October 22, 2020
Supreme Court nominee Amy Coney Barrett is a self-proclaimed “originalist.” I have no desire here to discuss Judge Barrett but I do have a special interest in “originalism,” because it resonates with my concerns about biblical interpretation.
In terms of United States law, “originalism” is a way of interpreting the US Constitution. It asserts that all statements in the constitution must be interpreted according to the original socio-cultural understanding when it was adopted. As Judge Barrett explained recently, the Constitution’s “meaning doesn’t change over time.”
“Originalism” is in contrast to the interpretive understanding that the Constitution should be interpreted in the context of current socio-cultural realities, even when such an interpretation is different from the original interpretation of the document.
My field of course is not jurisprudence but historical theology. As an historical theologian I do have problems with “originalism.” Understandings do change. The old context is not necessarily the contemporary context. The meanings of words change as well. For example, the word “gay”was originally synonymous with happy or cheerful. In the later 20th century it gradually came to designate someone who is romantically or sexually attracted to someone of the same gender or sex.
“Originalism” understood as “the original meaning theory,” is closely related to literal textualism. It maintains that interpretation of the written constitution or a law should be based on what people, living at the time of its adoption, would have understood as the ordinary meaning of the text. Most legal originalists, like Antonin Scalia — Associate Justice of the US Supreme Court from 1986 until his death in 2016 — hold this view. Scalia was in fact the intellectual anchor for the originalist and textualist interpreters in the US Supreme Court’s conservative wing.
When speaking or writing about “originalism,” I have often used the famous phrase from the US Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among men…….” Words and their meanings…
If one goes back to the lived reality understanding of the signers of the 1776 document, they – all white MEN — certainly did not accept that native Americans and African slaves were equal to them. Nor did they think that women were equal to men.
The inequality of women and men in US society, for example, has lasted a long time. Almost a hundred years after the Declaration of Independence, Elizabeth Stanton and Susan B. Anthony founded, in 1869, the National Woman Suffrage Association. In 1872 Susan B. Anthony then attempted to vote in the presidential election in Rochester, New York. She was arrested, convicted, and fined. Finally, in 1920 the Nineteenth Amendment was passed, guaranteeing women the right to vote in federal elections.
When understanding a legal document – or a biblical text – one must consider: (1) the understanding of the people back then when the document was written, (2) how that text affected human behavior back then, and (3) how we understand such a text in terms of socio-cultural understandings today. I value tradition but have one foot in earlier tradition and the other in contemporary lived experience.
How, for instance, do “originalists” understand Hebrew Scripture texts like these from Chapter 20 of Leviticus (which reached its present written form between 538–332 BCE) “If anyone curses his father or mother, he must be put to death….If a man commits adultery with another man’s wife–with the wife of his neighbor–both the adulterer and the adulteress must be put to death….If a man lies with a man as one lies with a woman, …They must be put to death.”
Or, for example, these New Testament texts: Matthew 5:29: “If your right eye causes you to sin, gouge it out and throw it away. It is better for you to lose one part of your body than for your whole body to be thrown into hell.” Or Matthew 5:30: “If your right hand causes you to sin, cut it off and throw it away. It is better for you to lose one part of your body than for your whole body to depart into hell.”
More recently in the news, thanks to Supreme Court nominee Judge Amy Coney Barrett and her far right “Catholic” group People of Praise, there has been much discussion about their interpretation of Ephesians 5: that men are divinely ordained as the “head” of the family and that it is the duty of wives to submit to them.
The textual interpretation of Judge Barrett’s group is very authoritarian and certainly tainted with a dose of patriarchal misogyny. Ephesians 5:22-24 (most likely written not by Paul but a student of Paul the Apostle) really did not say that wives are inferior to their husbands; but the text does reflect the cultural understanding of the time. The household of the first century Greco-Roman world was hierarchical, with the adult male firmly entrenched at the top and his wife, children and slaves below. Submission meant a woman was expected to center her life around her husband, avoid the assertion of her own desires, and conform herself to her husband’s will.
When first century authors of Scripture penned their words and first century audiences heard them they did so in the first century socio-cultural context. Contrary to what Judge Barrett says, we do grow in our understanding and we should not be controlled by a static and unchanging cultural understanding. Textual interpretations are provisional. We can and should understand the past and its cultural setting and language. We must, however, live in the present, with our contemporary cultural understandings, perspectives, and language. And on that foundation we move toward the future, often speaking with another voice.