Expressing the Inexpressible: Theological Limit Language in Constitutional Interpretation

Theologian David Tracy advances many compelling and fascinating ideas in his work. Those ideas include his theory of “limit language,” which Tracy argues plays an important role in biblical texts. According to Tracy, understanding the nature and function of limit language provides critical insights into what those texts mean, what they seek to accomplish, and what they contribute to the experience of faith. In my view, the concept of limit language also sheds considerable light on constitutional interpretation.

Two preliminary disclaimers are in order. First, like many of Tracy’s ideas, his theory of limit language resists a quick and easy summary, and any effort to provide one necessarily fails to do justice to the complexity of his thinking. Second, it’s not possible to discuss in so short a space every implication of limit language for constitutional interpretation, to anticipate and answer all objections, or to set out a comprehensive theoretical framework. So, my modest goal here is to flag what seems to me an intriguing connection between the projects of biblical and constitutional interpretation, in the hope of fostering more expansive consideration and dialogue.     

 Tracy offers the fullest expression of his theory of limit language in his book Blessed Rage for Order: The New Pluralism in Theology (1975). In essence, Tracy maintains that our lives include certain experiences, which he calls “limit experiences,” that differ from the other dimensions of existence. Limit experiences are deeply important to us, but they usually lie beyond our control and test the boundaries of human comprehension. An example might be those experiences that remind us of our own mortality and that lead us to wonder whether anything waits on the other side of this life.

To borrow Paul’s phrase from his first letter to the Corinthians, with respect to such matters we see only “through a glass, darkly.” As a result, we struggle to find words sufficient to describe and explore our limit experiences. The direct expression we use on a daily basis to communicate about most things proves inadequate to this task. Limit experiences demand a different kind of language.

Tracy argues that biblical texts turn to limit language in order to illuminate these limit experiences. That language includes a wide array of rhetorical devices, such as songs, proverbs, poems, parables, metaphors, and symbols. These rich and figurative forms of expression allow the texts to gesture toward ideas that are difficult or impossible to convey in straightforward declarative terms. In short, limit language seeks to express the inexpressible. 

Limit language has the potential to prove transformative. It can reveal new possibilities, subvert assumptions, and reorient our way of being in the world. Augustine famously declared: “si comprehendis non est Deus”—if we can understand it, then it is not God.  In the same sense, the theory of limit language recognizes that if we can say it directly, then we aren’t saying anything about the most profound and mysterious aspects of human existence. 

Consider Jesus’s use of parables. We can’t describe in simple declarative terms what it means to experience the love of an infinitely compassionate God. But Jesus can tell a story about a father who runs to greet his returning prodigal son, embraces him, and throws him a giant party. Similarly, we can’t explain precisely what it means to model God’s love in our relations with others. But Jesus can tell a story about a really good Samaritan who stops in dangerous territory to help a stranger, takes him to safety, and pays his bills.

Numerous biblical texts make use of limit language. The creation stories of Genesis. The poetry of Psalms, Ecclesiastes, and the Song of Songs. That mystical invocation of the gospel of John: “In the beginning was the word, and the word was with God, and the word was God.”

Paul’s letters sometimes overwhelm us with this sort of language. In just one passage in his letter to the Ephesians, echoing similar phrases from Isaiah 59, Paul refers to the armor of God, the belt of truth, the breastplate of righteousness, the shield of faith, and the sword of the spirit. Keenly attuned to non-literal forms of speech, in the fourth chapter of his letter to the Galatians he recounts the stories of Sarah and Hagar and then adds, perhaps condescendingly, “Now, this is an allegory.” When Paul uses the metaphor “through a glass, darkly,” he suggests that we cannot even directly express the limitations of our capacity to express things directly.

Acknowledging the presence of limit language, and recognizing the imaginative enterprise into which it invites us, helps inform and direct our interpretive choices. For example, we could take literally the creation stories that we find in the book of Genesis, and some people do. But reading them that way underscores their antique sensibility and leaves us with serious questions of scientific plausibility. In contrast, if we see those stories as creative uses of limit language, as efforts to express the inexpressible, then they become symbolically complex, conceptually rich, and perpetually relevant.

We don’t find much in the text of the United States Constitution that presents like limit language, which is unsurprising given that it’s a fundamentally different kind of document than the Bible. Indeed, it would strike us as very odd to find its articles and sections filled with poetry, metaphors, similes, and parables. It might therefore seem fair to assume that the idea of limit language would have little or no utility in constitutional hermeneutics. But that assumption overlooks a key characteristic of the text of the Constitution. 

Although the Constitution may not include limit language, it certainly includes limit concepts—that is, ideas that exist on the borderlines of our capacities of comprehension and expression. To explain those concepts, Supreme Court opinions interpreting constitutional texts often turn to limit language and draw on its explanatory power. In other words, although we may not find poetry, metaphors, similes, or symbolic forms of expression in the Constitution, we find them with considerable frequency in the judicial opinions that seek to make sense of that document. As with limit experiences, saying meaningful things about limit concepts requires the use of limit language.

The Supreme Court has a long history of relying on limit language to elucidate concepts that defy straightforward explication. An early example comes in Abrams v. United States, 250 U.S. 616 (1919), a foundational decision in First Amendment jurisprudence. In that case, five activists circulated pamphlets that were critical of capitalism and that urged workers to join in a general strike. The activists were criminally charged under the federal Espionage Act, convicted, and sentenced to twenty years in prison. The Supreme Court of the United States affirmed.

Justice Oliver Wendell Holmes, Jr., wrote a dissent that, ultimately, won the judgment of history and gave us one of our most persistent and powerful rationales for providing broad protection to freedom of speech. The key passage of the dissent begins, somewhat curiously, with an observation about the attractions of censorship. Holmes wrote: “Persecution for the expression of opinions seems to me perfectly logical.” Holmes acknowledged that it is only natural for people who hold strong and sincere viewpoints to want to “sweep away all opposition.”

Nevertheless, Holmes continued, this understandable impulse fails to account adequately for the fact that we may be wrong. Additional information, further experience, and deeper reflection may cause us to change our minds. “Time has upset many fighting faiths,” he noted. Our free speech doctrine must therefore leave room for the expression of differing ideas and opinions, even those we think meritless or pernicious.

To get at what he meant, Holmes invoked a metaphor that courts and scholars commonly refer to as “the marketplace of ideas.” “The ultimate good desired,” he wrote, “is better reached by free trade in ideas [and] the best test of truth is the power of the thought to get itself accepted in the power of the market.” Under this theory, we allow as many differing ideas as possible to compete for our allegiance. We analyze, debate, and deliberate over them. Through this process, we come to reject falsehood, embrace truth, and discard inferior opinions in favor of better ones.

In his book The Great Dissent, Thomas Healy observes that Holmes’s opinion in Abrams“continues to influence our thinking about free speech more than any other document.” Indeed, the marketplace of ideas model has taken on canonical stature in First Amendment doctrine. Courts routinely invoke it, and in everyday conversations about free speech we commonly incorporate the model and its assumptions, even if unconsciously.

It’s important to note how this interpretive process unfolds. Holmes begins with a limit concept: “speech,” the word that appears in the text of the First Amendment. Far from being self-definitional, that word spawns a host of interpretive puzzles: What qualifies as speech? Do we protect all speech or just some? Why do we protect it? These questions don’t lend themselves to straightforward answers; to the contrary, they lie at the borderlines of our capacity for comprehension and expression.

In my Law & Theology seminar, I invite my students to think carefully about what’s going on here. We might see this as a straightforward interpretive project, figuring out what “speech” means in the context of the First Amendment, just as we might figure out what “timely” means in the context of a contract. But it’s not that simple.

I encourage my students to see the challenge Holmes faces. He views the speech clause of the First Amendment as serving a critical value: It helps us discover the truth and arrive at better informed and better reasoned opinions. Explaining how this works requires him to do nothing less than describe the process by which we separate right from wrong and wise from foolish. That’s a heavy lift on his part. No wonder he needed limit language—the marketplace of ideas metaphor—to get it done.

As noted before, constitutional and biblical texts differ substantially in content and purpose, and it is important not to overstate the parallels in hermeneutic methodology. But I think there are striking similarities between the processes at issue. In biblical interpretation, the process moves from a limit experience to limit language. For example, we feel haunted by our mortality and desperately alone in the universe, and Psalm 23 tells us that the Lord is a shepherd who will walk us through the Valley of the Shadow of Death. In constitutional interpretation, the process moves from a limit concept in the primary text to limit language in the secondary text. For example, we want to understand what freedom of speech means under the First Amendment, and a judicial opinion invites us to think about it like an open marketplace.

Of course, not all biblical texts address limit experiences and draw on limit language to help make sense of them. Many passages in Paul’s letters read more like the words of a frustrated administrator than they do like those of an inspired apostle. Similarly, not all constitutional texts incorporate limit concepts or benefit from the power of limit language. The constitutional requirement that the President be 35 years old does not draw us into the murkier regions of human existence.

But numerous constitutional texts do include such concepts and the Supreme Court has repeatedly, and appropriately, used limit language to try to illuminate them. In addition, justices at all points along the liberal-conservative spectrum have done it. So, when liberal Justice William O. Douglas tried to explain in Griswold v. Connecticut what the right to “privacy” means and where it comes from, he turned to talk of “emanations” and “penumbras.” And, when conservative Justice Antonin Scalia tried to explain in Morrison v. Olson how the existence of an independent counsel threatened the separation and balance of powers, he turned to talk of “a wolf” that comes not “clad in sheep’s clothing” but “as a wolf.”

This is not to say that the use of limit language in interpreting the Constitution always gets things right or comes without difficulties. For instance, numerous scholars—including me—have written about the conceptual shortcomings of the marketplace of ideas metaphor. But it seems unlikely that these objections would have alarmed Holmes, who knew that our efforts to understand and express limit concepts will never go perfectly. Indeed, toward the end of his dissent, he acknowledged that the theory of free expression he described was “an experiment, as all life is an experiment.”

This is one of the great virtues of recognizing that the Constitution contains limit concepts: It demands humility in the interpretive and epistemological enterprise. It requires an acknowledgment of the depth of our struggle to understand and express certain ideas of vast complexity and mystery. As with spiritual matters, when it comes to certain constitutional texts we see only “through a glass, darkly,” and pretending to have greater clarity that we do is an act of grotesque hubris that can get us into serious trouble.

In my view, this insight helps explain why the current conservative majority of the Supreme Court has recently gotten so many things wrong. These justices have persuaded themselves that interpreting the Constitution is essentially an archeological enterprise. If they dig deeply enough into the history of the time at which the text was written, then the meaning of its words will emerge. And this holds true even when the Court is trying to figure out something as unspeakably complex as whether and when a pregnancy represents one human life or two.

Such an approach loses sight of the fact that, as Justice Marshall wrote more than two centuries ago in McCulloch v. Maryland “it is a Constitution [the Court is] expounding.” History certainly has a place in the hermeneutic toolbox. But it cannot yield a full and deep understanding of the limit concepts embedded in this country’s founding document. A historical analysis of sheep herding techniques in ancient Israel might shed some light on Psalm 23, but it would be a grievous error to think that this is what the text is about.

The refusal to recognize the existence and nature of limit concepts in the Constitution similarly misunderstands what the text is about. And the error doesn’t just drain the document of its richness, nuance, flexibility, and continuing relevance. It is an act of interpretive arrogance, of hermeneutic imperiousness, unilaterally imposing boundaries where the text calls for none beyond those afforded by reason, imagination, and experience.

It ensures that the inexpressible will remain so.