GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2011

Status

Accepted

Abstract

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, both with respect to 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 amoral 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.

GW Paper Series

GWU Legal Studies Research Paper No. 502

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