The End of the Law

Historical-grammatical exegesis is what conservative theologians do. Or, so many of them appear to think. The reasoning seems impeccable: By sticking to the text—its grammar, as well as its literary and historical background—biblical theologians can put up an objective bulwark against postmodern subjectivist and revisionist interpretations of the biblical text. Sticking to the text and determining authorial intent are the two key defense tactics of conservative Christians: Only the written word is the law.

Originalism is to judicial theory as historical-grammatical method is to biblical hermeneutics. Originalism, by insisting that judges should focus on the authorial intentionality of the drafters of the constitution and on the textual wording of the law itself, aims to hold at bay the subjective opinions of current-day justices along with the drifting cultural mores of society. Conservative legal scholars, wary of the judicial branch adopting a legislative role, insist that the judge’s task is one of interpreting the law, not of writing it.

Originalists have a point, as do adherents of the historical-grammatical method. “The dogma lives loudly in you,” Sen. Dianne Feinstein exclaimed when she questioned federal circuit court nominee Amy Coney Barrett in September 2017. Feinstein appears convinced that when a judge allows her personal, religious views to affect her decisions, she has lost the objectivity of a judge. Despite her overall misjudgment, Feinstein does have a point: Personal views can get in the way of a proper reading of the text.

Of course, the encounter between Feinstein and Barrett is loaded with irony. Barrett is a conservative originalist, and as such she is unlikely to allow her deeply held personal convictions to affect her judicial rulings. As a liberal senator, Feinstein is much more likely than Barrett to turn to society’s viewpoints as they have evolved over time as a legitimate source of judicial pronouncements. Religious conservatives like Barrett tend to stick to the letter of the law; liberal democrats like Feinstein keep in step with a living constitution.

The problem is this: Liberals have a point in their dynamic view of constitutional law. Textualism is a poor safeguard against attempts to achieve a Great Reset by judiciary means, just as it is inadequate to keep at bay revisionary doctrinal or moral schools of thought. 

Conservatives seem to have wisened up to the limited value of originalism in the wake of the U.S. Supreme Court’s infamous Bostock v. Clayton County ruling. The Trump-appointed originalist Neil Gorsuch, writing the majority decision, opined that funeral homes are not at liberty to fire an employee who undergoes gender surgery, because it would be discrimination on the basis of sex.

Title VII of the Civil Rights Act, in prohibiting discrimination on the basis of sex, precludes discrimination also against transgender individuals, so Gorsuch argued. Burnishing his impeccably originalist credentials, Gorsuch wrote: “Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. But the limits of the drafters’ imagination supply no reason to ignore the law's demands. Only the written word is the law, and all persons are entitled to its benefit.” Gorsuch’s judgment focuses on the text itself. And since the written word prohibits discrimination on the basis of sex, it goes against the law to discriminate against a man who self-identifies as a woman.

The big question is: Where do Christian jurists go after the 2020 Gorsuch ruling? They have long held a dim view of the living constitution approach—typically animated by subjective pragmatism. But now it appears that even originalism can no longer be counted on to deliver the desired result.

But what is the desired result? Or, to put it in terms that may apply both to biblical interpretation and legal theory, what is the end or aim (telos) of the law? With unsurpassable boldness, Saint Paul asserts: Christ is the “end of the law” (Rom. 10:4). We should pause at the audacity of the claim and let his words sink in.

Of course, I realize Paul neither directly addresses the question of biblical exegesis nor discusses judicial theories in Romans 10. Still, the phrase occurs in the context of his prayer for his fellow Jews, who are “ignorant of the righteousness of God” and seek to establish their own. Paul responds with the comment that “Christ is the end of the law for righteousness to everyone who believes.” It may be true that only the written word is the law. But Christ is the telos of righteousness, and his justice judges all law.

Both biblical interpretation and judicial theory need a theological telos. The dilemma of textualism versus living constitution can be resolved only when the laws of nation states—even venerable arrangements such as the Constitution of the United States—are normed by and interpreted in light of the gospel. Christ himself is the end of the law.

We must recover Paul’s boldness of faith, both in political theory and in biblical interpretation. Christ is the telos. Without the telos shaping our judicial opinions and exegetical forays, the law will remain a dead letter for some, while serving as an excuse to impose a Great Reset for others.

Gorsuch may be right: Only the written word is the law. But Christian political theory will add: And Christ is the end of the law.

Hans Boersma is the Saint Benedict Servants of Christ Professor in Ascetical Theology at Nashotah House Theological Seminary.

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