E Unum Pluribus: Comparative Textualism & Constitutional Faiths

Guest Blogger

This post was prepared for a roundtable on Wrestling with Religious Diversity, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Intisar A. Rabb 

From one text comes many interpretations: e unum pluribus. This formula is of course an inversion of e pluribus unum (“from many, one”)—the motto for American democracy emblazoned on our money to provide as often a reminder to [property-owning] adherents of America’s “civil religion” of shared constitutional ideals, constitutional aspirations, constitutional faiths.[1] By making faiths plural, I am in part ceding the about-face that Sandy Levinson, former adherent, made in his Foreword to a new edition of his book Constitutional Faith. There, he concluded that, although the Constitution’s generalities are still fluid and thus negotiable, many of its structural elements have settled in ways that make governance and addressing problems of injustice hard.[2] The Supreme Court’s Term this year perhaps proves the point.[3] 

Taking up Sandy’s charge that scholars rarely discuss the general elements that make interpretation hard, I offer some comparative perspective from a seemingly unlikely place—Islam’s pluralistic legal system—to suggest that in any legal interpretation, including the most controversial in the U.S., difficult interpretive elements are never about a single constitutional faith. Nor are they even about religion, per se, even when they seem to be. They are about a plurality of constitutional faiths despite a single legal text. Those elements motivate core differences in the Court’s interpretive debates over fundamental privileges versus promises, textualism versus purposivism, status quo-preserving originalism vs. rights-promoting pragmatism.[4] I aim to explore those elements with an eye to the plurality of opinions that emerge from shared legal texts, now that stare decisis is in question as a way to settle them and now that interpretations of history and tradition matter a lot toward the same end. 

Consider Dobbs v. Jackson Women’s Health Organization, the Court’s recent decision overturning its 1973 decision Roe v. Wade and its companion 1992 decision Planned Parenthood v. Casey.[5] Differing interpretive approaches and conclusions in its majority and dissenting opinions display competing visions of “history and tradition.”[6] Those competing visions reflexively drive the interpretive approaches that dictate which history and which traditions to adopt—in Dobbs, a supermajority adopted an originalism that somehow excluded the history of slavery and its ongoing consequences, as well as the Constitution’s Reconstruction Amendments meant to address it, as Professor Michelle Goodwin has powerfully pointed out.[7] And both sides reveal competing accounts of the otherwise agreed-upon common law doctrine of stare decisis and when to forego it. In the end, all of these disagreements about history and interpretive method reveal differing value commitments in the guise of competing beliefs, not explicitly in religious faith (despite its obvious relevance to abortion),[8] but in the Constitution and the role of the Court: that is, competing constitutional faiths, plural.[9] 

As with the popular religious and political polarization about abortion, interpretive polarization was evident in the questions presented before the Court, with no room for nuance, discussion, or compromise. Each side was at pains to point out that only one position should and could reign supreme, and Justice Alito was happy to oblige in Dobbs.[10] But in reality, on the court, judges must wrestle with diversity.[11]

In short, and as Dobbs exemplifies, interpretive disagreement on the Court is less often about religious difference in the traditional sense than it is about civil religious differences and a plurality of constitutional faiths. To be sure, it is not that religion is irrelevant to the question. Far from it. The popular and political frameworks surrounding the “right to life,” and sometimes even the “right to choose,” are either inspired by or put in the language of different religious worldviews about the start and sacredness of life or religious freedom, and the religious-moral limitations on curtailing either.[12] Since Dobbs (both the leaked draft and the final opinion), American Muslims have responded in spades about the diversity of Islamic law positions on when life begins and prior questions of sexual propriety within marriage, when abortion is thus plausibly valid, and the extent to which anti-abortion legislation—without exceptions—may impinge on their constitutional right to free exercise as a result.[13] But I do not seek to resolve the debates about religion and abortion; they are somewhat marginal to the Court’s decision, which is by no means a religious establishment/free exercise case. To wit: despite that public religion discourse surrounding abortion, the Dobbs Court analysis took religion as so marginal to its analysis that the term, on its own, never actually appears in its opinions.[14] Rather, the question I’m concerned with here is whether or how we might think about doctrines (especially with the questions placed on stare decisis) that might better recognize a diversity of opinions even if one reigns supreme, while ensuring the rule of law. For this, I wish to look at the idea of constitutional faiths and comparative textualism. 

In considering how American judges approach statutory interpretation with appeal to constitutional faith(s), several questions arise immediately: constitutional faith in what? Should our faith lay in constitutional structure or rights, in originalism or evolving societal understandings and commitments, in procedural or substantive norms? How does better recognition of interpretive pluralism and judicial choice help resolve the formal-moral dilemma? In this short essay, I don’t seek to answer those questions, but I do seek to uncover the significance of asking them. 

I will proceed, in Part I, with examples of pluralistic statutory interpretation using common legal canons in American law. I will next examine, in Part II, interpretive pluralism in Islamic law and spotlight an important legal canon that medieval Muslim jurists devised to accommodate that pluralism. Finally, in Part III, I will conclude with a return to our initial questions for American law: having considered canons that guide interpretive pluralism from another system and reflect different ‘faiths’, how might American jurists better accommodate the fact that statutory interpretation is a pluralistic exercise, and what does that mean for modern notions of constitutional faith(s)? 

Part I: American Interpretive Pluralism 

First, consider the use of legal canons, which leads to interpretive pluralism in American statutory interpretation, even on a majority textualist Supreme Court. Today’s justices make generous use of legal canons—those old principles of interpretation that come from Roman law and are often, perhaps surprisingly, shared with Islamic law.[15] After Karl Llewelyn excoriated the use of these legal canons to interpret statutes as incoherent over half a century ago, Justice Scalia and his textualist colleagues (and disciples) rehabilitated them.[16] They are now favored tools for Justices Barrett, Kavanaugh, Gorsuch, Alito, Roberts, and Thomas. For that matter, Justices Breyer, Kagan, and Sotomayor, as well as Justice Brown Jackson (while a federal judge), use those canons with increasing frequency in statutory interpretation cases as well.[17] Recognizing that fact, Justice Elena Kagan and a leading nontextualist scholar of statutory interpretation, Professor William Eskridge, have quipped, “[w]e’re all textualists now” (well, before walking that statement back in dissent to this past Term’s environmental protection case).[18] For interpreting statutes, our “most fundamental semantic rule of interpretation,” according to textualists Justice Antonin Scalia and Bryan Garner,[19] and interpretation’s “prime directive,” in the words of Prof. Eskridge is the ordinary meaning canon: the requirement to interpret statutes according to their plain or ordinary meaning.[20] 

The agreed-upon ordinary meaning canon produces multiple interpretations, and it manages to divide textualists from one another. Take the interpretive pluralism that emerged among textualists applying that canon in Bostock v. Clayton County (2020).[21] Writing for the majority, Justice Neil Gorsuch used the ordinary meaning canon to extend Title VII’s prohibition of discrimination “on the basis of sex” to include sexual orientation and gender identity. In dissent, Justice Brett Kavanaugh (writing separately from two other dissenting textualist justices), rejected that application of ordinary meaning (though not the canon or the text of the statute itself); he further advocated applying another canon to inform ordinary meaning itself: the rule against superfluity, which would avoid rendering the phrase “sexual orientation” in other statutes superfluous. 

That same ordinary meaning canon produces interpretive pluralism that divides nontextualists from one another as well. Consider the now infamous case, United States v. Muscarello from two decades ago. In 1998, the Court appealed to the ordinary meaning canon to determine whether a firearms statute that imposed a sentencing enhancement for anyone who “carries a firearm” in the course of a drug trafficking crime applied to a man who had a gun in his locked glove compartment on the way to a drug sale.[22] Writing for the majority, Justice Stephen Breyer concluded that “carries” simply meant to transport or convey from one place to another, and thus upheld the enhancement imposed on Mr. Muscarello, who had a gun in a locked glove compartment on his way to drug sale.[23] In dissent, Justice Ruther Bader Ginsburg (whom Justice Scalia joined), rejected the majority interpretation in favor of a contextual reading of the phrase “carries a firearm” (not just “carries” alone) to mean “packing heat”— that is, that the whole phrase, pertains to firearms that are both transported and readily accessible in the course of a drug transaction. [24] She added that the fact of the majority’s disagreement and the indeterminacy of interpretive aids to resolve it left a lingering ambiguity that was to be resolved with another substantive legal canon that has constitutional foundations: the rule of lenity.[25] That venerable rule directs courts faced with ambiguity in criminal statutes to adopt the narrower meaning, in favor of the defendant.[26] 

In both cases, interpretive ambiguity remained. Constitutional faith, as if a single belief, did not resolve it. All agreed on the singular constitution, and the singular statutory text. But competing visions of the Constitution’s structure and rights requirements and in the Court’s role in preserving them through statutory interpretation yielded each judgment and each dissent. Each faithfully adhered to different interpretive approached lodged in their different constitutional faiths. 

Part II: Islamic Interpretive Pluralism 

Next, we turn to Islamic law to consider related legal canons that exemplify interpretive pluralism and how a contrastive legal system approached it in a very different system from our own. To begin with, it is worth pointing out that Islamic law has some of the same textualist canons as does American law. For example, it has its own ordinary meaning canon: judges are to apply the plain and ordinary meaning of the text (ẓāhir) unless contextual clues indicate otherwise. That canon yields its own interpretive pluralism, with majority and minority groups of jurists disagreeing about the ordinary meaning of a single text.[27] But for purposes of illustrating a comparative approach to questions of interpretive pluralism, here, I want to focus on another legal canon in Islamic law that attempts to recognize and address the fact of that pluralism in a system without a Supreme Court and thus without a final say at any one point in history in a system that nevertheless used interpretation to maintain the rule of law of historically. 

What we might label Islamic law’s interpretive pluralism canon says that “one interpretation cannot be overturned by another interpretation: al-ijtihād lā yunqaḍ biʾl-ijtihād.” A corollary, that “every interpreter is correct: kull mujtahid muṣīb,” suggests that there is no right answer, or if there is, that knowledge of it lies only with the divine.[28] Muslim jurists asserted that interpreters receive a reward for the interpretive exercise itself (and doubly so if they get it right—but only in the afterlife, as the morally correct answer is known only to God and must therefore be subject to constant deliberation and negotiation by interpreters of law with differing approaches). These same Muslim jurists asserted that ordinary subjects and citizens are duty-bound to follow the dictates of recognized Islamic laws, even when they are choosing many rulings on a singular same issue. In short, Muslim jurists took morality to be an unknown ideal that must be pursued anew with every new interpretation and every new understanding; that fact required them to recognize all interpretations that faithfully undergo a sound interpretive process. These precepts work together to create what one scholar calls Islam’s radical legal pluralism: “the ability to countenance multiple interpretations as equally authoritative.”[29] 

What does this have to do with constitutional faith? It is, in a word, plural. For the Muslim faithful, Islamic legal pluralism translates into a certain conviction (and doubt!) in the interpretive process that trained jurists produce, against a backdrop of a divine-moral truth they may never know, but that they must nevertheless keep trying to access in every encounter with interpretation as understandings and societal circumstances evolve over time and place. For judges applying the law, this legal pluralism thus readily acknowledges that they must always be ready to choose between a range of plausible interpretations—past and present. Doing so requires them to draw on larger substantive-moral principles from Islam’s foundational texts and practices that best apply to a particular case at hand as they understand questions of fact and law with the benefit of deliberation and even comparative insight. It is such insight that led modern jurists to declare slavery itself contrary to Islamic law even though the Qurʾān itself once tacitly acknowledged another version of it.[30] For Muslim judges and jurists engaged in textual-legal interpretation, legal pluralism supports religious or ‘constitutional’ faiths in both sound interpretive processes and a moral ideal that they must constantly negotiate even if they can never definitively say they have reached it. 

Part III: American Interpretive Pluralism & Questions of Constitutional Faiths 

Finally, we return to questions I raised at the outset with American law, in hopes that the detour to questions of comparative textualism from Islamic law has thrown into relief the centrality of interpretive pluralism and the importance of identifying the ways judges tend to resolve it with respect to our own notions of constitutional faith. The portrait of American interpretive pluralism from cases applying a shared ordinary meaning canon to a singular statute is just one example among scores of statutory interpretation cases from the U.S. Supreme Court (which are only increasing, with the rise of textualism and the attendant use of legal canons). That interpretive pluralism requires judges to make choices between a range of plausible outcomes. As other scholars have readily pointed out, that choice is never a purely text-based endeavor devoid of substantive values. Instead, it typically appeals to a vision of the Constitution and to the workings of other branches of government in modern society. In other words, it is an appeal to a particular version of constitutional faith, or put differently, a pluralistic version of it: constitutional faiths. 

The constitutional faith that any one interpreter adopts is heavily inflected with notions of history and tradition (and with it, morality and justice) that they take the Constitution to embody and to instruct judges on in turn. Textualist visions of statutory originalism, for example, call up a vision of constitutional history that claims that the Founders sought to preserve the rule of law (and thus the status quo). This vision perceives that America’s constitutional structure means that Article 1, § 7 supports a democracy-forcing value of strong legislative deference and curtailed judicial interpretation that favors narrow readings of statutory texts (notwithstanding congressional gridlock that belies the ostensible reason for those narrow readings: to force a clear statement from Congress if warranted). Contrary visions of constitutional history and statutory purpose point out that legislation is an act that, by its very nature, seeks to change the status quo for some purpose communicated through the text of statutes. These visons also take the statutory text, for similar Article 1, § 7 structural reasons, as a starting point. Yet, believers in this second vision read the Founders (and the Constitution) to have imposed on Article III judges a role that only they are constitutionally empowered and institutionally best situated to fulfill: a duty to incorporate and negotiate constitutional norms—including the structures and values alike that favor legislative supremacy, individual rights, and democratic interests together. 

The rise of legal canons in statutory interpretation on today’s Supreme Court means that judicial interpreters now face a choice. Judges might choose the constitutional faith in structure, originalism, and process that assumes away reality or the need for negotiation to meet the hard demands of governance and justice. Or they might choose a constitutional faith that begins with constitutional structure and is open to negotiating how best to respond to institutional realities, create checks and balances, and step into judicial roles that best facilitate governance and justice. That vision easily includes reconsidering channels of a now quiet court-congress dialogue that accommodates congressional preferences and constitutional norms necessary to resolve disputed statutory and constitutional questions. This latter conception of faith is one that Islamic law judges did not (and could not) pursue. They devised instead their own notion of God and of ‘constitutional’ faiths from their foundational sources. If it is true, as I have suggested, that statutory and constitutional interpretation frequently yields interpretive pluralism, then it is worth delineating and debating to which of the constitutional faiths judges will adhere, perhaps in every case and explicitly debating the right interpretive methods to deploy. The question offers unique prospect for advancing the promise of justice and American democracy. 

*           *           * 

My central argument here has been that the inverted phrase, e unum pluribus, provides a more accurate slogan for American legal interpretation than its reverse. It prompts us to take seriously the notion that judges must often choose between a diverse set of plausible interpretations of the same statutory or constitutional text. Moreover, I argue, this notion helps us recognize that judges already make that choice with appeal to two different types of constitutional faiths. In the proceeding discussion, I sought to highlight as much through a comparative-and-contrastive foray into interpretation in the very different system of classical Islamic law, which recognizes pluralistic principles of diverse interpretations, and faiths, forthrightly.[31] And I suggest that, if stare decisis is on the chopping block in American law, we might imagine a new set of canons that better support approaches to interpretation and rule of law that accommodate plurality instead of all-or-nothing approaches to history and tradition. 

In the end, two competing visions of the history and society in statutory interpretation suggest two different constitutional faiths. In almost every decision, the Court debates how best to interpret the Constitution as American scripture, as if the arbiters of America’s civil religion. My basic point is that—whether the reader takes or leaves the comparative perspective—we might do well to resolve recurring questions of interpretive pluralism from a single statutory text (that is, e unum pluribus: from one, many), by recognizing the pluralism of our constitutional faiths and more forthrightly seeking to address essential questions of which one we believe in, and why. If not stare decisis, comprehensive history and tradition, and other settled expressions of constitutional faith, what are the new legal canons that drive interpretation? 

Intisar A. Rabb is Professor of Law, Professor of History, and Director of the Program in Islamic Law at Harvard Law School. You can contact her via luckau@law.harvard.edu.