Originalism in Bible and in Law
The Senate hearings concerning the nomination of Amy Coney Barrett for the United States Supreme Court are a very big deal indeed. On social media I’ve seen lots of discussion of her philosophy of legal interpretation, known as originalism. Because I’m a biblical scholar, many of the people I follow are preachers and religion scholars. These friends tend to blur Barrett’s legal philosophy with biblical interpretation, and there are reasons for that. To be honest, I think the conversation requires some clarification.
This post will not discuss other controversies concerning Barrett’s nomination. I’m concerned that our Supreme Court has become so politicized. I’m concerned that any nominee to the Court is all but forced to lie, acting ignorant of issues which they’ve long held opinions about to show they have not pre-judged potential cases. These trends are dangerous, but that’s not what I’m writing about here. Nor am I a legal scholar. “I married a lawyer” is my strongest qualification to discuss law. But I do know some things about interpretation.
Here’s how Barrett defined originalism during her Judiciary Committee hearing:
So in English, that means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it.
Let’s start by acknowledging that originalism has its virtues. It poses the most common question we ask when looking at a document or any other artifact: How would most people have understood this when it was written? We caution students: “A text without a context is a pretext.” Originalism honors that principle.
While visiting the Louvre a year ago, I was taken by the painting of the neo-impressionist Paul Signac. I would have liked Signac’s work with no context provided: bold palettes, ordinary people doing ordinary things, work that represents its subject in a refracted way. I just liked it. I admired Signac all the more when I learned about the political culture of neo-impressionism, the radicality of creating great art that features common laborers doing hard work. Understanding just a little bit about the artists who influenced Signac and those who collaborated with him only enhanced my appreciation. That’s originalism: imagining the public impact of art in its originating context. I ask my biblical students to do the same thing with biblical texts.
Originalism shows an admirable humility. Our constitutional system was designed for courts to interpret and apply laws, not to legislate them. Originalists do not want to leave public policy to the whim of a single judge — or even to nine highly qualified justices. If we want to change the law, we can pass a new one. If we want to change the Constitution, we can amend it.
Originalism’s religious critics make the mistake of equating a legal philosophy with biblical interpretation. They correctly note a strong overlap between proponents of legal originalism and fundamentalist biblical interpretation: most religious conservatives are political conservatives. But Christian fundamentalists believe you can somehow jump straight from the words of the Bible to modern application. An originalist like Barrett understands that the questions of 1789 may not be our questions. She fully understands that a Constitution or an amendment written long ago may not have been directed to the issues we're contesting today. She knows the law requires interpretation.
I’ve seen people who should know better accuse originalists of endorsing slavery, since the Constitution explicitly accommodated slavery in 1789. But no, the Constitution has been amended. Some accuse originalists of seeking the impossible, to divine the intentions of authors long dead. Some originalists attempt that, but most do not. As her definition shows, Barrett does not.
Of course, originalism has its problems. I take it as obvious that no law means the same thing to everyone at the moment of its ratification. Barrett’s definition fails to account for that complication, though I imagine she could answer it. Things do change, often dramatically, between a law’s passing and its later application. Militias and weapons scarcely resemble the situation when the Bill of Rights was ratified. In 2013 a Supreme Court majority held that part of the Voting Rights Act had become unconstitutional not because the law had changed but because racism was less prevalent than it had been 50 years earlier. Clearly the logic of Shelby County v. Holder involves more than originalism.
Constitutional originalism has its legal critics, but I doubt many of my religious studies colleagues have read the forbidding literature on that subject. I’m not defending legal originalism: I don’t know enough about the debate. I suspect Boston College law professor Kent Greenfield is correct when he argues, “There has never been a difficult constitutional question in our history that could be decided by the text alone.” The Constitution allows for armies and a navy, but we apply it to the Air Force. But I am making a different point: it’s a mistake to confuse legal originalism for theological literalism. They’re not the same thing.
Biblical authors generally were not originalists. As Temple University professor Mark Leuchter observes, Daniel 9 transforms Jeremiah’s prophecy concerning 70 years into 70 weeks of years. “You have heard it said, but I tell you” doesn’t sound much at all like originalism. The authors of Matthew and Luke built upon Mark’s story, clarifying, correcting, and adding as they went. When Paul applies the story of Sarah and Hagar to the debate concerning whether Gentile believers should practice circumcision and keep kosher, he surely wasn’t appealing to the common understanding of Genesis held at any point in the past. Ancient Israelites, Jews, and Christians routinely found meaning in biblical texts that would have surprised their ancestors.
Almost every public interpreter of the Bible cares about the original contexts in which biblical texts were written and developed over time. But we also understand that ancient marriage held little in common with modern marriage (no biblical couple marries for love), that ancient finance could not have envisioned modern banking, and that ancient nations could not police their citizens and borders as modern ones do. Those factors don’t stop us from turning to the Bible for guidance when we discuss family, gender, sexuality, economics, or immigration. But they do inform our interpretation. We also value that diverse reading communities bring their own distinctive questions and commitments to the Bible, thereby deriving diverse understandings. No one person, community, or even rule (sorry, Augustine) will settle the Bible once and for all.
