clear set of principles (due process, equal protection, privileges and immunities) that express a principle of anti-subordination. Nobody is of inferior status. Now that was understood by its drafters to refer almost exclusively to race, and any notions that it applied to gender as well were, at least at one point, in his words, "off the wall". But a tremendous social movement of women changed that, so that equal meant not only by race, but by gender too. Note the meaning of the words did not change--you didn't take the word "equal" and say it meant substitute sugar, nor did the principle of anti-subordination change, but its application did, quite radically. Treat abortion as a form of anti-subordination in that one is subjecting women to motherhood in a manner never contemplated for men, and the right to abortion is originalist, woven into the Constitution's fabric and far more defensible.
To Balkin, this makes far more sense than Scalia's insistence on "original application." The reason is that the latter is thoroughly unrealistic, everyone knows it, including Scalia himself. Under the original application theory, it's hard to justify the 1964 Civil Rights Act. Even Brown v. Board of Education is questionable. So advocates of original application accommodate based on respect for precedent and stability. The problem with that approach is that it's hardly certain (which precedents do we respect and which do we overturn) and it treats these broad social movements (civil rights, women's rights, etc.) as being somehow foreign to our constitutional tradition rather than an inherent and vital aspect of it. I've always found that troublesome actually, I'm glad someone said it finally. Can you imagine "well, yes the way it should be is that Congress cannot prevent race discrimination by private parties but we've had all this popular legislation like social security and now we have this Martin Luther King fellow so I guess we have to bend the ideal to the real". Excuse me, precisely what's so ideal about the original application? What's so polluting about MLK?
On the other hand, to Balkin, you can't change what words mean. Two senators per state means two senators per state, and the right to bear arms means the right to bear arms, or so he argues. "Commerce" means what it meant in 1789, as does the term "domestic violence" (riot, insurrection, not spousal abuse). What one changes is not the word meanings, but their applications, how they are understood. I don't change what the word "equal" means when I extend it from race equality to sex equality, I just change application.
Let me say I am far too much the Realist to accept this really, though I guess it is more palatable than Scalia's theories. Still, it will end up as unrealistic in some contexts I think, and therefore incapable of faithful application in any pragmatic sense. Thus, I find it, as I find most attempts to principled understanding of the Constitution (or any text), normatively appealing and descriptively, well, just not the way I see the world. It seems to give more weight to the words than to agency in determining outcome and thereby gives fidelity to meanings and words that I don't think exists absent the presence of agency.
That is, the reason we can't change two senators to a state no matter the size is because Wyoming would be mad if we did, and we have no basis upon which to realign interests that all would accept. So we deal with the existing distributions, which perhaps New Yorkers might not find entirely fair, but good enough, but not because of some words. I'm not saying the words don't mean anything, they're the basis of the Wyoming claim, strengthened considerably through historical practice. I am saying if Wyoming didn't care, then we would find a way to make this provision effectively meaningless. Then constitutional integrity under the Balkin theory is I think lost, as the fidelity to the words disappears, and we're in the real world, where the words might help determine a result, but are not a final control at all.
Here's a quick example--Article 2 says the electors who choose the president are chosen by a means chosen by the state legislature, not at all necessarily by election in a state. But we don't do that, except in fiction. Can you imagine what would happen if a state legislature actually chose on their own electors who favored the candidate who lost the state election? Allowed by the constitution, but not in our tradition. We don't care about the words, the tradition that has developed has developed contrary to original meanings of these words.
That said, I think Balkin is right that it is far easier to make an argument that claims fidelity to words than one that changes what they mean. The latter simply do not sell nearly as well, and so for the most part tend to be shunned. That doesn't control outcome in the real world in my view, I disagree with Balkin that it does (and in addition to the above will give my Islamic example, where the harder argument wins) but it does control the means by which the solution is achieved, rhetorically if nothing else. I illustrate with the examples in the Muslim tradition of polygamy and physical discipline of the wife.
In terms of polygamy, a far better case of using original meanings to achieve prohibitions can be made than in the case of wife discipline. The Qur'an suggests, as an earlier post makes clear, that if "equity" between wives cannot be achieved in multiple marriages, then it is forbidden, and a separate verse says such equity is impossible. That's not the only way to read these, but that's not the point, under the Balkin theory. The point is that social movements can, and I think he is right about this, push this interpretation and come to harmony both with text and with the notion of required monogamy. (It's not as simple as the above, there are Prophetic traditions to account for too, but the point is, the textual case is not as hard as in other contexts). Those social movements exist, but they aren't very strong right now and so in vast portions of the Muslim world, polygamy remains the rule and the understanding of what the Qur'an requires.
That said, the social movements, and international efforts, have had some effect on modern Muslim law. The general understanding is that courts do have some role to play in limiting the practice, precisely for the reasons advocated by the feminist movements as well as others. It's not, to use Balkin's phrase, as "off the wall" as it once was.
We turn now to striking the wife. Here the textual argument is more difficult. The Qur'anic verse reads (Shakir translation):
Men are the maintainers of women because Allah has made some of them to excel others and because they spend out of their property; the good women are therefore obedient, guarding the unseen as Allah has guarded; and (as to) those on whose part you fear desertion, admonish them, and leave them alone in the sleeping-places and beat them; then if they obey you, do not seek a way against them; surely Allah is High, Great.
I don't think the "desertion" part is precisely right, I think nushuz is translated more accurately as "rebellious", but otherwise this translation works if awkward in some respects.
The argument that has been made by some has been to change the meaning of the word "strike" into "set an example". It's not very convincing at all. First of all, I don't think the verb used transitively can sustain this meaning. For example, in another chapter, a verse reads "and these are the stories we have set as an example FOR humanity" (lil nas). But without the preposition "for" or "li" in Arabic, the object is the person being struck, or the story being told, not the person for whom it is being told. Secondly, think about it. First, admonish, then leave them alone, and then set an example? What does that mean? Finally, for those of us with moral compunctions against wife beating (me), you're left with the question, why the ambiguity? Surely a better word could be used than this if it was not to sanction striking.
So that position, argued as it is by some US academics interpreting Islamic law, hasn't been paid much attention to. And I think part of the reason that this is the case is that so many are sort of implicit Balkinians, which is to say that they are concerned that if you change what the words mean, you're left without fidelity to this text that is supposed to be sacred, and in which humanity is supposed to find its redemption.
That said, you'll get a far more sympathetic audience for the prohibition of spousal abuse than the prohibition of polygamy. That's not to say abuse does not exist, only that even traditionalists like Hussein Fadlallah (Hezbollah's spiritual leader) have come out on record against it in rather strong terms. The recent flareup in the Muslim world concerned whether or not women could strike beating husbands back in self defense, with a cleric from the Azhar saying yes. Great, now everyone is getting beat up, chalk one up for marital harmony.
So we have this situation where we can't change words, but we can't hold to the old position, and another solution must be sought. (I leave aside for now my friend Mohammad Fadel's solution that the state can prohibit the practice even if Islam allows it according to some--I want to focus on the idea that beating a wife is religiously prohibited). The solution has basically been to distinguish it out of existence. That is, it was meant for such a specific set of cases, in such a specific time, for such specific reasons, and any deviation from that is a serious crime itself earning one a beating. That's the crux of the argument, that striking a wife is not permitted in any realistic manner and in fact is criminal. Slavery, another one hard to pull by on textual grounds alone, is dealt with similarly. Narrow, thin, limit, distinguish but don't change the word meanings, no matter how appealing the result. And it works, because it gets you to the same place. Not everyone has the same point if view on this issue, but effective prohibition is a more prevalent position than in the case of polygamy, where the better textual argument lies.
In the US context, going back to my electors example, something similar happens. Constitution says legislature chooses the method, so we pretend that it does by having the legislature go through the formality of it. That leaves open the argument that the constitution is being observed. But not really, because we all know perfectly well that if a legislature ever actually ignored election results (not Florida in 2000, I mean make it a clear win for one side), or chose a means of selecting electors other than statewide popular vote, they couldn't get away with it. One way or another, they would be constrained from doing that. So they can't really choose even if they actually wanted to. Besides, if that bare formality was what fidelity to text means, well then I adopt the position that fidelity is necessary, and emphasize that this only constrains the form the outcome takes, it does not determine in any final fashion the content. Two senators per state might have to mean two per state, but it cannot prevent a custom, as firmly fixed as any constitutional text, that would require those senators to represent NOT their own constituencies but instead vote as a bigger state directs. To understand why that custom does not exist, you need more than words, you need to understand interest groups, social movements, economic forces and the like. They control the real distributions of power, they might be shaped in part by what the words say but the words can be dealt with if need be.
And so do the meanings of the words change, in all practical effect, even as we insist most ardently that they do not. . . .
HAH
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