An acquaintance recently attempted to argue against Originalism as a doctrine of constitutional interpretation by arguing that Latter-days Saints who believe in continuing revelation through a living prophet are bound to reject originalsm. I found his argument extremely unconvincing because there are some pretty fundamental differences between the role of judges in a democratic republic and the role of prophets and apostles in the Kingdom of God. But as I delved deeper onto the topic, I found that highlighting these differences was illuminating as it shed light on both the proper role of judges and on the nature of decision making in God’s Church.
We often refer to church leaders including and especially Bishops as judges in Israel. Accordingly, it is important to understand what we mean when we refer to church leaders as judges and how this might differ from member of the bench.
Before I begin, a working definition of Originalism is also in order. I define originalism as a theory of textual interpretation which is predicated on the belief that legal texts (constitutions, statutes, and regulations) have a fixed meaning at the moment of enactment and that the role of the judiciary is to faithful determine and apply that meaning rather than to attempt to expand or abrogate the meaning. There are a lot of nuances in how originalists try to determine what the original meaning is (does one look to the intentions of those who wrote the law or to what the public would have understood those words to mean?), but the thrust of originalism is that the role of a judge is as an interpreter rather than lawmaker.
The Word of Wisdom and Originalism
Gospel doctrine and interpretation is decidedly not originalist in nature. A good example of this would be interpretations of the Word of Wisdom. An originalist interpretation of the word of wisdom would find that beer and other mild alcoholic drinks were permitted, while meat was allowed only in extreme circumstances like famine. And the whole revelation would be seen as a recommendation rather than a mandate.
So why do we not read the Word of Wisdom in that way? In the Church, we believe in continuing revelation through Prophets and Apostles. This process of continuing revelation sometimes takes the form of formal canonized revelations like the revelation lifting the priesthood ban. But more often than not, it this is an iterative process where Church leaders over time gain additional insight and knowledge. That is the case with the Word of Wisdom over time church leaders better defined the terms of the revelation and expanded it into a requirement for temple worthiness.
It is also significant that while certain changes are sustained by Church members in general conference, many of these changes regarding the Word of Wisdom do not appear to have been.
Yet we accept the shift from advice to mandatory temple recommend requirement, and do not by and large question the legitimacy of this shift.
In contrast, it would be absolutely outrageous if federal judges began to enforce severe penalties on people for not complying with a health guidance that had never contained penalties and that had vague and ambiguous requirements. And this practice would still remain problematic even if the passage of time had normalized the practice.
So what gives enforcement of the Word of Wisdom legitimacy even though the text of the revelation is unchanged and there appears to have been no formal process of common consent on the changes?
Divine Authority and Civic Authority
The simplest answer is that the basis of authority in the Kingdom of God is decidedly different form that in a democratic-republic. With the interpretation of Gospel principles and commandments we believe in continuing revelation from divine sources. This means that the prophet and apostles are fully empowered to receive interpretive guidance from God and even to completely alter or change a principle. There is no need for a vote or any other deliberative process. God speaks through his chosen prophet and the law is changed. If President Nelson declares the word of wisdom does not allow for drinking beer (or green tea, or recreational marijuana) that is the will of God regardless of what the original meaning was. That’s because God is the ultimate sovereign and when he speaks through a prophet that word is authoritative. (I recognize that this is simplified and glosses over the long standing question of when a prophet is in fact speaking as a prophet).
With legal interpretation the situation is quite different. The ultimate sovereigns are the people. Governments are given power only through the consent of the governed. There is a formal structure or process for creating law. When that process is followed the law has legitimacy. When it is ignored the product cannot truly be called law because it lacks any legitimacy.
The separation of powers
This separation of powers is integral to the Constitution’s design of government. Laws must originate from the legislature which is seen as the most democratically accountable branch of government. The lawmaking process is quite difficult requiring both the House of Representatives and the Senate to agree to identical language for a law and then for either the president to sign the law or for a veto proof majority to emerge.
Judges do not play a role in this lawmaking process and this is by design. Their purpose is to interpret the laws that are enacted through the proper channels not to create them. In doing so, they must necessarily ask what the law meant at the time when it was enacted, because to do anything else would be a form of judicial lawmaking. Put another way, judges are not empowered to sit as prophets and apostles. They do not receive divine revelation to alter or change the meaning of the law.
There is no similar separation of powers in the Kingdom of God. Legislative, executive, and judicial power is combined into a single channel. That power may be vertically distributed down to local units, but at the highest levels of governance it remains concentrated in First Presidency and the Quorum of the Twelve. These same bodies are responsible for promulgating policy, interpreting policy, and adjudicating disputes. This concentration in power makes sense when we have leaders who are called of God and expected to implement God’s will rather than their own.
Other Significant Differences
There are some other significant differences between judges and prophets/apostles. Judges are appointed through political appointments (in the federal government and in many states) or through partisan elections (in some other states). Judges are not selected because they are expected to have preternatural acuity or insight. By contrast, the appointment of a prophet/apostle comes through a divine calling from God. They are expected to exercise spiritual gifts and to have revelatory insight even on topics outside of their earthly expertise. As President Ezra Taft Benson put it, “The prophet is not required to have any particular earthly training or diplomas to speak on any subject or act on any matter at any time.” This divine commission gives a prophet/apostle a different type of legitimacy.
Furthermore, while members of the judiciary are expected to impartially apply the law, that does not mean that personal political persuasion or opinion will never enter into the decision making calculus. Judges need methodological constraints in order to avoid imposing their own political and social biases. Originalism is one example of a methodology which serves to constrain unbridled judicial decision making and to improve the objectivity of the judicial process.
Of course, Prophets are also fallible and subject to their own weaknesses. There are processes in the Church that help to contain this tendency such as having the First Presidency and Quorum of the Twelve operate based on a principle of unanimity. But because we believe that direct revelation can flow from heaven, there is not the same need to impose the methodological constraints of originalism
Indeed, when the Prophet and Apostles set policy, the whole tenor and purpose of that decision is fundamentally different. They are not asking what is the most faithful interpretation and application of prior revelations. Rather, they are seeking the will of God for present circumstances.
Further, there is a difference between the purpose of a judicial opinion and a prophetic declaration. Judicial opinions are primarily intended to persuade or convince. Since higher courts or subsequent panels can overturn, there is a premium placed on cogent and logical decisions. Stare decisis or the need to align decisions with past ones always plays a powerful role. Deviations from the past must be especially persuasive.
In contrast, fidelity to divine commands rather than logic or consistency with the past is the primary goal of divine revelation. The revelatory process may result in sudden and dramatic shifts such as the priesthood ban being lifted overnight or the Church shifting from using the nickname “Mormon” to aggressively pushing the full name of the Church. There is no expectation that this reversal be accompanied by a compelling case for reversal or an apology for past policy. It is enough to a say that the Lord has spoken.
In short, the purpose of judicial decision making is fidelity to the text of the law. Originalism is a valuable and needed methodological tool. On the other hand, the purpose of divine revelation is fidelity to the will of God regardless of what may have come before. God’s will is what counts and so slavish obedience to the texts of the past is not only unnecessary but is actively contrary to the nature of the kingdom of God.
Here is a chart summarizing some of the key differences described above:
|Differences between Judges and Prophets/Apostles||Judges||Prophets and Apostles|
|Basis of Authority||Power derived from the people||Authority derived from God|
|Appointment||Through political appointments or partisan elections (in some states)||Through a divine calling from God|
|Mode of decision making||Can result in divergent opinions and disagreements||Unanimity is sought|
|Sources of Change||Lawmaking or constitutional amendments||Continuing revelation from God|
|Scope of authority||Limited||Unlimited as revealed by God.|
|Accuracy||Flawed||Perfect though mediated through imperfect individuals|
|Division of Authority||Separation of Powers limits the judicial role||Ultimate undivided authority resides in the Prophet and Apostles|