Some Problems with Originalism

Some Problems with Originalism October 20, 2020

With the nomination of Amy Coney Barrett to the Supreme Court the topic of originalism is once again in the public conversation. It’s interesting to me that some in the Catholic academic legal community want to put some distance between themselves and Protestant fundamentalists when it comes to originalism. They try and do that here.

And yet, it may prove difficult. There may, in fact, not be much distance between them and fundamentalists when it comes to this issue. See here. What we might rather say is that what both fundamentalists and conservative Catholics show here is that they are much more modern (see the whole postmodern discussion when it comes to interpretation), and in sync, when it comes to originalism they either would care to admit.

What’s at issue here is one’s hermeneutics, which is the art and science of interpretation. We are always interpreting what we read. We are never simply reading the words on a page and understanding perfectly and directly exactly what the writer intended or meant. That is a naïve, simplistic, and irrational view of reading, especially of any old or ancient text (where the original writer is dead).

In seminary, I was taught a hermeneutical method of interpretation called the grammatico-historical method. Meaning, the two critical questions a reader should bring to any text are what does the grammar (comprehensively) and the historical context tell us. This is something we do before getting to meaning or how we should interpret the text. Of course, the underlying presupposition here (among many others) is: What did the writer originally intend to communicate, in their time, to any readers—and how would those readers have understood the author?

I really don’t have a problem with this method of interpretation, per se (putting aside very important postmodern questions and criticisms). It’s a rudimentary first step to all interpretation. I think any problems come later. I believe the issues raised by originalists are sort of a dodge. They don’t address the real problem.

Every reasonable and rational interpreter wants to know what the original writer intended to convey and how any readers, at that time, would have understood the writing.

But that is not where any problem truly lies. Both those who call themselves originalists and those who do not, do both those things—study the grammar and historical context. Here is the problem: After that is done, one still has to interpret the text and apply it to the present.

One has to now think about the text within a much wider set of criteria. Once we have come to a solid view of the grammatical and historical aspects, we have to ask how our core philosophical/theological understandings compel us to interpret what that all entails. We also have to place the text in the wider body of similar literature and other writings. Then, we must consider the text against other forms of knowledge (science for instance).  Finally, we have to apply the text to our current time and context.

That two people, originalists or not, often come to two different interpretations of a text are due to these other aspects of interpretation.

What I dislike about the originalist understanding is they often think when they have addressed the grammar and historical aspects they are done, and we should simply adhere to what we have concluded from those two criteria alone.  This, too, is exactly what fundamentalists do when it comes to the Bible. For instance, in Genesis.  From the second link already noted:

“In the recent Supreme Court nomination furor [not currently], Evangelicals were often named by the media as supporters of the originalist nominee. The reason for this is obvious as to hold on to biblical mores and values, a fidelity to the culturally Christian context within which the constitution was framed is essential. It is therefore a bitter irony that many of these same evangelicals do not take an originalist position on our own ‘founding document’ as Christians, the Bible—particularly the ‘preamble’ to the Bible, the opening chapters of Genesis.”

The writer’s point is that an originalist position would mean agreeing with the plain reading/meaning of the opening chapters of Genesis and how those reading it would have understood it then, which, for us now, would necessitate holding to a young earth view—a view the earth is less than 10,000 years old.

And of course, this is what bothers conservative Catholics about the fundamentalist view. The claim in the aforementioned first link, is that fundamentalists focus on the literal meaning and eschew the “multivalence of scripture,” because of their “deep distrust of an educated faith that asks questions and fosters multiple meanings.”

Of course, this undercuts somewhat their originalist position. In other words, once we’ve concluded what the writer originally meant to convey, we must still ask questions and be open to “multiple meanings,” which is exactly what those who champion the originalist position suggest we shouldn’t do.

The Villanova writers recognize the difference between the Constitution and sacred writings and there are many other qualifications. Their main point remains:

“…But it is not good practice to read meanings we would like to be present into the original text when they simply are not there.”

However, that’s not the only consideration. It’s not a matter of reading meanings we prefer, into the text, that “are not there” (wait, isn’t that an interpretation?!).  If we’ve addressed the question of what the writer probably meant, and what their readers probably understood, originally, we still have to ask what that might “mean” or how it would apply, now.

Otherwise, in the case of the Bible at least, we would have to hold that the earth is less than 10 thousand years old. In the case of the Constitution, we would run into similar problems—not of belief, but of law and custom. The same problems apply, either way.

Thus, I don’t think these Catholic writers, or any originalist, can distanced themselves as much as they would like from Protestant fundamentalists. I sense a kindred spirit, no matter the condescension shown here by conservative Catholics toward fundamentalists. I’m reminded of the line in A River Runs Through It, about Methodists just being Baptists who could read—that observation may apply here.

Okay, so we know (we think anyway) what the original writer probably intended and how they were understood. Now what? Well, now comes the hard work of interpreting and applying that “intention” and historical understanding currently, whether in law or religion.

And in the process of that hard work a person must still be true to themselves, history, other forms of wisdom and knowledge, conscience, and community. The reading of a text, one that only considers the writer’s original meaning and context, while rudimentary and necessary, is ultimately too lazy and simplistic a reading—of anything.

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