I paid little attention to Clarence Thomas’ appointment in 1991 other than to recognize, given my background in nonverbal communication, that he was probably lying about harassment. The research reveals that telling whether a person is lying is not nearly as easy as some would like you to believe. So, my conclusion was “probable.” But in watching Anita Hill all the nonverbals indicated a high probability she was telling the truth. That was all very frustrating. My focus was completely upon the harassment issues and what that meant for the future of the court. But what I ignored at the time was Thomas’ hermeneutic (interpretive) approach of Originalism to his interpretation of the Constitution. A serious mistake on my part.
In contrast, I paid a lot of attention to Scalia’s appointment and his hermeneutic. I was especially perturbed and rejecting of his later interpretation of the Second Amendment. My response was “Oh god, no. I’ve been here before. This is just crazy.” And then there is his protégé, Amy Coney Barrett.
I have yet to find a legal writer who understands—or cares--that we’ve been dealing with Biblical parallels to Originalism that date back to the 1920s and the Fundamentalist-Modernist Controversy. Thomas, Scalia and Barrett would be considered “Fundamentalists.” Legal Fundamentalists. The comparison has been enlightening. What drives my interest in both the Controversy and the Scalia-Barrett commitments are my seminary education in systematic theology and my graduate studies in modern rhetoric and intellectual American history--and the legalized mass murder made possible by Scalia’s Originalist (mis)interpretation of the Second Amendment (D.C. vs. Heller) and the NRA.
The Controversy (Fundamentalist-Modernist) was a major schism that originated within the Presbyterian Church. At issue were foundational disputes about the role of Christianity, the authority of Scripture, the death, resurrection, and atoning sacrifice of Jesus. From the schism, two broad factions within Protestantism emerged: Fundamentalists, who insisted upon the timeless validity of each doctrine of Orthodoxy, and Modernists, who advocated a conscious adaptation of religion in response to the new scientific discoveries and the moral pressures of the age. Though starting among the Presbyterians, it soon spread to conservative pastors and members of almost every denomination within the United States. My home church was among those which split from the mainline denomination over the Controversy. The consequence of the Controversy was that a number of new seminaries representing Fundamentalism were founded throughout the country. My first graduate degree was from one of those schools.
In the early years of those schools the focus was centered on the hermeneutic for Biblical interpretation. In 1962, when I graduated from seminary, nearly all Fundamentalist schools took a very literalistic approach to the interpretation of the Bible. Billy Graham’s statement, “the Bible says it, I believe it,” and that’s that—was essentially the rule for interpretation. His hermeneutic was based on the words of the Bible. Some Fundamentalists talked about the Bible as though it was dictated by God to the writers. But significantly, Graham and most Evangelicals believed that the meanings of the words, phrases and the Bible as a whole were fixed—inerrant--at the time of their creation by the writers and editors of the Biblical texts. That Biblical approach to interpretation would be called textualism, or, naively, literalism. Textualism is just another term for “Originalism.” It’s essentially the belief in the word “fixity.” The notion that words and ideas don’t change their meanings over time. It is a profound tone deafness to the vagaries of history, revealed again and again in the Biblical text. It’s a failure to recognize that the Torah (Genesis through Deuteronomy) was adapted, changed, and even “re-translated” in the Prophets, Wisdom and New Testament materials.
Inerrancy became the means of validating the Fundamentalist faith and its very intelligence. Psychologically, it provided Fundamentalists with a highly problematic form of emotional security, security based on profoundly flawed interpretations which ignore much of the text’s history.
In their telling, Biblical Fundamentalists are just following the Bible when they advocate against abortion, gay marriage and strict separation, even though their views can’t be supported by actual texts. In contrast, many Evangelicals and most Mainline Christians tend to accept the general Pauline notion that, “There is neither Greek nor Jew, slave nor free, male nor female, for you are all one in Jesus Christ." The Fundamentalist interpretation of Scripture is primarily a reflection of personal, conservative values. Indeed, inerrancy is often used as a smokescreen to make other Christians think they are basing their decisions on the “true” meaning of the Bible.
Historical-critical and the “new” methodologies
What really has impacted the Fundamentalist reading, though, are the powerful historical and critical processes brought forward throughout the twentieth century. Although historical criticism dates back to the Protestant Reformation, the process really came into its heyday in the 20th century. By the late 1970s the more forward-looking evangelical schools had gone beyond literalism and the simplistic focus on words, buying into much of what was referred to as the historical-critical methodology. Though historical criticism came out of both religious and non-religious scholarship, the words and phrases of the Biblical text were not ignored and rejected. The Bible remained “inerrant,” with a lot of twisting and turning for Evangelicals. But they began using the extensive historical and cultural research that enabled the words and phrases to be set into the context of the world in which they were written--"the world behind the text." Fundamentalists just ignored all the methodologies.
Historical criticism focuses on the sources of a document to determine who wrote it, when it was written and where. By the 1970s, the historical methodology opened the door to newer methods for understanding the text—especially canonical (answering the question how a text fit into the entire Bible), rhetorical and sociological. What was the writer’s personal story? What other texts did he write and how do they compare with what is before us? And just as important, the focus of research was also upon the assumed audience. How, for example do the Roman Christians differ from those in Alexandria, or Ephesus, or Corinth? Understanding the audience for a text is just as important as understand the creative writer.
After that first set of basics, the next question of the historical-critical methodology is how does the writing we are studying compare to similar documents of the time? The disciple John, supposedly was responsible for a Gospel, three epistles and the Book of Revelation. Matthew, Mark, and Luke are all very similar in terms of their basic content of what Jesus said and did. However, they also have significant differences. How do we understand and explain the differences? Of course, since the 1950s archeologists and historians have discovered many documents from that time. The Dead Sea Scrolls, which contained fragments of the Old Testament were found in 1947, but it took years to figure out how to unroll the parchments without destroying it, years to decipher it and still more years to compare it with contemporary documents. The Gilgamesh Epic, antecedent literature with a flood story, dates from hundreds of years prior to the Old Testament, providing insights into the Genesis story. As you can imagine, when it comes to the Bible, there are hundreds of researchers and scholars involved in all these undertakings. But in pulling it all together, the research focuses on how words, phrases and meanings change as history and historical context change. Of course, there are issues in which a majority agree and other issues which are very much in flux. More recently and because of the immense archeological and cultural findings, many of the studies are converging.
Most Constitutional students take a similar historical-critical process to the U. S. Constitution. They just label it “historical originalism.” But there is one significant difference. When you’re dealing with the Bible, you’re working with texts, languages and history that date back thousands of years. When you’re dealing with the Constitution and its history, you’re dealing with cultures, ideas and writing that only date back to John Locke (b. 1632) and other philosophers from the 100 or so years prior to the Constitution. But with both the Bible and the Constitution, you’re dealing with rhetorical worlds, documents, phrases, words and contexts that have both similarities and differences with our world today.
Originalism and the Constitution
In his masterful study of Originalism, published in the Fordham Law Review in 2015, historian Jack Rakove focuses on the period between 1765 and 1790, the relevant period for the framing and accepting of the Constitution. His analysis of the hermeneutic issues surrounding Originalism reads very much like my explanation of the historical-critical Biblical analysis. For ease of understanding, he labels the ideas of Scalia and Bennett semantic originalism (SM) and his approach and that of the huge majority of legal professionals “historically-grounded originalism (HGO).” The language can get confusing, but if you remember that when most writers and I refer to originalism we’re talking about the semantic originalism (SM) of Scalia, Thomas and Bennett.
To begin, Rakove points out that the basic idea of SM is that the meaning of the Constitution was fixed (like Biblical inerrancy) at the time of its adoption. As I write, I remember a statement from Scalia about the “beauty” of the Constitutional language—very indicative of his central emphasis and reverence for language. Even though I was unaware of Originalism at the time, I remember thinking that his statement was “weird,” elevating the Constitution to a status that was divine-like. Even then, I recognized the similarity to Biblical Fundamentalism, indicative of a lack of historical insight and impact.
Most historians think of SM as a game for “lawyers and law office history.” In contrast, the HGO approach to the Constitution does not think of the Constitution primarily as a document for the Supreme Court, but rather as a reflection of the political action and political debates taking place at the time of its creation. It was a basic account of what Americans were thinking and doing in that time period—and how the history and their ideas changed over time. With that assumption, understanding and using the Constitution is fundamentally a historical task—not just a divine-like, semantic task about words, clauses and sentences. It reminded me of a conversation with one of my older university professors who thought I should use the King James for preaching, because of its beauty--not the new Revised Version of the Bible. I remember commenting that that was exactly the reason I was not going to use the King James. That “beauty” made the King James irrelevant to the parishioner’s immediate insight or need and far less human. That distinction identifies a very crucial fault line in our understanding of the faith: distant versus immediate, pragmatically irrelevant versus pragmatically relevant.
The revolutionary period between 1776 and 1787 is a time of dynamic, exciting change in the early states. A time in which the basic understandings, the core concepts of American political life, were undergoing extreme political and social change. Modern rhetoricians understand that language evolution and change inherently go with political and social change. As Rakove points out, describing this change and its narrative is a task at which not every historian is “equally adept.” For me, the time between 1970 and 1985 was a period of change which few of my colleagues could handle intellectually. Most remained tied to their backward views of inerrancy and the Biblical text, fearful of the historical-critical process, if, that is, they permitted any reconsideration of their past views.
The comparison of the goings-on between my theological world of 1970 through 1985 and Bernard Bailyn’s description of the revolutionary decade of 1776-1787 is shockingly similar: Words and concepts had been reshaped in the colonists’ minds in the course of a decade of pounding controversy—strangely reshaped, turned in unfamiliar directions, toward conclusions they could not themselves clearly perceive. They found a new world of political thought as they struggled to work out the implications of their beliefs in the years before Independence. It was a world not easily possessed; often they withdrew in some confusion to more familiar ground.
What shaped my approach to Biblical study was identical to Rakove’s assumption that any satisfactory answer to the problems of the text had to be fundamentally historical, an approach neither Scalia nor Barrett seem to fully understand. When I started my graduate study in rhetoric, my critical tool was history. And so, when I had had enough with the circular thinking about Biblical inerrancy, it was my historical and rhetorical tools that offered the only viable solution. I had had enough of a textual view that had demonstrated no relationship of significance to the world in which I lived, or—at that time—ministered. That Fundamentalist perspective of reality could not deal with the very complex consequences of technology, and they have shown themselves tone deaf to educational inequality, public health needs, the failures of our justice systems and our racist ideologies.
Just so, only a progressive vision of Constitutional law can address the serious flaws in our democracy, the racial discrimination that undermines equality of voting in many states, and face up to the climate change already wreaking destruction. Significantly, the Supreme Court with the appointment of Justice Amy Coney Barrett is dangerously out of sync with the country and a realistic historical understanding of the Constitution.
Plenty of Democrats are calling for their own act of court-packing, but that’s a move that could provoke further escalation, leaving the Court’s image and rule of law badly damaged. Given the current wisdom by two leading Constitutional scholars, Daniel Epps and Ganesh Sitaraman, that probably won’t happen. Instead, with the support of Pete Buttigieg and Elizabeth Warren, radical rethinking can result in a far less biased, but reformed court. The two-century Court model, like our Rooseveltian government model is out of date--and crying out for clear new thinking for this new world. Or, and this is a significant caveat from Rahm Emmanuel, with control of the Presidency, Senate and House, rather than just continue to play defense in the courts, Democrats should soon have the votes also to go on offense in the legislative arena. I prefer Emmanuel’s model—especially with all the other governmental changes contemporary America needs and deserves.
See especially:
Daniel Epps and Ganesh Sitaraman, How to Save the Supreme Court, Yale Law Journal, 10/2019.
https://scholarship.law.vanderbilt.edu/faculty-publications/1129
Rahm Emmanuel, Washington Post, 10/27/2020. https://www.washingtonpost.com/opinions/2020/10/19/answer-isnt-court-packing-its-legislating/
Brink Lindsey and Samuel Hammond, A New Policy Synthesis. Faster Growth, Fairer Growth. Niskanen
Center, https://www.niskanencenter.org/faster_fairer/a_new_policy_synthesis.html