Base Constitutional Communities: Lessons from Liberation Theology for Democratic Constitutionalism

abstract. While legal scholars have written extensively about the methods and values of scriptural and constitutional interpretation, they have written relatively little comparing liberation theology with progressive modes of interpreting the Constitution. Existing legal scholarship that does examine liberation theology focuses on itssubstance, not the processes for interpreting the Bible championed by liberation theologians.

This Note argues that liberation theology offers a process-based mechanism for making a more democratically responsive constitutional interpretation. Though the moral and interpretive commitments of liberation theology and progressive constitutional scholarship rhyme, it is premature to expound a substantively liberationist constitutionalism. Instead, this Note draws on scholarship about popular constitutionalism to explain how and why progressives should adapt the model of interpreting the Bible in base ecclesial communities to the constitutional context. By participating in base constitutional communities, Americans can play a direct role in constitutional interpretation, thereby improving the democratic legitimacy of constitutional law.

author. J.D. 2023, Yale Law School; M.T.S. 2015, Harvard Divinity School; A.B. 2013, Brown University. Special thanks to Robert Post for supervising this project, to Thomas A. Lewis and Susan Ashbrook Harvey for introducing me to liberation theology, and to Bruce H. Mann for allowing me to write about theology and law many years ago. I am also grateful to Judith Resnik, Douglas NeJaime, Jack M. Balkin, and Bo Malin-Mayor for their insightful comments, to Julie Krishnaswami and Carla Baricz for their research guidance, and to the amazing editors at the Yale Law Journal, especially Marcella Michalek. And of course, thank you to my parents and my partner for their ongoing support. All errors are my own. Dedicated to my cousin, Peter Salvino.

“Lawyers are . . . the High Priests of America. We alone know the words that made America. Out of thin air. We alone know how to use The Words. The Law . . . .”

—Roy Cohn in Tony Kushner’s Angels in America1

Introduction

The United States Supreme Court is facing a crisis of legitimacy.2 A majority of Americans disapprove of the Court,3 and less than a third of registered voters view the Court positively.4 The President,5 members of Congress,6 and leading constitutional experts7 openly and urgently debate the merits of Court reform. Many commentators who favor reform blame the Court itself for the public’s crisis of faith by pointing out that the Court has begun to ignore the will of the people.8 Substantively, the Court’s most high-profile opinions do not align with the views of the public. While the opinions of the Court tracked the views of the public on major issues until recently,9 a major longitudinal study published in 2022 offers evidence that the Court’s opinions are now “much more conservative” than the views of most Americans.10 The Court’s recent constitutional opinions related to abortion and the Second Amendment—which strayed particularly far from the views of the public—have provoked especially strong backlash.11 Methodologically, the mode of constitutional interpretation deployed by the Court deviates from the mode favored by a majority of Americans. Perhaps unsurprisingly, a Court captured by originalism12 grounded its constitutional reasoning in Dobbs and Bruen in appeals to history and tradition;13 a majority of Americans, on the other hand, believe that the Supreme Court should “base its rulings on its understanding of what the Constitution ‘means in current times’”—as opposed to “what it meant when originally written.”14

It should come as no surprise, then, that progressives have lambasted the Court on substantive and methodological grounds. Substantively, of course, Americans on the political left criticize Court opinions that increasingly seem to favor right-leaning policy priorities.15 For example, Democrats favor reproductive rights and gun control,16 and progressive critics predictably denounce the holdings of Dobbs and Bruen for limiting reproductive rights17 and striking down gun-control measures.18 Methodologically, progressives have argued that the Constitution is a “living charter”19 that must be conceptualized and interpreted as “responsive to evolving social needs and to ideals of fundamental justice.”20

In this Note, I build on progressives’ methodological critique in the interest of identifying and implementing a more democratically responsive—and thus more democratically legitimate—procedure for interpreting the Constitution. For inspiration, I turn to a potentially unexpected source: Roman Catholic, Latin American liberation theology.

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Some progressive legal scholars have made admirable efforts to offer a vision of a progressive, principled method of constitutional interpretation that rivals conservative interpretive methods like originalism and strict constructionism.21 Though progressive scholars acknowledge that any such moral constitutional vision must be democratically responsive,22 their proposals lack a robust assessment of the concrete, direct mechanisms by which to make constitutional interpretation rooted in the moral vision of the people. In response, I explore the extent to which liberation theology—a theological tradition animated by and responding to the social, political, and economic concerns of the marginalized23—offers a model for constitutional advocates dedicated to a democratic method of constitutional interpretation. I am especially inspired by the base ecclesial communities of Latin America: small groups of Catholics, led by laypeople, who gather to read and interpret the Bible, raise consciousness about their social conditions, practice leadership, and engage in activism.24 I describe how the biblical interpretation taking place in base ecclesial communities feeds into the professional theology of the institutional Church,25 and I suggest that advocates of democratic constitutionalism should adapt the base-community model to the constitutional context.26

While I point out parallels between the substantive commitments of liberation theology and progressive legal scholarship—including, for example, a common commitment between liberation theologians and progressives within critical legal studies, poverty law, and family law to privileging the perspectives of those on the bottom of the social, political, and economic hierarchy27—I contend that it is too early to adopt substantive, liberationist interpretive commitments. Instead, I explain why legal scholars should find inspiration in the procedural interpretive commitments of liberation theology in order to make constitutional jurisprudence more democratically responsive. In short, I argue that base communities can serve as a concrete mechanism through which constitutional interpretation by the people could shape constitutional interpretation by the judiciary.

In Part I, I will review existing literature to show that legal scholars have previously generated insights by comparing the methods and values of constitutional and scriptural interpretation.28 However, little has been written comparing progressive forms of constitutional interpretation with liberation theology.29 Less still has been written comparing constitutional and scriptural processes and procedures of interpretation that attempt to make interpretation more inclusive. My work seeks to revive the most important insights of the relatively scant scholarship tracing a relationship between liberation theology and law, and based on recent progressive legal scholarship, I will contribute new insights about the ways liberation theology might help jurisprudence become more democratically responsive.

In Part II, I will describe and define liberation theology, focusing especially on key aspects of its substance and process. This Part will explain what liberation theologians mean by liberation (and, conversely, oppression) and how they conceive of human flourishing. I will describe how these theologians’ conception of liberation commits them to specific substantive and procedural interpretive orientations. In particular, I will describe how liberation theologians approach interpretation “from the underside of history”30 (starting with a “preferential option for the poor”31) and read the Bible within base ecclesial communities.32

Part III explores whether liberation theology offers a useful tool for progressive constitutional scholars seeking to identify and describe a method of constitutional interpretation that democratically gives expression to progressive principles and values. On the one hand, liberation theology provides a vocabulary and substantive assessment of human flourishing that resonates with some progressive legal scholarship, including in the fields of poverty law33 and family law.34 Some progressive legal scholars committed to such constitutional visions might find it useful to borrow from liberation theology to flesh out legal notions of liberation.

However, progressive legal scholars should first ask whether a method of constitutional interpretation that gives expression to a specifically liberationist conception of human flourishing is democratically legitimate or desirable. To answer this question, it is necessary to proceed in steps. First, I acknowledge that constitutional interpretation by necessity gives expression to a moral vision. Next, I build on scholarship in popular constitutionalism and democratic constitutionalism to suggest that the moral vision applied by interpreters should be democratically responsive. Consequently, I contend that it is premature to settle on a liberationist constitutional interpretation without first excavating the moral vision that animates popular constitutional movements.

As such, while other progressive scholars might mine liberation theology for its substantive moral vision, I choose to set aside the substantive insights of liberation theologians. Instead, I argue that liberation theology is useful because of its insights about the interpretive process. Liberation theologians explore the imperative and limit of responsive interpretation—navigating between a commitment to an “elite” class (i.e., clergy) and the benefits of opening the interpretive process to base communities (i.e., the laity). I argue that the practice of interpreting the Bible within base communities can serve as a model for new, more democratically responsive processes for interpreting the Constitution.