Originalism Isn't Just about the Constitution

Supreme Court Justice Antonin Scalia attending a Red Mass in 2012.

Antonin Scalia died a week ago, and the repercussions of his passing have only just begun to play out.

Our historically unproductive Senate announced immediately that it but hold true to form on the appointment of any nominee President Obama might put forward: it would refuse to act, preferring instead to leave the seat vacant for over a year, in hopes that the next President will be Republican, and appoint another hardshell conservative.

The President, on the other hand, stated plainly that he will put forward a highly qualified nominee, and he expects the Senate to fulfill its Constitutional duty of advising and casting a vote on that nominee.

Meanwhile, across America there has been a full spectrum of reactions, from sheer delight on the left to cries of conspiracy and even accusations of murder on the right. In the press, legal scholars have weighed in on Scalia's significance from a host of perspectives, and in particular, on his doctrine of "originalism": the interpretation of the Constitution as essentially a dead letter, a document that should only mean what its writers intended it to mean. I'm not a legal scholar, but from what I've heard, it doesn't take one to know that Scalia used this doctrine only when it suited him, using it to hammer against opinions he disliked, while ignoring it when it stood in the way of making George W. Bush President.

But I'm not here to write about Scalia's hypocrisy, or to attempt to interpret his often virulent influence on the recent history of the United States. As I said, I'm not a legal scholar. I've got an amateur, at best, understanding and appreciation of the law, though I do enjoy debating the meaning of the Constitution when it comes to the Bill of Rights.

With that said, I do have a deep appreciation for the principle of originalism, though I come by it from two other disciplines I've studied in far greater depth: musicology and Biblical criticism.

Originalism is in play whenever a classically trained musician begins to interpret a score. That's true whether the musician is a solo pianist or the conductor of a symphony orchestra. Whatever the performer's instrument or ensemble, it is his or her task to play or sing, as nearly as possible, exactly what the composer had in mind. In the case of music composed since the mid-to-late 19th century, the performer is aided by a sophisticated system of notation that conveys every nuance of tempo, articulation, and volume. This doesn't rule out the possibility of individual expression for the performer, but it does mean that any deviation from the composer's intent is made by choice, not accident.

As I intimated above, this system of notation was largely standardized by the late 1800s. Work your way back before that, and the farther you go, the harder it is to decide precisely what the composer intended. This means that performers of early music--music written before the classical era (which began around 1750)--have to also be historians. The farther back one goes, the more the question of original intent is open to interpretation, and debates over that intent can become quite heated. If one is a conductor of a church choir in a progressive denomination, one has the added challenge of deciding whether inclusifying a sexist text is violating the composer's intention.

One might think that this musical originalism has been around for some time, but in fact, it only really emerged in the mid-twentieth century. Prior to that time, performers and conductors took great liberties with classic works of music. I have a fond memory of listening to a 78 rpm album--there were at least a dozen disks--my mother had of Leopold Stokowski conducting Handel's Messiah. I think it was my junior year of college, so I was studying music history at the time. The recording featured a huge orchestra and an enormous chorus, and to my ears, it felt far too rich for the material. What really blew me away was the moment in the "Hallelujah" chorus when a single trumpet plays a descending run of five pitches, a lovely modulation that always makes me sigh. In the Stokowski version, it was an entire trumpet section, sounding as if they were heralding the arrival of the apocalypse.

I'm not always doctrinaire in my approach to great works of music--I've been known to jazz up some Bach or Beethoven just for fun--but by and large, I'm a believer in playing and conducting them as close to the composer's intention as I realistically can.

That also goes for Biblical texts. As a seminarian, I was introduced to the historical-critical method of scriptural interpretation, a scholarly approach that seeks to understand the most likely original setting and meaning of a text before attempting to bring it forward to a contemporary audience. The responsible interpreter had to be a historian, anthropologist, sociologist, and literary critic. It helped enormously to be able to read the text in its original language, but with that, one ought to have an extensive library of commentaries by scholars whose grasp of Greek and Hebrew was far better than one's own. Many of these scholars spent their entire careers studying the text of just a few books of the Bible. One might think that doing so, they could arrive at some kind of definitive understanding of those books, but in fact, competing schools of historical-critical interpretation could be every bit as venomous as competing schools of Constitutional interpretation. At my seminary (Perkins School of Theology at SMU), the resident iconoclast was William Farmer, whose theory of Matthean primacy, while elegantly argued, set him apart from the consensus of most other New Testament scholars. And it makes a difference: one has to read the gospel of Mark very differently if it was a paring down of, rather than source material for, the gospel of Matthew.

This brings me back to Scalia. As with Constitutional Originalism, Biblical Originalism necessitates dispensing with many dearly held beliefs, and if one is not willing to do so consistently, one ought not claim to be a true adherent of the text. For instance, the Bible says next to nothing about an afterlife, a concept traditional Christianity borrowed from Greek mythology. It says very little about marriage as we now understand it. It has only a handful of mentions of anything that approximates homosexuality as we understand it today, and when it condemns it, it does so in the context of condemning many other things that modern humanity has no problem with (eating shellfish, being a sassy teenager, wearing blended fabrics). It both blesses and condemns militarism, preaches both tolerance and anathematization of competing faiths, and declares that faith is the most important path to salvation--no, wait, its works--scratch that, it's faith! How dare you? Faith without works is dead!

And so on. If one is really serious about honoring the original writers of the text, one ought to "preach the controversy." Unfortunately, I rarely see or hear about anyone, from any part of the theological spectrum, doing that. Instead, I see both liberals and conservatives cherry-picking texts that reinforce their own beliefs, often ignoring both the textual context of the verse they're using and its greater, historical context. They're practicing their own version of Scalia's selective originalism: if it backs you up, beat it like a dead horse; if not, pretend it's not even there.

Back in the days when I preached regularly, I liked to think of the Bible as a living document, revealing new truths through the ancient words of its original writers. For fifteen years, that was enough for me. Over time, though, historical-criticism laid the groundwork for my disenchantment with the Christian faith: I knew to much about how the Bible came into existence to go on believing it was God's Word. It's a work of great diversity, profound thought, and at times tremendous beauty, but as the basis for a system of theology, it's far too self-contradictory--not to mention containing plenty of ideas that are simply repugnant. For many years, I clung to an adage several of my professors liked to use--"Sometimes to be true to a text, you have to disagree with it"--but in the end, there were just too many I disagreed with.

I'm going to continue practicing originalism at the piano, with my trumpet, or on the podium. There's much less at stake when I decide to play a Bach prelude a little faster than he probably did in 1720, than if I'm telling people how to vote based on a questionable reading of a Biblical passage. And when I experience the interpretations of others? Well, if their Bach is too fast, their Beethoven not romantic enough, I may roll my eyes a little, but I'll mostly keep that to myself. And if they're holding forth on how the Apostle Paul meant for his condemnation of child rape to be applied to loving relationships between same-gender adults, I will briskly walk the other direction. They're no more eager to hear my understanding of that passage than Scalia was to admit he was wrong about Bush v. Gore, and I've got better things to do than try to argue it out with them.


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