Legal originalism

19 min read

Canonization of written law creates three problems over time:  social realities and ethical norms naturally evolve to be incongruous with a static legal code, new behaviors and technologies arise that weren’t contemplated by the original authors, and internal inconsistencies in the text come to light.

The Hebrew Torah (“law”) exemplifies these problems: 

  1. Evolution of norms. The Levitical age of 25 years (Numbers 8:24) was later reduced to 20 years (1 Chronicles 23:24), in order to yield more priests within a decimated post-exilic population.
  2. Unanticipated situations. The Torah provides detailed instructions for designing a mobile tabernacle (Exodus 25-27), but not for building and maintaining a fixed central temple.  In the post-exilic period, Jerusalem temple worship and priestly activities became the centerpoint of Judahite identity, requiring updated instructions (1 Chronicles 21-29 and 2 Chronicles 2-5).
  3. Internal inconsistency. Is Passover meat to be eaten boiled (Deuteronomy 16:7), or only roasted and never boiled (Exodus 12:9)?  The proper technique was later harmonized as roasting (2 Chronicles 35:13).

The five long-lost papyrus scrolls eventually canonized as the Torah were written in the 8th to 6th centuries BCE.  First, the core of Deuteronomy was likely written in mid-8thc BCE Samaria (northern Canaan) and revised in late 7thc BCE Jerusalem (southern Canaan).  In the late 8thc refugee-flooded Assyrian vassal state of Judah, the Book of Genesis strategically combined northern and southern oral traditions to ensure broad resonance.  Next, Leviticus, most of Numbers, and the “priestly” half of Exodus were written in 6thc BCE Babylonian exile. 

Reality in the 4th century Persian vassal state of Judah was quite different.  It took Jerusalem four centuries to rebound from its devastation by the Babylonians in 587 BCE, which had reduced the prosperous capital city of some 20,000 inhabitants to perhaps no more than 1,000.  The 6th century territory of Judah contracted from some 3,000 square miles to around 100, and didn’t resume meaningful territorial expansion until the 2nd century BCE Hasmonean period.  Solidifying Judahite ethno-religious identity in this bleak, post-exilic context was the primary purpose of new scripture.

So, rather than suffice with a legal code from two to four centuries past, priests wrote new guidelines.  The 4th-century BCE Book of Chronicles repeatedly justifies re-interpretation, harmonization and amendment of the sacred Torah with the phrase k’mishpat (“according to tradition”).  The semantic range of the Biblical Hebrew word mishpat includes written laws/regulations/ordinances as well as community interpretation of such rules.  Its meaning encompasses both what is statutory and also what is customary. [1]  In contrast to today’s ontology, law and tradition were not dichotomous. 

Legal hermeneutics

Judicial originalists consider the meaning of a legal document’s original words to be fixed.  They aim to interpret law according to how the words were understood at the time they were written, and without regard the law’s current consequences.  Within the originalist camp, people differ as to whether to consider the writers’ intent (intentionalists/interpretivists/constructionists) or not (textualists/formalists/strict constructionists).  Intentionalists may use supplementary texts to attempt to ascertain intent or they may ascribe intent subjectively.  Textualists believe adequate meaning is extractable from the words on the page. 

Judicial pragmatists (non-originalists/purposivists/loose constructionists) consider precedent and consequences.  They understand the legal document’s writers’ intention to have been varied, contextual, and impure.  People can’t anticipate everything in the future, so the legal code should be viewed as “living”.  Interpretive pragmatism recognizes that there was debate before the ink was dry, and so it’s artificial to long afterward retroject stasis onto something that wasn’t static at its origin, to indulge in nostalgia for a certainty that never existed.  Wishing you had certainty doesn’t give you the right to pretend you have it.

Certain types of legal texts naturally demand an interpretive approach weighted more toward either empathic pragmatism (consideration of the “forest”) or disciplined textualism (focus on the “trees”).  A reader may subscribe to elements of all approaches, depending on text and context.  Collective legal text interpretation by a group is best served by a diversity of individual interpretive approaches. 

Pragmatism, intentionalism, and textualism are unequally-spaced points on a spectrum of faith in interpretive objectivity.  Pragmatists accept that objectivity, though desirable, is illusory.  The 21stc revolution in cognitive science and behavioral economics supports this amply.  Originalists still believe that it’s possible (either with consideration of probable authorial intent, or without, in the more extreme case of textualists).  Post-modernism overturned the Enlightenment’s subject-object dichotomy, recognizing that interpretation changes a text.  We now have a broad, cross-disciplinary understanding that “truth” is shifty, the interpretive lens distorts, pure objectivity is unattainable, and reading a text is an act of imposition more than extraction of meaning.

No serious person occupies either extremity of this spectrum.  Nobody claims such nihilistically complete subjectivity that leaves nothing knowable and everyone’s law books tossed out the window.  And, nobody claims such childishly pure objectivity that they believe to have achieved transtemporal telepathy with deceased authors and thus immunity from socio-political-cultural bias.  However, simplistic slander by each side accuses the other of inhabiting the absurd spectral endpoint.

Jewish non-originalism

Judaism is philosophically non-originalist.  Classical four-part Jewish hermeneutics asks readers to consider much more than the historical-grammatical meaning of a scripture text.  Importance is placed on a text’s unintended allegorical possibilities, tangential parallels with other texts, and mystical associations supernaturally revealed to (i.e., invented by) the reader.  Ascertaining the human author’s original intent isn’t the goal.  Sacred time is circular.  Thus, a reader might legitimately use a later text to inform the meaning of an earlier one, despite authorial dependence going the other direction.  Turn-of-the-millennium Jewish scribes imaginatively repurposed old scriptures as midrash, unhistorically embellishing and expanding stories to make a theological point independent of the original text’s plain meaning.  That gave us, for example, The Book of Jubilees, The Book of Enoch, The Gospel of Matthew, and The Book of Revelation.

We are grateful that the writers of the Hebrew Bible chose to include opposing views, preserve some of the authentic diversity of belief that characterized all periods of Canaanite history, and refrain from overwriting past scriptures when they produced new ones.  We inherit an astonishingly rich text, replete with contradictions that evidence accretive composition over time by different schools of thought. The canonical Hebrew Bible contains strata of 2ndc BCE Hasmonean propaganda, 3rdc Hellenism, 4thc and 5thc Persian Zoroastrian influence, 6thc exilic nationalism, 7thc poly- versus heno-theistic tensions, 8thc pan-Israelite ideology, 9th and 10thc Canaanite oral traditions, and distant memories of earlier Bronze Age experience.  Authority in those times didn’t come from a text being static.  The Hebrew Bible’s redactors believed that precisely because it is sacred, religious law must be updated and adapted to current circumstances to remain relevant. [2] 

There are 233,000 Hebrew words in the Tetrateuch (Genesis, Exodus, Leviticus, Numbers) and Deuteronomistic History (Deuteronomy, Joshua, Judges, Samuel, Kings).  The rest of the Nevi’im (“prophets”) plus the Ketuvim (“writings”) total 395,000 words.  Thus, the Hebrew Bible contains 628,000 words.  The Christian New Testament – most of which is midrash on the Hebrew Bible – contributes 138,000 Greek words of content. [3]  Then, the 3rd – 5th century CE Talmud adds 1.8 million more words of interpretation and analysis.  

Strict originalism with the Torah would have left the Jews endlessly carrying the Ark of the Covenant around in a tented tabernacle, instead of building (and re-building) a centralized temple.  The pragmatic re-interpretation of legal text supported the 7th-century BCE monotheizing centralization of the Yahveh cult in Jerusalem and the 5th-4thc BCE institutionalization of priestly temple worship.  Contemporary Western social and political order is dependent on that legacy.  Without legal text revision and re-interpretation, our “10 commandments” would refer to the 8thc BCE “Ritual Decalogue” of Exodus 34 (firstborn animal sacrifice, wheat harvest festival, no covenants with polytheists, etc), rather than the 7th and 6thc “Ethical Decalogue” of Deuteronomy 5 and Exodus 20 (no murder, no adultery, no lying, etc).

Originalism regarding Biblical law today would be absurd.  We don’t kill every child who swears at its parent.  We don’t morally condemn athletes wearing blended-fiber clothing or military veterans with tattoos.  We are right to now punish rapists instead of rape victims, and to abhor the Old- and New Testament-sanctioned institution of human slavery.  We are right to now embrace the innate homosexual orientation of ~6% of our fellow human beings.  Biblical originalism would leave us without the holidays of Hannukah, Easter, and Christmas.  Christians wouldn’t have the Trinity, the Immaculate Conception, or the penal substitution understanding of atonement.  A majority of contemporary Christian popular songs would be recognized as heretical, in that their theology is inconsistent with the Bible text and derives instead from post-Biblical tradition. 

Conservative Protestant Christianity’s struggle with non-originalism

No matter our individual religious affiliations or lack thereof, we Americans all live under a distinctly Christian “sacred canopy” (sociologist Peter Berger’s 1967 term).  Every society’s sacred canopy is both universal and invisible.  Growing up in America means unconsciously absorbing the Christian cultural and epistemological paradigm – to an extent only somewhat mediated by one’s nuclear family of origin.  

“Judeo-Christian tradition” is an ideologically-loaded 20th century American idea — loaded originally with the pretense of non-exclusion of Judaism, and more recently with a (historically inaccurate) nativist othering of Islam.  In practice, our American “tradition” is Judaic only in that 1st century Judaism was the direct source for almost all of what became Christian theology (with the rest sourced from Hellenistic philosophy and mystery cults).  Indeed, the hermeneutic of the 1st-2ndc CE Jews who wrote the Christian scriptures was identical to that of the 2ndc BCE – 1stc CE Jews who contemporaneously wrote the Hebrew Ketuvim and apocrypha.  (Moreover, their theology was also so congruent that the classification of some period scriptures as “Christian” versus “Jewish” is debatable.)  However, the subsequent exegetical traditions diverged.  

Exegetical praxis in Judaism has remained explicitly non-originalist over the millennia.  Somewhat similarly, Catholic and Orthodox Christianity emphasizes post-Biblical convention and patristic mediation of “living” scripture.  Mainstream liberal Protestant Christianity embraces a “higher” critical perspective and thus adaptability to scholarly revelation about its sacred text.  However, conservative Protestant Christianity stands alone in unqualified opposition to pragmatic interpretation of scripture.  

Because of their position against Biblical non-originalism, the Protestant literalists have particular trouble with judicial non-originalism.  Protestant Biblical literalists account for just 15% of global Christians.  But it is their disproportionately loud voices that frame popular American political and philosophical discourse…and influence secular legal hermeneutics. 

In our Christian-influenced culture, authority comes from stasis.  Hence, ex-Christian anti-theists delight in mocking the Bible for how profoundly its message changed over time.  They are correct that the Bible is not inerrant.  It’s full of orthographic errors, copyist omissions and rogue scribal glosses, anachronisms, externally-attested historical factual errors, mis-citations of other scripture, words nobody today knows the meaning of, pseudepigraphs, plot holes, unmarked interpolations, and unresolvably conflicting non-original manuscript fragments…as well as substantive internal contradictions where the same event or topic is addressed more than once.  However, regarding the contradictions, the mockers are anachronistically applying their 21st-century interpretive paradigm to 1st-2ndc CE (Christian New Testament) and 8th-2ndc BCE (Hebrew Bible) texts.  Despite their reasoning being critically unsound, plenty of contemporary Christians have de-converted in response to noticing Biblical contradictions.  For the same reason, conservative Christians are hostile to scholarly high criticism and engage in convoluted harmonizations (“apologetics”) to preserve the illusion of consistency.  And, it’s that same normative reverence for stasis that threatens politicians with ridicule if they modify a policy stance based on new information.  Being labeled inconsistent is a cutting insult in our culture.

Although Christian fundamentalists have difficulty embracing a non-originalist interpretative orientation, they may themselves be theologically non-originalist.  Some avow a docetic Christology: Jesus was a pre-existing divine being who only appeared to be human but wasn’t.  For example, I recently endured a Brazilian Pentecostal’s tirade when, in passing, I referred to Jesus as a “person”.  However, docetists like my Brazilian friend were called “anti-Christs” in the canonical Epistles of John (~100-120 CE), their celebrity proponent Marcion-of-Sinope was excommunicated in 144 CE, and docetism was officially condemned as heretical at the 325 CE Council of Nicaea. [4] 

As a practical matter, Biblical originalism is impeded by the fact that we don’t have the original manuscripts.  Academic specialists use advanced critical methods to hypothetically reconstruct what the original likely said.  But, they don’t all agree which of the extant manuscripts is closest to the lost original for any given corrupted passage.  Moreover, because of the internal contradictions and lack of systematic theology in either the Hebrew Bible or Christian New Testament, there is a wide range of scripturally accurate “original” belief.  Technically, being a Biblical literalist Christian doesn’t require belief that Jesus existed, that he was divine, or that he was a predicted Messiah.

“Original Christianity” faithful to Jesus’ own religion could mean following the 613 stipulations of Mosaic law: male circumcision, eschewing bacon and lobster, interest-free lending, premarital sexual abstinence, no worship during menstruation or a week after ejaculation, no work on Saturdays, no neutering of puppies or cross-breeding of livestock, etc.  Nonetheless, their unwittingly non-originalist reading of the Bible can lead nominally originalist Christians to reject not only antiquated elements of the Levitical holiness code, but the Old Testament in its entirety.  Such Paul-centric, quasi-Gnostic, anti-Semitic “Marcionism” was condemned as heresy in the 2ndc CE when it arose.  Still, modern-day Marcionites exist – and, ironically, are known to selectively quote from the Old Testament to argue from implied authority (with further irony of ascribing certainty and relevance to a contradictory, composite text).

This evidences the core problem with originalism in any domain:  it’s usually about convenience, not consistency.  Originalists are liable to make disingenuous arguments.  For example, the Hebrew Bible is overwhelmingly clear that we are to proactively care for the poor, and the Christian New Testament advocates plainly socialist redistributive policies.  Yet so-called literalists are typically hostile to social welfare programs and critical of, rather than compassionate toward, the poor.  Similarly, the Bible has nothing to say about reproductive rights; yet, so-called literalists invoke the Bible in campaigning to restrict women’s dominion over our own bodies.  Originalists choose which passages to privilege and then must explain away or ignore other inconveniently contradictory passages.  “Anything in the Bible that is not literally true must be an allegory, because the Bible is always literally true” goes the apologist’s unapologetically circular argument. 

Constitutional hermeneutics

Tuesday April 18, 2017, was Neil Gorsuch’s first day on the United States Supreme Court.  The self-described originalist caricatured originalism with his monothematic interjections: “Look at the plain wording.” “Just read the words.”  Other justices, including originalists, countered that it’s not so simple.  Journalists noted Gorsuch’s “shots across the bow” as pre-emptive assertions of rigid originalism to come.  On Day One, his “just the text” catechism is already tiresome. [5] 

Textualism privileges words over their consequences, maintaining that there’s no subjective act of interpretation occurring.  But language is inherently ambiguous and thus interpretation is necessary.  For example:

  • Do “privileges and immunities” refer to citizens’ rights at the local, state, and/or federal level, and/or rights derived from natural law and/or by custom, and are they substantive and/or procedural rights?
  • Are white women and non-white people “persons” deserving “equal treatment”? Apparently not, as it took an amendment two years later to give black men the right to vote, and another amendment fifty years after that to give women the right to vote.  Yet, according to tradition (k’mishpat), we now read “person” as encompassing all human beings.  
  • What did “cruel”, “unreasonable”, “probable”, and “liberty” mean in 18thc colonial American English? The document is full of aspirationally vague words with indeterminate meaning, necessitating a value judgment by later readers.  
  • Do wiretapping and drone surveillance constitute a “search”? Does revenge porn posted online constitute “speech”?  “Dead document” textual originalism can become risible.  And, when uniformly applied, it doesn’t always lead to a politically conservative outcome. 

For these reasons, Constitutional textualists are — like Bible proof-texters – notoriously selective with textual evidence.  Whether its proponents are failing to offset subconscious ideological confirmation bias, or are consciously and disingenuously fitting text to personal ideology, textualism is objectively not the objective approach it purports to be.  Textualist Supreme Court justices’ departures from textualism have been well documented, and we expect the same selective hermeneutical approach from Gorsuch.  After all, the court doesn’t keep a scholar of 18thc American English linguistics on call to inform its deliberations.  [6]

Just as the Bible is not inerrant, so neither is the United States Constitution.  Since the framers knew they couldn’t predict the future, they resisted including specific policies – with the exceptions of income tax policy added via amendment, and alcohol policy added and then subtracted via amendment.  Even so, the document made (and eventually corrected) what we now accept was an egregious moral error regarding the specific policy of slavery.  The Constitution is a short document of 7,591 words (compared to 4,200 in this essay), and in it the framers were smart to mostly remain general and abstract.  However, that well-intentioned textual magnanimity translates into greater subjectivity in interpretation later on.  This is parallels how the Bible’s parabolic abstractions and poetically non-specific language (plus errors, contradictions, non-systematic message, and composite structure) forces subjectivity in its readers.  By their natures, both texts provoke endless interpretive controversy.

Object informs interpretation.  Though most texts don’t announce what hermeneutic to use in interpreting them, both the Bible and the US Constitution helpfully do so.  The 9th amendment is famously troubling to constitutional textualists, in that it recommends non-originalism.  It states that failure to specify a right in the Constitution shouldn’t translate into restricting that right.  The document knows it isn’t comprehensive.  In addition to being unfeasible in practice, strict “originalism” is both non-Biblical and non-Constitutional.

Law has purpose.  Interpretation should further the law’s purpose — as distinct from the law-writers’ intent, and as distinct from imagining how the law-writers would have solved a problem of today that they never could have contemplated.  The purpose of the United States Constitution is stated up front: “in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.”  Fidelity to purpose requires adaptation to match changing social and ethical norms.

Faithfulness to the overall purpose of a document also requires reading it as a unified whole, rather than as isolated passages.  This is considered best practice for legal documents as well as religious scripture.  For example:  

  • The ~700 BCE text of Isaiah 7:14 depicts a court prophet in 734 BCE explaining to King Ahaz of Judah that a young woman having conceived is a comforting divine sign that the Israel-Aram coalition against Judah will fail. If one digests the Book of Isaiah in its entirety, and together with the Deuteronomistic History from which it copies some content, its multi-century historical context and anthology structure is apparent.  However, reading it in decontextualized excerpts, many have claimed that the words predict Jesus.  The interpretive fallacy is aided by the 3rdc BCE translators’ choice — either careless, ignorant, or ideological — to (a) change a present perfect Hebrew verb to a future tense Greek verb and (b) replace the specific Hebrew word for “young woman” (almah) with an imprecise Greek word that can mean either “young woman” or “virgin” (parthenos).    
  • The 2nd Amendment of 1791 states its purpose as “the security of a free state”, and thus the right to bear arms as conditional. In the overall context of the Constitution, the potential need for a militia to effectuate that security was due to the new republic’s lack of a standing army.  In an era that also lacked local police forces, domestic tranquility got some help from private citizens with muskets that fired 2 times per minute.  Today, domestic tranquility is harmed by easy access to guns firing 600 times per minute.  Weapon technology and social reality have changed in unanticipated ways, demanding updated common sense interpretation of how to achieve the 2nd amendment’s purpose.  Is this an oversimplification…or is it actually the “plain wording”?  [7]  Honest originalism would restrict the right to bear arms today. 

Intentionalism is less extreme than textualism, but leads to its own thorny problems.  In interpreting some legal texts (e.g., contracts and wills), the intent of the writer has significant merit for interpretation.  Less so for the Constitution.  The purpose of our Constitution is not to further the disparate and unstated intentions of 39 upper-class, East coast, Anglo-Saxon, Protestant,  heterosexual, slave-owning, pre-industrial, 18th-century male lawyers. [8]  For example, it is clear from extra-textual evidence that the intention of the 14th Amendment in 1868 was definitely not to prohibit racial segregation; yet, we’ve (thankfully) interpreted it as such ever since 1954.  A Constitution interpreted strictly in light of authorial intent — whether imputed or extra-textually researched — doesn’t necessarily provide the best foundation for a more perfect union, in that it may not remain consistent with the Constitution’s own purpose: the welfare and liberty of contemporary citizens.  The temporal and cultural distance between 1787 and 2017 is vast.  As has often been asserted, the Constitution should be wiser than its writers. 

Humans are human because we can transmit valuable learnings across generations.  This is a feature only known in hominims. [9]  Tool manufacturing started 3.3 million years ago with hominims (interestingly, among primates outside our own genus homo).  Today, intentional tool-making and its corollary of high-fidelity knowledge transmission isn’t seen in any living creatures other than homo sapiens.  We humans use tools to make other tools, rather than just appropriate found objects as tools.  Crucially, we then teach what we learn, so our children don’t have to start over knapping stones into axeheads and re-inventing the wheel every generation.  The fundamental fallacy of strict legal originalism is that it repudiates the wondrous capacity of humanity to learn, accrue wisdom and become more efficient, moral, prosperous, cooperative, and healthy over time.  When it comes to Constitutional law, we can do so much better than to “just read the words”.  

April 2017

 

Notes

[1]  One example of its statutory usage: In the Book of Deuteronomy, Moses recapitulates mishpat, which we now refer to as “the ten commandments”. 

[2] The Christian New Testament continues the Hebrew scripture practice of incorporating opposing belief traditions without harmonization.  It teems with theological contradictions and incomplete articulations of core doctrinal points.  A systematic Christian theology only coalesced two centuries after the last Biblical scriptures were written.  Hence, the need for so much textual harmonization today among people who can’t tolerate that contradictory diversity. 

[3]  For example, 70% of the Book of Revelation’s 404 verses are decontextualized Hebrew scripture references; and much of the remaining 30% is borrowed from extracanonical Jewish apocalyptic writings and Babylonian mythology.  Similarly, 20% of the Gospel of Matthew’s 1,071 verses are Hebrew scripture citations and references; and much of the remaining 80% are scriptural plot parallels, plus ideas from Greek Cynicism philosophy.  More broadly, none of the Old Testament passages that Christians now read as predictions of Jesus actually refer to a future Messiah at all.  Rather than being ignorant or deceptive, the writers of the Gospels and the Book of Revelation were engaged in the then-common practice of pesher – a sub-type of midrash that divorces old scriptures from their original intended meaning and creatively repurposes them to explicate current events.  However, in short order, rapidly-expanding early Christianity forgot its own original hermeneutic.  For the next 17 centuries, the wider Gentile world mistakenly read Christian scripture as historical rather than midrashic.

[4] The Christologies of Jesus’ posthumous followers included docetism, separationism, incarnation, adoptionism, as well as the belief that Jesus wasn’t divine.  All but incarnation were eventually declared heretical.  The canonical synoptic gospels reflect resurrectionist adoptionist and baptismal adoptionist Christology – another example of intentional preservation of contradictory and heterdox belief traditions. 

[5]  Gorsuch was raised Catholic and now attends a liberal Episcopalian church – an example of the imperfect correlation of nominal religious affiliation with stance on judicial hermeneutics.  To the extent that exegetical paradigms influence legal interpretive paradigms, they are defined more by the sacred/cultural canopy than by individual worship community membership.

[6]  The long deliberations often dive into mind-numbing semantic minutiae.  Recall that President Bill Clinton was excoriated by the media in 1998 for caveating acknowledgement of an extramarital affair based on “what the meaning of ‘is’ is”.  This was plausibly earnest logic from a cerebral law school graduate who knows that significant constitutional decisions have hinged on the meaning of a single word.

[7] The accusation of oversimplification is used to silence commentary on certain topics, including constitutional hermeneutics, by laypeople.  However, any topic can be addressed in a paragraph, an essay, a book, or an entire shelf of texts.  It’s a self-serving cognitive bias to believe one’s own professional domain uniquely defies summarization and explication.  Constitutional law is not a mystery beyond the comprehension of those who didn’t attend law school.  Justices:constitution::clergy:bible.  Both law and religion benefit from thoughtful disintermediation.

[8]  Although the signers were nominally Christian Protestants, some held non-Trinitarian and Deist beliefs that most Christians today would label “non-Christian”.

[9]  “Hominim” is a taxonomic sub-tribe of the Great Apes sub-family, in the Anthropoids sub-order of the Primate Order.  It comprises the genus homo with its multiple extinct sub-species and one extant species sapiens, plus other genera of pre-human primates.

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