Originalism

"No man ever believes that the Bible means what it says: He is always convinced that it says what he means."

-George Bernard Shaw

Another short post. I was out of bed at 6:30, after I awakened outlining my answer to the take-home final for Tax Planning for Real Estate Transactions in my head in the early morning stillness. I got it all sketched out in my horrible handwriting on a legal pad before I forgot what I was thinking, and will write out my actual answer tomorrow morning. One step closer to being finished.

I ran across an essay earlier by a legal scholar on the political dishonesty of originalism, and its subtle message called me up short, although in retrospect it was pretty self-evident.

Originalism is a canon of construction used in constitutional law to tease the law out of the sometimes vague language in the Constitution itself. Rather than reading the document through the lens of over two hundred years of shared experience as a nation, an originalist restricts his gaze to what the actual drafters of the document thought they were doing, based not only on the language but on what was going on around them in the 1780s. Trying to figure out whether the due process clause protects a woman's right to reproductive autonomy requires, then, a trip back through time and a review of what James Madison might have thought or experienced when it came to abortion.

It is an approach with baked-in flaws. "The past is a foreign country; they do things differently there," as someone smarter than me once observed. We can't possibly know or feel what they lived. And desired outcomes seem to drive the resources upon which originalists rely--there's a lot of bad history out there.

But that wasn't the point of this morning's essay. Rather, the author observed that claiming to follow a facially apolitical set of canons is essentially political, to the extent that the canon itself directs the jurist to a set of essentially political outcomes. "I don't like abortion, so I'm going to rule that it's not protected by the Constitution" would be an overtly political ruling. "I don't think abortion is protected by the Constitution, because the authors of the Federalist Papers didn't think such a right existed" sure sounds apolitical, but if one is advancing a revanchist agenda it is a tool for the courts to undo all the constitutional jurisprudence since then.

Which, of course, led me to thinking about the Bible. Unsurprisingly, the same wing of our national political house that gave us constitutional originalism is heavily populated with folks who treat scripture in much the same way. Rather than doing what every good preacher does, and shining the light of our experience on that assembly of writings cobbled together over centuries, the scriptural originalist tells us that it's just not our place to interpret beyond the plain language of the text, or to go outside whatever its authors might have thought or experienced going on three thousand years ago.

And of course, as originalists, they are especially fond of the "original" version of the Bible, the King James Version, a fine but flawed translation that biblical scholars generally see more as a historical piece than the definitive version of the text.

But that's how God wrote, you see, when he wrote the Bible, with all those "thees" and "thous", using those folks who sat down with pen and parchment as mere conduits to his divine purpose.

It's a simple world in which they live, with all questions answered and no need to apply anything we've experienced since the late Bronze Age to the process of exegesis. Just go back and read the original text, and don't give it too much thought.

No wonder we're in such trouble as a country right now. These people are allowed to vote.

Conference call in a few minutes, then a mediation an hour after that. Maybe I'll end up creating a first draft of that exam answer later today.