“Originalism” vs “Activism”, and the Myth of Authenticity

Some lessons on hermeneutics (broadly speaking, the methodology of interpretation of texts, verbal and non-verbal communication) and the conditionality of epistemology (the study and theory of knowledge – its nature, source, limits, and acquisition)

As someone who thinks theologically, and who is a pastor/teacher, I have been tasked throughout my vocation in the vital responsibility of faithful interpretation of sacred text. In that task, the work of the interpreter is to seek at the utmost the ipsissima verba, Latin for “the very words”, which is used to claim the authenticity of the actual words of the speaker/author of sacred text, as opposed to interpretations attributed by others to the text. After the interpreter excavates that information, he/she is then required to examine it in its context – the various elements of culture that shaped the words, the linguistic codes, symbols, myths, and signs embedded in the text. Only then, as this critical method claims, can the interpreter claim the authority of her/his interpretive work.

In this task, the interpreter of the sacred text realizes, as she/he goes into the depths of the text, a most solemn reality – and that is, the humbling realization that the reader herself/himself is also an inhabitant of his/her own milieu, the context of which shapes, conditions, and limits the way the reader receives the text. Then it becomes apparent that every reading of the text is an interpretation. The conditionality of our perspectives is an inevitable and inseparable feature of our finite historicity. The faithful interpreter of the Bible then – if he/she must remain aware of the conditionality of her/his own perspective – is inevitably confronted with the requirement of submitting her/his formulated interpretation to be illumined by the highest arbiter of biblical interpretation – the revealed Word of God in Jesus of Nazareth himself. And so for the Christian interpreter, her/his interpretive work on sacred text must ultimately be illumined by the transcendent reality of the life and teachings of Jesus himself, the one who said, “I did not come to abolish the Law and the Prophets, but I have come to fulfill them (Matthew 5: 17).”

The term, “Originalism” has now emerged in our modern lexicon, especially during Supreme Court nomination hearings as is happening right now in the United States. The nominee, Amy Coney Barrett, today defined for herself what “Originalism” means to her: “That means that I interpret the Constitution as a law… I understand it to have the meaning that it had at the time people ratified it. That meaning doesn’t change over time and it’s not up to me to update it or infuse my policy views into it.” And so the term, “Originalism”, presumes the “highest” valued method of interpreting the Constitution, tacitly asserting that to excavate the “meaning that it had at the time people ratified it” is the superior and most authoritative hermeneutical method for the US Constitution. The term is usually invoked to juxtapose and distinguish it to judicial “Activism”, an alternate judicial philosophy that holds that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. This approach, however, is normally invoked in a pejorative way to refer to judges who base their decisions on their own political agenda and personal ideologies, and not on the ipsissima verba of the author.

And so, if all reading of (sacred) text is an interpretation, the faithful reading and interpretation of the Constitution requires that such interpretations must, in the end, be submitted to a higher – and transcendent – arbiter. When interrogated from this obvious vantage point, both judicial philosophies immediately present evident shortcomings to their claims of superiority. With regards to “Originalism”, how can it be the full measure of Constitutional interpretation when its very authors were slave holders, and assumed that black people were only worth 3/5 of a human being, and that women could not vote nor hold any public office? How did they acquire the knowledge that led them to perceive black people and women in that way? Did their very words – uttered from within their peculiar historical and “original” contexts – presume the cancelled value of black people as full human beings, and the otiose role of women in society? What cultural and political realities of their time conditioned their understanding of society as such? On the other hand, with regards to “Activism”, what are the safeguards of interpretation that can prevent the arbitrary plunder of the Constitution’s meaning by judicial whim, controlled by powerful interests and self-aggrandizing ideological predilections? What is the higher, and transcendent, arbiter of the authoritative interpretation of the US Constitution – be it Originalist or Activist?

It is now almost impossible to imagine the US Constitution without the Bill of Rights. Yet, when the Constitution was first being drafted, the vast majority of the Founding Fathers didn’t think they were necessary. We have them now only because a few good men refused to sign the Constitution if these first 10 Amendments, that were to constitute the Bill of Rights, were not adopted into the Constitution. Many more Amendments followed the Bill of Rights, indicative of the reality that the custodians of the meaning and the words of the Constitution had to, time and again, come to terms with the vicissitudes of life as they unfolded in the republic, and how these emergent historical experiences illumined the ipsissima verba of the authors of the Constitution.

While the US Constitution is the supreme law of the land, and delineates the national frame and structure of the government – the Constitution is not immutable. This is why we have the Supreme Court, and the Judiciary, because the law still requires faithful interpretation. There is no irony, then, when we say that it is the very act of faithful interpretation of the Constitution that serves as the bulwark of its own probity and virtue. It is a living and breathing document in the sense that the subjects that it seeks to guide are living and breathing human beings themselves, whose full flourishing unfold not only in a moment in history, but through the irrepressible march of time within our own finitude.

Epistemology, as the study of the nature of knowledge – its source, acquisition, and limits – has demonstrated that our perspectives are conditioned and, therefore, a priori incomplete and provisional. So if no one, singular, judicial philosophy exhausts and holds the sole propriety of the faithful interpretation of the Constitution, what is then the transcendent arbiter of the US Constitution? If, for the Christian, the life and ministry of Jesus Christ is the transcendent and final arbiter of all the conditioned interpretation of sacred text, what is the transcendent and final arbiter of all interpretations of the US Constitution? Could that arbiter be the aspirational ideal proclaimed in the second paragraph of the Declaration of Independence? To wit:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights , that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed”

And could it be also in the aspirational ideal of the Preamble of the US Constitution itself? To wit:

“We the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

America’s politics is sadly broken right now, and the current nomination process for Supreme Court justices – and all judicial posts writ large – is caught in the cauldron of the brokenness and toxicity of our political climate. Even qualified candidates are caught in the crossfire. Lost in the fog of war is the brighter day that always beckons on the horizon, and becomes attainable when the “consent of the governed” is lived out in the discernment of the people.