How Many Constitutional Amendments Are There?

The short answer: the number of times the Supreme Court has ruled on a constitutional question. Every time the Supreme Court grants certiorari, allows a case to move ‘upwards’ from state and Federal courts to its chambers, and then proceeds to rule–keeping in mind the supposedly relevant precedents, and on the basis of a coherent theory of the interpretation of legal texts–it offers us an amended constitution. Every act of interpretation–sometimes plain literalist, sometimes originalist, sometimes purposive–adds meaning and texture to the text of the articles of the Constitution. Thus the content of the Fourth Amendment is not to be found in the Constitution; it is to be found in the cumulative history of all Supreme Court rulings on cases that have rested on contested interpretations of the Amendment. What does ‘unreasonable’ mean? What does ‘search’ mean? What does ‘seizure’ mean? What does ‘persons’ mean? What does ‘effects’ mean? What does ‘probable cause’ mean? To decipher this meaning, scattered over thousands and thousands of pages of Supreme Court rulings is an almost insuperable and intractable task; it is much easier, therefore, to fall back on the simplest formulation of all: ‘The Fourth Amendment says that…’. But the filling out of that particular that-clause will call for the expenditure of considerable ink, and in the end, it will appear that the protections of the Fourth Amendment are considerably more ambiguous–in several dimensions–than previously imagined, by both its detractors and proponents alike.

These considerations show that talk of ‘constitutional protections’ must always proceed hand in hand with talk of constitutional interpretation, with the history of actual supreme court rulings on the constitutional question under discussion. Such inclusion is especially necessary when giving someone legal advice; as Justice Holmes sagely pointed out many years ago, the law is what the judges say it is: “The prophecies of what the courts will do in fact, and nothing more pretentious.”

Our nation is entering a period of great legal uncertainty; there is much talk of taking cover under constitutional protections, of seeking refuge from an authoritarian government under the covering canopy of the Bill of Rights. But the text of the Bill of Rights is not sufficient to provide such protection; the Supreme Court rulings on Bill of Rights cases are far more germane. To look only to the Constitution is dangerously complacent; talk of legal rights without actual legal protections is hollow.

Many a patriot is disappointed and disillusioned to find out that in point of fact the Fourth Amendment is almost hollow in content; its protections systematically eviscerated over the years by repeated weakenings through selective, ideological, and politically motivated interpretation. Mass surveillance; warrantless searches; stop and frisk; the list goes on. Where is the Fourth Amendment?, the patriot asks. The answer is: not in a small booklet, but in that section of the law school’s library that deals with constitutional law.

Constitutional conventions, two-thirds majorities, ratifications by state legislatures–such is the machinery of the constitutional amendment by legislative fiat. Such convolutions are kludgy compared to the awesomely efficient method of Supreme Court rulings; there, in the foundry of the Supreme Court’s chambers, new meanings are forged every year, every Supreme Court season.

Stephen Jay Gould’s Weak Argument For Science And Religion’s ‘Separate Domains’

Stephen Jay Gould‘s famous ‘Two Separate Domains‘ argues, roughly, that religion and science operate in different domains of inquiry, and as such do not conflict with each other:

We get the age of rocks, and religion retains the rock of ages; we study how the heavens go, and they determine how to go to heaven.

Or, science gets the descriptive and the quantitative, religion gets the prescriptive and the qualitative. Facts on one side; values on the other.

‘Two Separate Domains’ is an essay I read some years ago; yesterday, I discussed it with my philosophy of religion class. On this revisitation, I was struck by how weak and narrowly focused Gould’s arguments are.

Most crucially, Gould is almost entirely concerned with responding to a very particular religious tradition: Christianity. Moreover, within that, he takes himself to be pushing back against that species of Protestant fundamentalism which would indulge in literal interpretations of the Bible to promulgate creationism:

I do not doubt that one could find an occasional nun who would prefer to teach creationism in her parochial school biology class or an occasional orthodox rabbi who does the same in his yeshiva, but creationism based on biblical literalism makes little sense in either Catholicism or Judaism for neither religion maintains any extensive tradition for reading the Bible as literal truth rather than illuminating literature, based partly on metaphor and allegory…and demanding interpretation for proper understanding. Most Protestant groups, of course, take the same position—the fundamentalist fringe notwithstanding.

Later in the essay, Gould concentrates on responding to a pair of Papal encyclicals on the subject of evolution, issued by Pius XII in 1950 and John Paul II in 1996, the differences between which–the latter takes on board the scientific evidence for evolution–Gould takes as evidence for the flexibility of the Church to respond to scientific findings in a manner which preserves its own ‘non-overlapping magisteria.’

Several problems now present themselves. First, there are a diversity of hermeneutical approaches in different religious traditions, with varying reliance on metaphorical, allegorical, literal, or historically contextualized readings, which generate conflicts of various degrees with the content of scientific statements. (As a student in my class said, getting rid of literal interpretations in Islam would remove, for many followers, their reason for believing in the Koran’s claims.) Second, Gould relies on an untenable fact-value distinction. But science’s empirical claims are infused with value-laden choices, and religion’s value-laden claims rest on empirical foundations (neither domain of inquiry offers a purely descriptive or prescriptive claim and are thus entangled.) Third, and perhaps most crucially in my opinion, Gould’s task is made considerably easier–at least apparently, in this essay–by concentrating on a religious tradition which has a central church–the Catholic–with an authoritative head, the Pope, who issues documents which articulate a position representative of the religious institution, and which can be expected to serve as instruction for its many followers’ practices and beliefs. That is, that religion’s practices can be usefully understood as being guided by such institutions, persons, and writings–they are representative of it. Such is obviously not the case with many other religious traditions, and I simply cannot see Gould’s strategy working for Islam or Judaism or Hinduism. (Buddhism is another matter altogether.)

Gould’s irenic stance is admirable, but I cannot see that the strategy adopted in this essay advances his central thesis very much.