Give Me That Old Time Originalism

When President George W. Bush nominated Harriet Miers to the Supreme Court in 2005, Texas Supreme Court Justice Nathan Hecht described her as “an originalist—that’s the way she takes the Bible,” and stated that it also described her approach to the Constitution: “Originalist—it means what it says.”

Justice Hecht is not the only lawyer to notice a connection between originalism in law and conservative approaches to biblical interpretation. Harvard Law Professor Cass Sunstein, for example, has called originalism the “fundamentalist” legal framework insofar as it “represents an effort to restore literal meaning of a sacred text.” Other critics have blamed the Supreme Court for succumbing to the “twin seeds” of “biblical literalism and constitutional originalism” in controversial cases.

In a new volume edited by Mark J. Boone and Mark D. Eckel, essayists attempt a less combative treatment of the similarities—and important differences—between originalism in law and theology. Untangling those connections is worthwhile because, as Boone explains, “originalist-leaning hermeneutics motivate rather a lot of Christian theology and, in law,” originalism is ascendant. The central thesis of Originalism in Theology and Law is that there are “significant connections” between originalism in these two fields, but that “originalism in biblical theology and originalism in American law must be applied with attention to differences between the texts involved.” For example, “differences in the type of text, in the purpose and function of a text, or in the origins or sources of a text’s authority may all affect” how originalism “fits a particular text.”

The contemporary legal originalist movement began in the 1970s as a response to Warren Court rulings that were seen as unmoored from both constitutional text and history. Early advocates—like Robert Bork, Raoul Berger, and Edwin Meese—emphasized the original intent of the Framers, while later expositors (most notably Antonin Scalia) focused on identifying the text’s original public meaning. Today, the leading strand of originalist theory posits that the meaning of the constitutional text was fixed when the document was ratified and contends that sound interpretation requires the interpreter to determine the text’s original public meaning.

The closest analogue in biblical interpretation is probably the historical-grammatical hermeneutic, which attempts to discover the meaning of the text as revealed by its grammar and the historical context in which it was written. The Chicago Statement on Biblical Hermeneutics gives one expression of this approach in the Protestant evangelical tradition; it affirms that “the meaning expressed in each biblical text is single, definite, and fixed.” In other words, scripture has an objective meaning, and that meaning does not evolve based on the reader’s response to it. In the Roman Catholic tradition, Vatican II’s Dei Verbum can be read to take a similar position: 

For the correct understanding of what the sacred author wanted to assert, due attention must be paid to the customary and characteristic styles of feeling, speaking and narrating which prevailed at the time of the sacred writer, and to the patterns men normally employed at that period in their everyday dealings with one another.

In practical terms, one can think of a number of similarities between how the historical-grammatical approach and constitutional originalism are implemented. When done well, both approaches heed what particular terms meant when they were written rather than long before or long after. The federal government’s obligation to protect states against “domestic Violence” in Article IV, Section 4 of the Constitution does not refer to physical abuse in the home. And as many a New Testament scholar has explained, the Greek term ekklesia does not mean “called out ones” simply because its roots are ek (out of) and kaleo (to call); both approaches care about particular meanings at particular points in time. 

Both approaches also pay close attention to grammar. For example, must a punishment be independently “cruel and unusual” to violate the Eighth Amendment, or are those terms a hendiadys forbidding punishments that are unusually cruel? (A hendiadys is a figure of speech that occurs when two words connected by “and” express one single yet more complex idea, when one could be used to modify the other.) When Paul uses the terms didaskein and authentein in 1 Timothy 2:12, is he referring to separate acts of teaching and exercising authority, or to one concept of authoritative teaching? Much ink has been spilled over both questions. Finally, both approaches also consider how particular language fits within the greater text, whether it be comparing the differences between the Vesting Clauses in Articles I and II of the Constitution, or harmonizing Romans and James on the relationship between faith and works.

Contrary to Sunstein and other critics, the connections between originalism in theology and law are not reducible to a shared wooden “literalism.” Originalism, writes Boone, “requires that we interpret the original meaning of a text according to the literary conventions of the time of its writing.” Although a survey cited by contributors Nicholas Higgins and Micah Allred found that 76 percent of originalists believe in the literal truth of the Bible (whereas only 35 percent of non-originalists do), this suggests a commitment to taking the scriptural text seriously—not to blindly ignoring idioms, apocalyptic symbols, and poetic language.

There are differences between originalism as applied to scripture and as applied to the Constitution, however, and this volume helpfully puts its finger on two important ones. First, a complicating factor for any sort of “biblical originalism” is the orthodox belief that holy scripture has two authors—one human and one divine. Biblical texts may often mean more than what was originally intended—or perhaps even understood—by their human authors. But even “if some things the Bible means were not intended by its human authors,” Boone writes, “it remains the case that all things the Bible means were intended by God.” Second, if scripture is authoritative because of who wrote it—God and those commissioned by Him—it does not depend on “We the People” for its legitimacy. As contributor Mark Snoeberger puts it, “the Bible is inspired, but the United States Constitution is not.”

The upshot of both points is that originalism for biblical interpretation will be more open to seeking out authorial intent than will constitutional originalism—at least, more than the variety of originalism focused on original public meaning. It is perhaps unsurprising, then, that orthodox interpreters of scripture have long been comfortable going beyond the grammatical-historical method to ask how a passage fits into the Divine Author’s overall plan of redemption. Medieval interpreters applied a four-level method that considered the biblical text’s literal, allegorical, tropological, and analogical senses. And Reformation-inspired interpreters have often used a redemptive-historical method that aims to identify how every biblical text relates to the person and work of Christ. These kinds of inquiry into overarching purposes often sit uneasily with a constitutional originalism aimed at original public meaning. The redemptive-historical method, for example, arguably finds a more natural consonance with some of the purposive reasoning of Church of the Holy Trinity v. United States—which many modern textualists and originalists eschew.

Originalism in Theology and Law is a welcome salvo in an ecumenical and interdisciplinary conversation that has been too long dominated by originalism’s critics. A future volume could fruitfully explore perspectives from the Roman Catholic and Orthodox traditions, which prioritize the role of tradition in biblical interpretation, and their relationship to legal interpretive methods that emphasize tradition as a guide to original meaning.

The views and opinions contained herein are solely those of the authors; they are not attributable to any employer or client.

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