Originalism’s Original Sin

Originalism’s Original Sin

 

The legal philosophy cloaks its theocratic impulses in secular garb.

 

By Adam Shapiro

The Chronicle of Higher Education

March 1, 2021

 

 

Even though the Biden administration is unlikely to nominate a staunch originalist to the Supreme Court, the legal philosophy prominently associated with the late Antonin Scalia isn’t going anywhere. The court is already packed with jurists who have expressed support for this doctrine. Opinions from Trump appointees in particular will be combed for consistency — hypothetical hypocrisies hyped and anachronisms analyzed — by critics who will dwell on any deviation from what they see as originalist orthodoxy.

 

If the buffet of historicist hot takes that emerged during the hasty pre-election confirmation of Amy Coney Barrett is any indication, many of these commentaries will do worse than merely miss the point.

 

Their caricatures of originalism reinforce the perception that liberal critics of the courts are not just opposed to a theory of judicial interpretation but act in (literal) bad faith. Despite the secular language that its advocates sometimes use, originalism is a religious theory — its origins are not just political but also theological. As such, to understand American jurisprudence, we must expand teaching and research in religious studies and integrate that work across other fields of academic inquiry. This would be especially salutary now, as departments of religious studies find themselves on the chopping block in the post-Covid-19 university.

 

While there was some interest in the influence of Barrett’s religious views on specific issues like capital punishment and abortion, it largely passed unremarked that the originalism she defends only makes sense in light of a particular American religious history. Originalism combines a Christian nationalist view of the United States’ founding as a prophetic and holy act with notions of the inerrant truth of divinely inspired texts that have evolved over the past century. To its practitioners and supporters, it encodes a religious vision of America that has come to the fore in other areas of politics and law. In short, originalism isn’t “dumb”; it’s theocratic.

 

 

Put another way, originalism is a kind of textual literalism, analogous to, and influenced by, biblical literalism. Its reading practices looks remarkably similar to the ways that biblical inerrantists discuss Scripture in light of moral objections or new scientific discoveries. The question for courts and legislators has always been whether there are extrinsic truths that can be used to judge the Constitution — a higher moral law or newly understood facts about social or natural science that can justify corrections or reinterpretations. The originalist position is unique in how it considers these questions, how it resolves apparent conflicts or contradictions within the text, and how it extends the text to circumstances not explicitly anticipated.

 

Is the Constitution more like Leviticus, or is it instead like Euclid’s Elements — a canonical but not infallible text that can be checked against other kinds of authority? When we look at the Constitution as a human production — written and ratified, no less, by people who enslaved others — we should have no difficulty imagining that the country’s founding documents might be morally imperfect.

 

But in recent years, we have witnessed the popularization of a theological movement that envisions the founders as preternaturally wise — as, in effect, receiving a prophetic text from an inspired source. This view, that the Constitution is a God-given document, is a central tenet of an American vision of Christian Reconstructionism. It extends an idea expressed by one of its founders, Rousas John Rushdoony, that “in any culture the source of law is the god of that society.” In the United States’ political context, this viewpoint reads not just the religious motivations of people, but divine forces at work in the creation of the American Republic. (It also suggests a divinely ordained role for the United States in world affairs.)

 

 

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This theological interpretation of the world has gained traction among growing constituencies of the Republican Party. Sen. Ted Cruz of Texas is a primary example. During the 2016 presidential primaries, the senator’s religious views revealed themselves as deeply enmeshed with Christian Reconstructionism. Mike Pompeo, the former secretary of state, has also expressed views that entangle Christianity and American nationalism with the Reconstructionist belief that all fundamental laws derive from God. And this Reconstructionist vision of America as a Christian nation fulfilling a prophetic destiny has been a mainstay in fights over history education for decades, from the efforts of the ersatz historian David Barton to shape elementary- and secondary-school curricula in Texas since the late 20th century, to the language of martyrdom and sacrifice that goes into defending Confederate monuments, to former President Donald J. Trump’s executive order¨ to promote “patriotic” education, signed the day before the 2020 election.

 

Originalism takes this religious vision of the Constitution and combines it with a specific reading practice that emerged in the early 20th century: fundamentalism as a commitment to biblical inerrancy. Although its origins reach deep into the history of Protestantism, its 20th-century version transcended denominational differences.

 

Fundamentalism derives its name from a series of journals issued in the 1910s, The Fundamentals: A Testimony to the Truth. (It would not be for another generation that “fundamentalism” became a catch-all term for extremism or dogmatism that applied to religions in general.) The Fundamentals included articles from Protestant theologians and other scholars from several denominations in the United States and Britain, generally decrying the errors of modernity. On theological grounds this was framed as a concern that modernists (both religious and secular) were undermining traditional authority by treating religion as an object of anthropological or literary study.

 

The rhetoric of a purportedly traditional Christianity that rejected socially progressive interpretations of religion found an audience among those who felt left out by rapid economic, geographic, and demographic changes as the United States became more urban and less agrarian — and, due to immigration, more Catholic. Fundamentalism, in other words, was not just a theology, but an identity politics.

 

The Fundamentals were also famously anti-Darwinian. But one thing that The Fundamentals did not do was insist upon a literal interpretation of the Bible. In fact, some essays explicitly rejected “crass literalism,” even acknowledging that the earth may be many times older than the 6,000 or so years suggested by biblical chronology. At the same time, several essays did suggest that the Bible was “literally” true in the sense that every word and letter was divinely intended. The Bible was not, as liberal theologians sometimes suggested, merely the product of divinely inspired prophets putting their impressions of God’s will into their own language. Scripture was not an act of human will at all, but of human beings opening themselves to God’s will — its every jot and tittle pregnant with revealed truth.

Implicit in this vision of inerrancy was that readers of the Bible might not get an accurate sense of God’s meaning through the strength of their own will and study. A good-faith reading of the texts is a passive one, an open one, that doesn’t seek to impose meaning on the text but to obtain a meaning revealed through the text.

 

Consider, in this light, the definition of originalism given by Barrett during her confirmation hearing: “I interpret [the Constitution’s] 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.” “Not up to me” implies a moral mandate toward a passive reading that strongly parallels what biblical literalists a century ago described.

 

 

The idea that an inerrant text could be misread due to human error was a key point in the most visible defense of biblical literalism from the era of early fundamentalism. In the 1920s, different versions of “literalism” began to come into conflict with one another. In 1925, the Democratic politician and antievolutionist crusader William Jennings Bryan took the witness stand in the Scopes evolution trial, in Dayton, Tenn. Bryan hoped to defend the Bible against those who sought to overturn Tennessee’s law against teaching evolution. Bryan responded to the defense attorney Clarence Darrow’s questions about whether he believed that everything in the Bible should be literally interpreted by rejoining that everything should be “accepted as it is given” in the text. Bryan drew distinctions between asserting that everything in the Bible was “true” and refusing to agree to specific literal interpretations of creation suggested by Darrow (that the six days of creation were 24 hours long, or that the earth was just thousands of years old).

 

In other words, Bryan made room for the possibility that as a fallible human reader of the Bible, he may not know God’s intended meaning of a particular passage, and that he may at times impose his own will on the text, though he endeavors not to do so. Bryan’s concern about imposing his will on the Bible lines up almost exactly with Neil Gorsuch’s statement that “a judge who likes every outcome he reaches is probably a pretty bad judge, stretching for the policy results he prefers rather than those the law compels.”

 

Two weeks after the Scopes trial, Darrow wrote to the Baltimore Sun journalist H.L. Mencken, who had left Dayton the weekend before Bryan took the stand: “Am sorry you missed my examination of Bryan. I made up my mind to show the country what an ignoramus he was and I succeeded, but I only had two hours of him and wanted another day.” Darrow’s strategy had been to ridicule literalism and anyone who defended it, unconcerned for theological distinctions.

 

Unfortunately, much of the criticism of constitutional originalism, both in confirmation hearings and in the press, relies on a kind of mocking, gotcha-style caricature quite similar to Darrow’s approach to Bryan. In an essay with the unpromising title “Originalism Is Dumb,” the historian Andrew Hartman described the originalism of Gorsuch, then a nominee, as “the Ouija board of legal doctrines — which would have us pretend to decipher the intent of those who wrote the Constitution 230 years ago, almost a century before slavery was abolished.” An essay by the historian Heather Cox Richardson and Sen. Angus King Jr. of Maine (who, unlike most pundits, could actually vote on the Barrett nomination) presented alleged inconsistencies, noting for instance that, while the pre-Wright-brothers-era Constitution mentioned an army and navy, “what about the Air Force?” Other critics claimed that, since women would have been excluded from serving on the court in the founders’ day, she must be a hypocrite or an ignoramus.

 

Constitutional originalism is an extension of biblical literalism, updated for a new divine revelation.

 

Whether they raise serious concerns about justice and human rights or seek to score sarcasm points for clever caricatures of Continental Congress cosplay, most of these objections to originalism fail because they’re not responding to a version of literalism that “originalists” themselves recognize. It doesn’t matter to these “originalists” that House trial managers can prove that the founders intended impeachment to apply to officials already out of office. When Rep. Joe Neguse, of Colorado, argued that “President Trump’s interpretation doesn’t square with history, originalism, textualism,” he appealed to an interpretation grounded in historical facts that has little similarity to the originalism Trump’s Senate allies sought in judicial confirmations. The religious movements that have entrenched Reconstructionist theology within the Republican mainstream have found a recipe that aligns evangelical faith with a legal framework that largely supports their cultural and political agenda.

 

The meaning of literalism has changed over time from a statement of the literal accuracy of divine authorship to a kind of commonsense interpretive process. The meaning of originalism has changed likewise — it has shifted from being concerned primarily with the intention of the founders to a concern with the “original public meaning” of the text at the time it was written. This “Originalism 2.0” also borrows a move from literalist theologians. Some of the authors printed in The Fundamentals reasoned that even though one might not be able to tell whether an individual’s reading of the Bible was divinely inspired or a result of willful interpretation, where there was consensus among a community’s people of good faith, that consensus likely reflected divine intention. Public meaning was a way of discovering God’s will in the aggregate. Because of the shift to public meaning, originalists no longer feel beholden by the work of academic historians whose research recovers the intentions of specific individuals who actually existed, thought, spoke, and wrote in documentable ways.

 

As the Christian Reconstructionist notion of the Constitution’s divine authorization gains more traction, interpretive rules taken from biblical literalism provide a coherent, if nonsecular, process for originalist interpretation. The suggestion that the “public meaning” version of originalism means “how the words of the document would have been understood by a competent and reasonable speaker of the language at the time of the document’s enactment” (as John McGinnis and Michael Rappaport put it) echoes William Jennings Bryan’s view that the Bible “was inspired by the Almighty, and He may have used language that could be understood at the time.” In short, constitutional originalism is an extension of biblical literalism, updated for a new divine revelation.

 

 

A generation after the Scopes trial, so-called creation scientists made explicit efforts to present their objections as scientific, reaching conclusions compatible with religion by secular means. This wasn’t fully successful in court, but it helped to pave the way for future efforts to distance antievolutionism from its explicitly religious origins and to represent itself as a legitimate scientific controversy. In a similar vein, originalists have constructed a history and scholarly community that allows them to claim increasing legitimacy as a school of secular law. Reframing originalism as a secular form of textual analysis allows it to maintain alliances with those who appreciate the outcomes it provides in court, while balking at its theology.

 

Recently, in The Chronicle Review, Oliver Traldi pointed out that critics of originalism in rhetoric, philosophy, history, and other fields often fail to understand the proprietary and nonintuitive uses of legal terminology — and as a result, end up arguing with straw men. But the idea that only legal schools can competently critique originalism is also misguided. The study of religion, which is sometimes marginalized even by other humanities fields, has much to contribute in making sense of the judicial and political cultures that will define the next era of American law. It is all the more unfortunate, then, that religious studies are seen as expendable in this time of crisis and uncertainty.

We welcome your thoughts and questions about this article. Please email the editors or submit a letter for publication.

 

Adam Shapiro

Adam Shapiro earned his Ph.D. in the history of science from the University of Chicago. He’s the author of Trying Biology: The Scopes Trial, Textbooks, and the Antievolution Movement in American Schools (University of Chicago