President Bush has used this phrase with increasing frequency lately; however, he has not given great details about the issue. In recent history we have separated theology from law, and law has not retained what is fundamental to theology: responsible hermeneutical principles of interpretation.
In law school, one is lucky if he/she gets more than a lecture on interpreting texts. I have the advantage of having attended both law school and a theological seminary. In my seminary experience, we spent virtually every other class dealing with the difference between exegesis and isogesis. Exegesis is the critical explanation of a text that seeks to draw from it its original meaning. Isogesis is the process of taking own’s own opinions and putting them into the text.
Because law schools no longer teach responsible hermeneutics, judges are now interpreting the text in a manner that is similar to what it is like driving a boat without a rudder. They have no clear guidance, and so they are often tempted to place their own opinions into the texts of constitutions. By doing so, not only the rights in issue in those cases, but all constitutional rights become nothing more than a lottery of judicial whim that can be given or taken away by any 25-year old law clerk who can exercise undue influence over a distracted judge.
When the constitution was written, judges did not have the power of judicial review to strike down any statute. Constitutional scholars will tell you that the 1803 Marbury v. Madison decision represents argument of authority for the judicial branch and not arguments for authority. It is often said that the U.S. Supreme Court is not final because it is infallible. It is infallible only because it is final.
Our three branched government was intended to have checks and balances. The Federalist Papers noted that the judicial branch was to be the least harmful. History has not proven that to be true. The single Roe v. Wade decision has led through abortion to more loss of life than all of our national wars combined.
We now have a movement for a constitutional amendment to preserve marriage. I believe this a once in a lifetime opportunity to pass a better amendment. Let us place a check on the judicial branch by either removing the right of judicial review unless there is a unanimous verdict among all judges, or better yet, allow Congress by a super-majority with the executive approval, to overrule any judicial opinion. This amendment will go a long way to ending “black robe” disease as we know it.
