“Should Federal Judges Cite the Bible as Authority for Constitutional Decisions?” That is the question Professor Richard Pildes asks over at Balkinization. The occasion for asking it is a concurrence by Judge Calabresi in Ognibene v. Parkes, decided by the Second Circuit earlier this year — a case about campaign finance and the First Amendment, in which Judge Calabresi criticizes the Citizens United decision. In that concurrence, Judge Calabresi uses Luke 21:1-4 as an epigraph for his opinion.
I am not certain that I agree with Professor Pildes that this qualifies as reliance on the Bible as “authority” for a constitutional decision, at least unless the modifier “persuasive” is added. But even “persuasive authority” is not quite right. The body of Judge Calabresi’s concurrence discusses American constitutional caselaw alone, and it seems to me that this provides the “authority” for his opinion. In his post, Prof. Pildes describes the use of the epigraph as providing “normative support” for Judge Calabresi’s views, and this seems closer, though also not exactly right.
I have always thought that epigraphs are not argument. They are not even suggestions of argument. Their function is to orient the reader obliquely toward a certain mood or manner of thinking. In fact, the elegance of the epigraph consists exactly in refraining from doggedly hitting the reader over the head with argumentative authority. “Authority” is hardly the point.
All the same, I found some of the thoughtful questions that Professor Pildes asks about the uses to which epigraphs with religious origins may be put, and by whom, and in what circumstances, and with what political valences, extremely interesting.