Along the Way: Originalism

by

Perspectives

Once again the concept of Originalism is being heard in the land. It is essentially a legal hermeneutic which says a contemporary law must express the intent of “the founding fathers” around the year 1789. The late Supreme Court justice Antonin Scalia was the most outspoken adherent of that view. In a speech to the Federalist Society he alleged, “there is no way we can know what each other thinks and agrees to besides attributing an objective meaning to words that people state when they write them down.” [1]

I am tempted to dive into his statement and note the “no way we can know….” hyperbole that skews his view from the outset. But that is not the point of this post, so I let it go—but not without pointing it out. My intention is to reveal the flawed methodology of Originalism.

Originalism is part of an interpretive (hermeneutical) process generally known as inductive reasoning or inductive methodology. I taught the method in a seminary course, and I have used it for fifty years. The problem with Originalism is not that it is inductive, but that it is not inductive enough. To explain what I mean, I must provide you with a brief summary of the methodology. [2]

Inductive reasoning employs five steps: observation, interpretation, correlation, evaluation, and application. The first step of observation means paying close attention to the text in order to determine its original meaning. Obviously, Originalism does this. So far, so good. 

The problem is, Originalism stops there. That is, when the “original meaning” is determined, it is transferred to the framing of a contemporary law with the belief that what a law originally meant is what it must mean now. [3] The problem with Originalism is that it does not utilize the other four steps of inductive reasoning. It “freezes” one meaning in time, a past time from long ago, and then seeks to thaw it out in the present moment.

The other four steps of the inductive method intentionally prevent the impositional approach (i.e. “now must be like then”) and keeps the discernment of truth more dynamic. For inductive reasoning to be complete, the other steps must follow observation.

The second step of interpretation moves observation into the realm of viable options, recognizing that between the time something was written and today, other committed and credible people have produced a variety of thoughts on the given subject. Between then and now there has not been silence, there has been sound—and the sound is not “noise,” it is insightful. Views between then and now are not deceptive, they arose from the same kind of devotion we are trying to have now. Interpretation (in biblical theology) keeps alive the idea of progressive revelation. It preserves an evolutionary sense of history.

The third step of correlation adds contemporary interdisciplinary knowledge to the process. We ask, “What are the current disciplines of theology, sociology, psychology, law, biology, medicine, physics, cosmology, etc. telling us?” These too are not judged to be irrelevant or misleading, but rather contributive to the collective wisdom needed to make good decisions today. Correlation means respecting expertise, listening to relevant voices and learning from them.

The fourth step of evaluation means bringing alignment between the first three steps as much as is possible. For example, in biblical study, how do we align the sacrificial system of Leviticus with the teaching of the Book of Hebrews that this system is set aside in the New Covenant?  Evaluation asks, “What is the overarching message?” In the case of this example, it means finding a way in the present to demonstrate our devotion to God. People in Old Testament and New Testament times did it differently, but both were expressing their faith. This does not eliminate either passage per se, rather it brings them together into a workable synthesis for now, offering a way forward for showing our love for God today.[4] Evaluation seeks the Big Story meaning, using it to shape the final step in the process.

The final step is application. This not only means the pragmatic/practical dimensions, but also the universality of the discernment.  In general terms, application asks, “How does this apply to everyone in ways that promote the common good?”—which is the theological and judicial meaning of the word ‘justice.’

I hope this overview of inductive reasoning has been helpful to you in general. It is the means by which we make good decisions in any area of life. I hope it also shows why Originalism is an insufficient legal hermeneutic. It turns out to be (at best) one-fifth of a complete reasoning process. Neither good laws nor good life can come from truncated thinking.

[1] Quoted in Matthew Fox’s Daily Meditations, 10/21/20.

[2] To study the inductive method in detail, I recommend David R. Bauer and Robert A. Traina’s book, ‘Inductive Bible Study’  (Baker Academic, 2011).

[3] Those who use inductive reasoning are the first to admit that determining the “original meaning” is difficult, sometimes impossible, and always partial in the discernment of truth for today. In biblical hermeneutics, this is the fundamentalist approach which, like legal  Originalism, treats the first step of inductive methodology as if it were the whole.

[4] In biblical hermeneutics, Dr. David Thompson has an excellent chapter on the evaluative step in his book, ‘ Bible Study That Works’ (Evangel Publishing, 1994), chapter five, “ Let Jesus Be the Judge.”  This book is a good study of all five steps in the inductive method.

The Rev. Dr. Steve Harper is a retired seminary professor, who taught for 32 years in the disciplines of Spiritual Formation and Wesley Studies. Author and co-author of 31 books and a retired Elder in The Florida Annual Conference of The United Methodist Church, he and his wife Jeannie Waller Harper are frequent leaders of workshops and spiritual retreats. This post is republished with permission from his blog Oboedire.