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Ever since Marvin Olasky quoted SCOTX Justice Nathan Hecht on Harriet Miers’ originalism, I’ve been aware that there are connections between originalism in law and religion. I’ve done a bit of writing on the subject, including a failed unpublished essay and a draft of a chapter in a book that isn’t published either. Unlike the essay, the book is not a failed project; it’s just new and unfinished.
Mark Eckel, and I have agreed to be co-editors. Inshallah, we’ll put together our own chapters, the introduction chapter, and a proposal and get things underway sometime next year with a call for proposals from other possible authors. My finished chapter uncovers an important insight: Originalism in biblical theology is a bit more of an intentionalism, and originalism in American Constitutional law is a textualism, and there’s a reason for that difference.
In other words, originalism in theology looks for the meaning of the Bible in the intentions of the authors of the Bible, and originalism in law looks for the meaning of law to the text of the Constitution, not the intentions of the authors. The reason is simple: The sources of authority are different.
In the case of the Bible, the authority comes from G-d but runs through the minds of the prophets and apostles who gave us the Bible. In the case of the Constitution, the legal authority of the text comes from the sovereign people of the United States.
Where the authority of the text is, there is a clue to the original meaning. For the Bible, the meaning is determined by the authoritative authors. For the Constitution, the authors determine nothing since the text derives its authority entirely from the sovereign people; the meaning is where they can get at it–in the text.
At least, that’s what it looks like to me after studying both originalisms. People have often compared the hermeneutics of those who venerate the Bible with legal originalism. Rarely if ever have they focused on originalism as such, got both originalisms right, and uncovered this insight.
And this shows an important point about the veneration of a text. No originalist has any business venerating the Constitution except as a matter of law. It’s a merely human document; here’s a great article on the subject. As American law, it is supreme, but that’s all. As American law, it cannot err. As political theory, ethics, philosophy, and everything else, it can easily be wrong. We don’t venerate the Constitution because we don’t worship the American people; we can even fix the old thing if we want to, and sometimes we really need to.
The Bible is different. According to Christian theology, the Bible actually is without error, because its authors were divinely inspired. We don’t worship it, but because we worship G-d we are called to honor and obey the text in all matters.
Well, that’s all for now. In the meantime, Eckel’s and my previous work together is cheap on Kindle!