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Originalism’s Original Sin

Even though the Biden administration is unlikely to nominate a staunch originalist to the Supreme Court, the legal philosophy prominently associated with the late Antonin Scalia isn’t going anywhere. The court is already packed with jurists who have expressed support for this doctrine. Opinions from Trump appointees in particular will be combed for consistency — hypothetical hypocrisies hyped and anachronisms analyzed — by critics who will dwell on any deviation from what they see as originalist orthodoxy.

If the buffet of historicist hot takes that emerged during the hasty pre-election confirmation of Amy Coney Barrett is any indication, many of these commentaries will do worse than merely miss the point. Their caricatures of originalism reinforce the perception that liberal critics of the courts are not just opposed to a theory of judicial interpretation but act in (literal) bad faith. Despite the secular language that its advocates sometimes use, originalism is a religious theory — its origins are not just political but also theological. As such, to understand American jurisprudence, we must expand teaching and research in religious studies and integrate that work across other fields of academic inquiry. This would be especially salutary now, as departments of religious studies find themselves on the chopping block in the post-Covid-19 university.

While there was some interest in the influence of Barrett’s religious views on specific issues like capital punishment and abortion, it largely passed unremarked that the originalism she defends only makes sense in light of a particular American religious history. Originalism combines a Christian nationalist view of the United States’ founding as a prophetic and holy act with notions of the inerrant truth of divinely inspired texts that have evolved over the past century. To its practitioners and supporters, it encodes a religious vision of America that has come to the fore in other areas of politics and law. In short, originalism isn’t “dumb”; it’s theocratic.

Put another way, originalism is a kind of textual literalism, analogous to, and influenced by, biblical literalism. Its reading practices looks remarkably similar to the ways that biblical inerrantists discuss Scripture in light of moral objections or new scientific discoveries. The question for courts and legislators has always been whether there are extrinsic truths that can be used to judge the Constitution — a higher moral law or newly understood facts about social or natural science that can justify corrections or reinterpretations. The originalist position is unique in how it considers these questions, how it resolves apparent conflicts or contradictions within the text, and how it extends the text to circumstances not explicitly anticipated.

Is the Constitution more like Leviticus, or is it instead like Euclid’s Elements — a canonical but not infallible text that can be checked against other kinds of authority? When we look at the Constitution as a human production — written and ratified, no less, by people who enslaved others — we should have no difficulty imagining that the country’s founding documents might be morally imperfect.

But in recent years, we have witnessed the popularization of a theological movement that envisions the founders as preternaturally wise — as, in effect, receiving a prophetic text from an inspired source. This view, that the Constitution is a God-given document, is a central tenet of an American vision of Christian Reconstructionism. It extends an idea expressed by one of its founders, Rousas John Rushdoony, that “in any culture the source of law is the god of that society.” In the United States’ political context, this viewpoint reads not just the religious motivations of people, but divine forces at work in the creation of the American Republic. (It also suggests a divinely ordained role for the United States in world affairs.)

Read entire article at Chronicle of Higher Education