Originalism is not Original

I have never wanted to go to law school or to become a lawyer, though interestingly enough, at least for me, as a scholar of both the Holocaust/Shoah and historical and contemporary genocides, I find myself addressing so-called “legal questions” in both.

For example, can one fully understand the Nazis holding the reins of power in Germany after Hitler’s elevation to the Chancellorship (30 January 1933) without recourse, two years later, to examining the Nuremberg Laws (Nürnberger Gesetze) of 1935:  “Law for the Protection of German Blood and Honor” and the “Reich Citizenship Law”, both of which facilitated removing Jews from their interaction with non-Jewish German (Aryan) society, and escalating their vulnerability leading to disastrous results not only in Germany itself but in those countries and nation-states which came under Nazi hegemony.  Can one fully understand either historical or contemporary genocides without taking into consideration the 1948 “United Nations Convention on the Prevention and Punishment of the Crime of Genocide”—the more-easily named and remembered “Genocide Convention”— without also studying the work of Polish-Jewish-American lawyer Raphael Lemkin (1900-1959), its original conceiver and drafter, and the reluctance of the United States to ratify it until 1988.

For us as American citizens, ultimately subject to the legal decisions of the United States Supreme Court, constitutional originalism and the synonymous terms, in the minds of some, perhaps, if not many. which have arisen in its wake—living constitutionalism, framework originalism, strict constructionism, original intent theory, original meaning theory, “old” originalism, “new” originalism”, intentionalism, semantic originalism—is an interpretive understanding that challenges to the Constitution must first be interpretated based on the original understanding at the time of its adoption (i.e., what its framers had in mind in both its writing and its adoption on 21 June 1788).  Ironically, its own Amendments would, however, seem to indicate that, whatever fixity was and is attached to it, its now twenty-seven ratified amendments into law expand its own incompleteness then and now. The most well-known advocate of originalism was the late Associate Justice Antonin Scalia (1936-2016).

Lest we think contemporarily that this is a relative new idea framed by a conservative political advocacy, we would be wrong.  For those whom we would label “biblical literalists”—both fundamentalist Christians and Orthodox Jews—Deuteronomy 13:1 has undergirded their own approaches to their own religions’ traditions: “All this word which I command you, that shall you observe to do, you shall not add thereto, nor diminish from it” (emphasis added). For both communities, this text—coming from God as many believe and despite the rich histories of the commentarial traditions—remains fixed, and thus the prescriptions and proscriptions which flow from that literalist reading—even in translation—fixes the boundaries for what is acceptable and permissible and what is not.

For such Christians, Revelation 22:18-19 seals the deal: “I warn everyone who hears the words of the prophecy of this scroll:  If anyone adds anything to them, God will add to that person the plagues described in this scroll.  And if anyone takes words away from this scroll of prophecy, God will take away from that person any share in the tree of life and in the Holy City, which are described in this scroll”.

For such Jews, Deuteronomy 17:10-11 performs the same function: “You must act according to the decisions they give you at the place the Lord will choose.  Be careful to do everything they instruct you to do. Act according to whatever they teach you and the decisions they give you. Do not turn aside from what they tell you, to the right or to the left”.

Leaving aside the problematics of translation and the different and differing understandings of these texts down through the centuries and generations and the scholars and non-scholars who examined them and made use of them for both positive and negative agendas, both these constitutional and religious perspectives accord to history and those who lived then an authority which has all-too-often closed doors to changing historical, cultural, political, economic, and religious circumstances.  The current US debates over abortion (not explicitly identified in the Constitution but not centrally addressed in the OT/HB) and the various expressions of human sexuality and marital relationships (equally not centrally addressed but certainly within the OT/HB) and the ongoing Middle East tensions vis-à-vis the Jewish claims to the Land of Israel, the plight of the Palestinians, and the violent conflicts which have resulted, all draw upon a certain biblical literalism to stake their claims to what is true and authoritative today.  An historical text—Old Testament/Hebrew Bible/Torah—made foundational today.

Both understandings, are ultimately flawed, intellectually and religiously.  Were we consistent today, American slavery would still be a valid form of economic undertaking and stoning adulterers would be performed by communities.

The late Rabbi Dr. Solomon Freehof (1892-1990) of Temple Sinai, Pittsburgh, PA, an iconic doyen of the liberal and progressive Reform Jewish Movement, but, equally, a scholar grounded in the historical post-biblical rabbinic commentarial literature known as Responsa (questions and answers directed to leading rabbis about both Jewish practice and religious and theological ideas) expressed it best: “The past shall have a vote not a veto”.  (This same idea is also attributed to Rabbi Mordecai Menahem Kaplan [1881-1983], founder of the primarily American Reconstructionist Judaism.) Originalists—whether constitutional and/or religious—his/their and others’ responses fly in the face of that understanding and affirms the changing realities of the human community and condition from then until now.