Originalism?

Photo by Aaron Burden on Unsplash

I was minding my own business, reading Seduced by Story: The Use and Abuse of Narrative, by Peter Brooks (2022). Brooks has spent his distinguished lifetime as a literary critic who pays great attention to the cruciality of narrative as a governing literary genre. In this book he explores the way in which “story” is an open-ended process of interaction between teller and listener, with a playful capacity for the offer of new reality in the generative process between teller and listener. Then, abruptly, I am at page 137. On that page Brooks offers a telling comment on the Supreme Court and its engagement with the Constitution. He takes up the matter because the Constitution itself amounts to something of a narrative reading of reality that invites playful interaction for teller and listener. Brooks comments in particular on the statement of Justice William Brennan who dissented from the majority opinion in Michael H. v Gerald D. 

The document [the majority ruling] that the plurality construes today is unfamiliar to me. It is not the living charter that I have taken to be our Constitution; it is instead a stagnant, archaic hidebound document steeped in the prejudices and superstitions of a time long past (137).

Brennan’s assertion, albeit with a critical tilt, identified two views of the US Constitution:

• a living charter;

• a stagnant, archaic hidebound document steeped in the prejudices and superstitions of a time long past.

Brennan observes that the latter view, termed “originalism,” has won the day; Brooks writes that “originalism” has come to fully dominate the horizon of the court. “Originalism” is the tricky, doubtful claim that the Constitution must adhere to the “original intent” of its framers. But of course such a claim is largely ideology, given the recent ruling of the court on the Second Amendment that surely reached well beyond original intent; moreover, in according the election of 2000 to George W. Bush, the court violated its own presumed adherence to “states rights” and overruling the claims of the State of Florida.

In any case Brooks’s quote of Justice Brennan got me thinking about originalism. I am not a student of the Constitution, so will do no more than notice how problematic is the claim for its application to the Constitution and how ideology-laden is the practice of originalism, regardless of its theory.

My interest, as you might expect, is the matter of “originalism” in biblical interpretation. We have long been witness to two forms of biblical originalism, first that of fundamentalism that focuses on the “Red Letter” utterances of Jesus and, second, that of historical critical attempts to get back to the “original” meaning of the text. Both efforts are ideology-laden, either critical study propelled by evolutionism pursued by liberals or the Red Letter fundamentalism that most often travels with conservatism. My interest here is to consider briefly the matter of dynamism in the text and in interpretation that undermines any claim of “originalism,” as though we might recover the “original intent” of any of its authors.

We may begin with the prescient work of Gerhard von Rad, in his study, Studies in Deuteronomy (1948, and then in English in 1953). In this book von Rad saw the profound tension been the legal-theological material of the Covenant Code and that of the Deuteronomic tradition. He observed that the “laws” in the Covenant Code were given as God’s own words, thus investing them with special authority, whereas Deuteronomy is filled with the sermonic flourishes of Moses that include motivational and interpretive commentary along the way:

For actually, the most elementary difference between the Book of the Covenant and Deuteronomy—a difference that is particularly striking because the two books do contain so much common material—lies in the fact that Deuteronomy is not divine law in a codified form, but preaching about the commandments—at least, the commandments appear in a form where they are very much interspersed with parenesis (15).

Unlike the other legal collections Deuteronomy exhibits,

the perfect freedom with which it handles the old traditions and intersperses them with homiletics that is something completely new compared with the Book of the Covenant

(24).

In the Bible itself we may observe the tension between “originalism” of “God’s own words” and the freedom of interpretation and commentary that make it possible to rearticulate the text in response to the present social reality of the interpreter. It is the tradition of Deuteronomy, as von Rad has repeatedly shown, that can most self-consciously depart from any originalism, a tradition of interpretive freedom that eventuates in the prophets, the Judaism of Ezra, and the Jesus Movement. In the latter case,

you have heard it said of old… but I say unto you… (Matthew 5:27-28)

  We may usefully consider the important tension in the text itself concerning originalism and interpretive freedom, even as the same tension persists in our ongoing work in interpreting the Bible. If we were to adhere to originalism, we might especially appeal to the high theological claim made for Jesus Christ in the Epistle to the Hebrews:

Jesus Christ is the same yesterday and today and forever (Hebrews 13:8).

This verse serves to assure Christians under duress that the substance of gospel faith is constant, reliable, and not subject to whims of change. We might expect that such a claim of constancy would produce an originalist text that would stand firm with compelling and conclusive authority. It turns out, however, that exactly the opposite is the case. The case for the One “begotten not made who is of one substance with the Father” in his hiddenness has evoked and required an endless flow of texts from the earliest apostle to the gospel writers and then to centuries of pastors, teachers, poets, scholars, and songwriters, each of whom seeks to articulate the identity of the One who is “the same” in fresh perspective. The juggling act conducted among the gospel writers makes clear that there can be no single originalist text concerning Jesus, but only many alternative variations, none of which has a claim to closure or privilege.

In seeking what may be originalist about the God of Israel, we might do better to consider the way in which YHWH, as governor, differs from rivals and competitors. The clearest case may be Daniel’s confrontation with King Darius who signed an interdict against Daniel. Darius did as his advisors urged:

Now, O king, establish the interdict and sign the document, so that it cannot be changed, according to the law of the Medes and the Persians, which cannot be revoked (Daniel 6:8).

The king agrees with his advisors in the narrative and signed the interdict:

The thing stands fast, according to the law of the Medes and Persians, which cannot be revoked (Daniel 6:12).

This is grim originalism! The matter is made public and cannot be altered. The gods of the Medes and Persians assured an unchanging, unchangeable decree that will determine human outcomes.

Except that YHWH, the God of Israel, wills and acts otherwise:

My God sent his angel and shut the lions’ mouths so that they would not hurt me, because I was found blameless before him; and also before you, O king, I have done no wrong (Daniel 6:22).

The God of Israel changes what cannot be changed! Unlike the gods of the Medes and the Persians, the God of Israel is master of every originalism, and can act in freedom. It is no wonder that King Darius breaks out in doxology to the God of Israel who breaks open what the other gods had patently tried to close off. Darius seems relieved to have an alternative to his own gods of changelessness:

For he is the living God, enduring forever.

His kingdom shall never be destroyed,

and his dominion has no end.

He delivers and rescues,

he works signs and wonders in heaven and on earth;

for he has saved Daniel from the power of the lions (Daniel 6:26-27).

Thus we might expect, in biblical testimony, that the emergence (or eruption) of new possibility could be the order of the day. In that case no text can remain unchallenged in its claim, because this God works newness beyond old formulation. Consider these cases in point:

-  In the flood narrative of Genesis 6-9, nothing is changed about the human condition by the flood.  The “imagination of the human heart” is as evil after the flood (Genesis 8:21) as it was before (Genesis 6:5). What has changed is the resolve of God to destroy or in turn to rehabilitate. God, in response to circumstance, will not stay locked in to old textual formulations.

-  In Hosea 11:5-7, the God of Israel in anger prepared to have Israel devoured by the sword. But then, in verses 8-9, God abruptly changes direction as though the God of Israel had a moment of fresh self-reflection:

How can I give you up, Ephraim?

How can I hand you over, O Israel?
How can I make you like Admah?

How can I treat you like Zeboiim?

My heart recoils within me;

my compassion grows warm and tender.

I will not execute my fierce anger;

I will not again destroy Ephraim;

for I am God and no mortal,

the Holy One in your midst,

and I will not come in wrath (Hosea 11:8-9).

This God is not and will not be trapped in old formulation, even if formulations are of God’s own making.

-   In Jeremiah 18:7, God may decree against a nation that it will be plucked up and broken down. Such a decree, however, is not like that of the Medes and the Persians—fixed, permanent, and beyond recall. Rather, the future of the formula is governed by an “if” of conditionality: 

If that nation, concerning which I have spoken, turns from its evil, I will change my mind about the disaster that I intend to bring on it (Jeremiah 18:8).

God is free to change God’s mind, to redirect attention, and to issue a fresh decree of planting and building. The world is not fated, because the creator God remains free in the exercise of governance. Conversely, a positive decree can and will be revoked if circumstance requires cancellation of the good God had intended to do (Jeremiah 18:10).

-  Most familiarly, the poet in the exile can have God move past “old things” for the newness of rescue and homecoming:

Do not remember the former things,

or consider the things of old.

I am about to do a new thing;

now it springs forth,

do you not perceive it? (Isaiah 43:18-19)

This God is no prisoner of past utterance. This God will not be held in hock to previous utterance or to ancient text. There can be no “originalism” wherein an old text can claim continuing unfettered authority.

Robert Alter has nicely written that Judaism is a “culture of interpretation,” so that a primary, defining enterprise of Judaism is the continual, open-ended offer of interpretation by many voices from many perspectives, each of which claims attention and consideration. The same culture of interpretation persists in the Christian tradition, though certainly with less freedom and imagination.  It remains for Christian practice to learn more fully from Judaism the capacity for such bold, endless interpretation.

When we recognize that such multi-voiced interpretation is beyond doubt in the Bible, such a realization may indeed help us to consider the character and quality of the US Constitution as well, as a “living charter” that aims to protect human rights and human wellbeing with an ever expansive scope. After all, we may well recognize that almost all of our various “stopping places” of drawing a line against new interpretation is most often an act of vested interest. Justice Thomas, an eager advocate for “originalism,” is willing to roll back constitutional rights for gays and, eventually, for woman as well. But he will stop short concerning rights for non-whites. If there were no such “stopping places” in the enterprise of interpretation, we would finally arrive back at the claim that only white male plantation owners really have any rights. I do not know anyone willing (yet!) to go back that far!

I hope it is clear that women and men of faith have a deep reason to resist “originalism,” that wants to halt the ongoing vitality of the Constitution or the Bible. We would do well to recognize that the God of the Bible—and so also the vision of the Constitution—are open-ended to the truth of emancipation and wellbeing made possible in and through a community of faithfulness that is not governed by fear. The Puritan pastor, John Robinson, could declare,

There is more truth and light to break forth from God’s Holy Word.

It is for that reason that our interpretive work must continue. The God of the Bible does not intend “closure” around any of our favorite interpretations!

Peter Brooks well understands that there is more than one way to tell a story. There are, to be sure, the “normative storytellers” to whom heed must be paid. But new versions keep arising. In the Old Testament, the identifiable moments for the emergence of new tellings have long been designated JEDP, variant ways of telling the story of ancient Israel. The gospel writers whom we designate as Matthew, Mark, Luke, and John are communities that told the story of Jesus in very different ways. There are many ways to tell the story of God’s life in the world; every one of them wants to be heard, but no one gets it fully right. There are many ways to tell the story of human rights in the United States, and no one finally gets to tell that story in a way that denies rights to others that belong to us all. The attempt to freeze a certain telling as normative is most often an act of fear or vested interest. But the force of the plot of the story itself will always insist on its retelling. We can either be agents for such ongoing telling, or among those who seek to repress such retellings.  Insofar as the story is true, it will insist upon and receive fresh retellings. Neither our fear nor our vested interest will preclude such retellings!

Walter Brueggemann

June 27, 2023