Biblical literalism and constitutional originalism.

• Author: Smith, Peter J.

Critics of constitutional originalism have often described originalists as "fundamentalists" or "literalists" as a way of discrediting originalism. This comparison has obvious rhetorical force because it tends implicitly to taint originalism with guilt by association, given views in the academy of Protestant fundamentalism. But originalism's critics are not the only ones who appear to have noticed the similarities between the two interpretive approaches; when they have entered the arena of policy and judicial politics, proponents of biblical literalism have generally embraced originalism as the correct approach to constitutional interpretation.

It is not surprising that both critics of constitutional originalism and proponents of biblical literalism have noted a connection between the two interpretive approaches, as there are some obvious similarities. Indeed, the similarities go beyond the caricatures that both critics and proponents have tended to offer. Literalism and originalism share a core commitment to the idea that their relevant texts have a timeless, fixed meaning that is readily ascertainable. In addition, both interpretive approaches are in significant part projects of restoration; both are deeply concerned about the loss of constraint that results from interpretation that is untethered to text; both have a strong, self-consciously populist impulse and an equally strong and self-conscious disdain for elite opinion, with respect to both interpretive norms and cultural values; and both maintain that all other approaches to their relevant texts are fundamentally illegitimate because they breach a duty of fidelity.

Yet if we are to understand the force of the critics' comparison and, more important, the continuing attraction of originalism to conservative Protestants, we need not only a more nuanced appreciation of the similarities between the two approaches but also a better understanding of the differences. And, indeed, both critics of originalism and literalists who urge originalism as an approach to constitutional interpretation have failed to identify the fundamental differences between the two approaches. For literalism, interpretation is an act of faith in a God who is just and good. Accordingly, for the literalist, obedience to the biblical text--the word of God--is the highest human good. Originalism, in contrast, demands loyalty to the text regardless of its moral quality; just or good results are accidental rather than necessary features of originalist interpretation.

Originalism's critics have been perhaps too quick to assign to originalists assumptions that, even to literalists, are unique to the project of biblical interpretation. More important, literalists who have been attracted to originalism-including those whose attraction is instrumental--might want to take a closer look at the approach and its positivistic character before giving an unqualified endorsement to a theory that could just as well produce results anathema to their most deeply held (and biblically ordained) beliefs.

INTRODUCTION

Many conservative Protestants contend that every word of the Bible must be taken literally. These biblical literalists accordingly pay close attention to the Bible's text, which, they believe, carries a meaning that is fixed, ascertainable, and timeless. Constitutional originalists contend that the Constitution's text is central to proper interpretation and that the meaning of the text is fixed, ascertainable, and, because it can answer questions that arise in the modern world, timeless. Given the obvious similarities between these two interpretive approaches, it is perhaps not surprising that Cass Sunstein, Morton Horwitz, and others have pejoratively used the label "fundamentalists" to describe originalists. (1) For similar reasons, it is not surprising that prominent conservative Protestant fundamentalists have praised originalism as the proper approach to constitutional interpretation in the course of criticizing the Supreme Court's nonoriginalist decisionmaking. (2)

There plainly are important similarities between biblical literalism and constitutional originalism. The similarities extend beyond the obvious shared presuppositions that the relevant texts have a timeless, fixed meaning that is readily ascertainable. The modern movements to which literalism and originalism are central both arose in large part as reactions to competing approaches, and both movements are in significant part projects of restoration--of both the proper approach to interpretation and a particular set of values that have been under siege. Literalists and originalists alike contend that the text itself is available to control those who claim to be authoritative interpreters, and they are deeply concerned about the loss of constraint that results from interpretation that is untethered to text. Literalists and originalists share a strong, serf-consciously populist impulse--based on the idea that the text is accessible to anyone who reads it--and an equally strong and self-conscious disdain for elite opinion, both with respect to interpretive norms and cultural values. Literalists and originalists defend their approaches with an air of absolute certainty about their approaches' legitimacy and correctness. And literalists and originalists contend that all other approaches are fundamentally illegitimate because they breach an obligation of fidelity.

But there are also very important differences between the two approaches. Central to biblical literalism is the claim that the Bible is both constitutive and representational--that is, that it both creates and describes the natural world--and that its authority arises from its unique status as the word of God. Accordingly, for the literalist, the duty of fidelity to the text of the Bible--to every passage and every statement, not only about doctrine or conduct, but also about history and natural science--arises from the fact that, as the word of God, it is both inerrantly truthful and inherently good. Originalism, in contrast, is a paradigmatic form of legal positivism. For the originalist, the legal duty to submit to the text has nothing to do with the Constitution's "truth" (a nonsensical concept as applied to that document) or "goodness." The legal duty, instead, arises solely from the character of the document as an authoritative legal text. But to the originalist, the question whether the Constitution is (or should be treated as) authoritative is conceptually separate from the question whether originalism is the correct interpretive methodology for authoritative legal texts. Indeed, the originalist judge's legal obligation is one of fidelity to the judgments embodied in the Constitution's text even if they are, in some broader sense, immoral judgments.

In short, both the critics of originalism who have sought to condemn it by comparing it to literalism and the literalists who have praised originalism as the natural and correct way to interpret the Constitution have perhaps focused too much on the similarities between the two approaches and neglected the important differences between them. We seek here to offer a more systematic comparison between biblical literalism and constitutional originalism. In so doing, we hope to illustrate both the force and limits of the comparison. (3) We also hope that the comparison will serve as a starting point for a discussion about the ways in which biblical literalism and constitutional originalism interact in a broader cultural narrative. Although we do not offer a comprehensive, sociological account of the respective appeals of literalism and originalism and although we cannot yet ground our intuitions in empirical data, we suggest several reasons why originalism holds great appeal, at least superficially, for those who accept the tenets of biblical literalism in their religious commitments. To be sure, we suspect that part of the reason that literalists are attracted to originalism is simply that they perceive originalism as more likely to produce substantive results--such as the validation of laws banning abortion and same-sex marriage--with which they agree. But there is also reason to believe that originalism has won biblical literalists as adherents to its political and cultural agenda precisely because of the familiarity of its interpretive approach.

Yet a person with a deep understanding of biblical literalism's presuppositions could readily conclude that, because the Constitution (like every other human document) is so obviously different in important ways from the Bible, interpretive approaches to the Bible are not easily generalized. Indeed, literalism and originalism are different in such fundamental ways that literalists should be more skeptical of originalism than they generally seem to be. Originalism's general commitment to legal positivism--and its specific commitment to the idea that judges should enforce the text of the Constitution even if the judges believe that the judgments embedded in the text are not normatively good or desirable--is in stark tension with literalism's commitment to biblically defined "absolute standards of law and justice." (4) Whereas originalism requires the interpreter to enforce specific provisions of the text without regard to the interpreter's personal moral judgments about the text, literalism is based on the premise that the interpreter has an obligation to apply the text because of its inherent truth and goodness, as the word of God.

It would, of course, be a Herculean task comprehensively to compare constitutional interpretation to biblical interpretation. Any such project would require not only deep knowledge of two fields that are themselves immense (and filled with multiple, competing interpretive approaches), but also attention to the many similarities and differences more generally between the Bible and the Constitution and their roles in their respective...