The recent leak of a draft Supreme Court decision nullifying Roe v. Wade has highlighted both the potency and the rhetoric of Constitutional Originalism, the legal argument that the meaning of the Constitution was fixed when it was written. In this instance, because there was no explicit protection of a woman’s right to privacy written into the Constitution (when originally drafted, or when amended), then the Constitution provides no such protection—and that any claim that it does is only a mistaken interpretation of the meaning of the Constitution. In a comment in the New Yorker, Fabio Bertoni (general counsel to the New Yorker) has described originalism as “a distinctly conservative strain of thinking in constitutional law that was championed and popularized by the late Supreme Court Justice Antonin Scalia.” More fully, Bertoni explains that
Originalists argue that their thinking is uniquely rigorous and coherent. They believe that it is possible, even imperative, to identify the proper meaning and interpretation of the Constitution by adhering strictly to the text and to the intentions of the men who wrote it. Originalists scoff at the notion of a “living Constitution,” a document whose meaning has changed and expanded with time and evolving circumstances. Only softheaded liberals, they say, believe that due process encompasses foggy notions and words unmentioned in the Constitution—words such as “privacy.” If something isn’t specifically articulated in the Constitution, any attempt to find it there is entirely speculative—or, as Justice Scalia put it, “pure applesauce.”Fabio Bertoni: Samuel Alito’s “Amelia Bedelia” Reading of the Constitution
Other members of the Supreme Court, such as Justice Clarence Thomas <link>, also hold this theory regarding the Constitution.
Originalism does accept that the Constitution can be updated, but only by amendment. It is the due process clause of the 14th Amendment that was extended in Roe v Wade to include the right to privacy (and hence the privacy of a woman’s decisions regarding her own body). Alito’s originalism, however, leads him to reference the world of 1868, the year the 14th Amendment was ratified, as determining the meaning of the amendment. Since there was in 1868 no “widely established right to abortion,” then the 14th Amendment cannot be interpreted to mean that there is. Thus although Roe v. Wade has been the law of the land for half a century, Originalism allows reaching back a century and a half to invalidate that decision. In other words, the world prior to the completion of the First Transcontinental Railroad across the US, but more relevantly half a century before all women in the US gained the right to vote (the 19th Amendment, 1920).
In the contemporary terminology of the humanities, perhaps more familiar to readers of this sporadic blog, this conception of the meaning of a text can be identified as privileging authorial intent. A book means what its author intended it to mean, and any other reading is a misreading. Analogously, the Constitution means what its Framers (notice the authority implicit in the capitalization) meant, and any other reading is a misreading.
To make this claim about meaning accords with much of our ordinary daily usage. If I say I want toast and jam, I mean I want toast and jam, and not bread and butter (yes, this is an allusion to an old rock and roll song, but it works in this example). At this more general level, we can refer to Constitutional Originalism as a subset of textual literalism, which while of some utility in simple situations, becomes simplistic in more complex ones. For a document of such age and importance as the Constitution, simplistic literalism rapidly leads to absurdities. One is the familiar argument that the Constitution protects the right to bear arms. Did the Framers, however, mean assault rifles? Obviously not, since they were thinking of (intending) muskets. So, clearly, the extension of the right to bear arms to automatic and semi-automatic rifles is an interpretation, not a literal reading. That it is an interpretation can, however, be cloaked by the claim of literalism.
More generally, any claim of literalism seeks to evade or obscure the reality that all communication necessarily involves interpretation, even something as seemingly simple as what it is I want for breakfast.
Historians of Constitutional law may be able to trace the route from Christian Fundamentalism to Constitutional Originalism. However, even without specifying historical links, the two have such similar logics that it is reasonable to suspect that just such a route exists. And stylistically, Constitutional Originalism appeals to those members of the Supreme Court who are both legally and religiously conservative. In addition to the logics and stylistics involved, the two are similar in what they reject.
The concept of fundamentalism dates from the period following the American Civil War, a period of great religious activity that also saw, for example, the rise of Spiritualism and Theosophy. Two developments in particular seem to have driven the rise of Fundamentalism as a religious movement: Darwinism and Higher Criticism. Reactionary resistance to Darwinian evolutionary theory is still an important part of Fundamentalist religious politics. It is integral to that discourse, supporting both authoritarian understandings of the Bible, and a paranoid stance of victimization. More directly relevant to Constitutional Originalism is the other factor motivating the rise of Fundamentalism: “Higher Criticism.”
Although being traced back to the Biblical criticism of Spinoza, “Higher Criticism” became the category for scholarship that treated the Bible as an historical and constructed document in the mid-18th century, specifically German scholarship of the Tübingen school. That approach considers the Bible to be a plurivocal text originating from particular, contingent times and places, and its meaning is rooted those times and places. Understanding those contexts—social, historical, economic, literary, and linguistic—is necessary for understanding the text. This is the academic logic behind those college courses that teach “Bible as Literature.” A consequence is that the Bible is no longer treated as some set of fixed, timeless truths, or eternally and universally valid ethical mandates—but instead a “living document” that is open to interpretation and application in contemporary situations, which is one way of thinking about the projects of theology.
Though the idea arose earlier, Fundamentalism derives its name from a series of pamphlets published between 1910 and 1915 named “The Fundamentals: A Testimony to the Truth.” One of the central tenets of Fundamentalism is the rejection of Higher Criticism in the form of asserting Biblical inerrancy and, therefore, Biblical literalism—that is, the Bible makes no errors, and a literal reading of the Bible is the only correct reading. Or, as the Fundamentalist slogan that evades critical reflection would have it: “God said it, I believe it, that settles it.”
So, here is the logical parallel between Biblical Fundamentalism and Constitutional Originalism: the only meaning of the text is the literal meaning, fixed when it was written, and any interpretation is a misreading. The Bible is the word of God, the Constitution is the word of the Founders—and note how much authority is vested in the capitalization. Claims of literalism are strategic moves to claim the authority that is (claimed to be) vested in the authors of the texts. It is all about taking power, the power to say what it is that the text means.
(We note in passing that this same kind of strategic positioning regarding texts has a long history in Buddhism, though contemporary versions in Western Buddhisms seem to have taken on some of the same flavor [rasa] of argumentation as Biblical Fundamentalism.)
If we take an additional step back, however, we can ask Why is so much authority and power vested in a text? It would seem clear, at least to me and I hope by now to you too, that it is solely because we collectively agree to give that text authority, and reference it in shared decision making. We do not, however, have to allow those who claim power over the book to use it as a bludgeon to impose their will, their idiosyncratic views, their authoritarian political and social agendas on the rest of us.