Are you an Originalist or a Contextualist?

The truth will set you free, but not until it is finished with you.

David Foster Wallace

I first learned about different approaches to interpreting the Constitution of the United States rather late in life from a dear friend of mine who is a Harvard Law School graduate and practicing attorney. Differences in theoretical approaches to understanding and, thus applying, judgments to presenting issues is why there can be such a wide range of opinions and decisions from judges on cases. Broadly speaking, there are two general approaches: originalism and contextualism (or “living document”).

Also, for all of my attorney friends and any attorneys who stumble upon this post, please, have grace and patience with me as I surely admit I am no expert on Constitutional Law or its interpretation.

Originalism demands adherence to the historical meaning of the text. What did the writers mean when they wrote it? What meaning did words have when the Constitution was originally written? Supreme Court Judge Antonin Scalia was a famous Constitution originalist.

Contextualism allows courts to interpret the constitution in light of the intent of its words alongside of contemporary issues, enabling them to adapt to changing societal norms. It views the constitution as a living, dynamic document that is able to adapt to society as it changes and develops. It supports the idea that the constitution is flexible and able to address new challenges in society as they arise. Supreme Court Justice Ruth Bader Ginsberg was a famous Constitution contextualist although she also claimed to be an originalist, too: “I count myself as an originalist, too, but in quite a different way…equality was the motivating idea, it is what the Declaration of Independence started with…”

Of course, there are nuances and other approaches. For example, textualism, closely related to originalism, demands adherence to the text. While some, including Judge Amy Cone Barrett understand these two…originalism and textualism…to be the same, others, such as Rutgers professor, Katie R. Eyer, explain that they are two separate approaches, calling for textualism to be thoughtfully used by people on “both sides of the aisle”.

Originalism promises simplicity and objectivity. Black and white answers. Clear cut. The Constitution said it. We read it. We follow it. That settles it. However, even originalists differ in their understanding of what the Constitution actually says.

Madiba Dennie of Lit Hub states: “there is no one objective way to interpret the Constitution. If there were, what would be the point of judges? We could resolve legal disputes by simply inputting our claims and evidence into a computer that would output uniform rulings.”

Contextualism…the constitution as a ”living document”…does not make the same promises of simplicity. It invites…or rather demands… dialogue within a grey space. It requires struggle and wrestling to apply an old document with new times.

Letters from an American Substack author, Heather Cox Richardson, does some of the most exhaustive and helpful work to bringing context to viewing law and what is happening in our country within the broader understanding of history. I highly recommend her daily post.

What strikes me about these two approaches is how similar they are to ways in which the bible is interpreted…and follows the same division among Christians. You have originalists and contextualists in Christianity, too. And, in Judaism, Islam, etc. etc.

Originalism (similar to if not the same as literalism) in biblical interpretation promises simplicity and objectivity. Black and white answers. Clear cut. The Bible says it. I believe it. That settles it.

Of course even originalists disagree on what the bible means in certain places.

Contextualism … the bible as a ”living document”…does not make the same promises. It invites dialogue within a grey space. It demands struggle and wrestling to apply an ancient document with new times.

In the book of Acts, chapter 15 we see such a disagreement on interpretation take place. The book of Acts is the first book in the New Testament of the bible that comes after the “Gospels”…the four books that document the life of Jesus. Acts is the continuation of the story of Jesus’s life on earth. Acts is where we see the first followers of Jesus after His death, resurrection, and His ascension to heaven trying to figure out how to continue the work He started.

Up until that point most followers of Jesus had been Jewish. Jesus Himself was Jewish and followed Jewish customs. If this new community was known as followers of Jesus, wouldn’t this group also be Jewish? If following Jesus meant to be like Him, since He was Jewish, wouldn’t followers be Jewish, too? Wouldn’t this new group follow the scripture?

At that point, remember there is no New Testament. Any reference to “scripture” was a reference to what Christians now call the “Old Testament”. The New Testament would not be formalized for into what we have now for a few hundred years when a group of men took the first writings, letters, etc. and decided which documents would be included in what we now understand to be the New Testament.

So we see in Acts the first time interpretation is being made and it is around the issue of Gentiles (anyone who is not Jewish). Could Gentiles be part of this new group of followers of Jesus? One group said that yes, they could become followers of Jesus…if they first became Jews by following Jewish customs and the law of Moses such as the law that said all men must be circumcised.

This group honestly had a good argument. There was no precedent for Gentiles being part of this group of followers of Jesus. Following the Old Testament was all that they knew. The Old Testament made it crystal clear that Gentiles were not to be mixed within the Jewish community…not through marriage, other partnerships or even sharing a meal. According to their scripture, Gentiles were unclean. It was pretty apparent based on the scripture they had followed for centuries that if Gentiles wanted to be part of anything involving Jews, they must become Jewish.

Originalists (literalists) in Acts 15 argued against Gentiles joining the new group of Jesus followers unless they became Jewish first.

Paul and Barnabas were leaders in the community that had a different opinion on the matter. They believed that this new way of following the teachings of Jesus was for everyone, not just Jews. But they were in the minority. It was mind boggling for these Originalists (interpreting their scripture as it originally was written) to even make this consideration. The scripture says it. We read it. We follow it. That settles it.

Paul and Barnabas tried to reason their way to a new understanding of allowing non-Jews into this group. However, scripture (the Old Testament) was not on their side. The Old Testament was plain on keeping Gentiles OUT. It was common sense.

So, what did Paul and Barnabas do? They started to tell stories. They shared about their experiences with Gentiles as followers of Jesus.

They shared CONTEXT.

And, that’s when everything changed. This was not going to be a religion just for Jews. It was not going to be just another sect of Judaism.

This was going to be something completely different. It had a new context…new stories…new experiences that was informing beliefs and the way forward. There was a new understanding of Truth.

Truth, it seems, has a journey. It meets each generation and invites relationship to it.

Acts 15, with its dialogue between Paul, Barnabas, and the other first Christians, is a model of contextualism…having a relationship with scripture as a living document.

Contextualism demands community involvement, listening, and sharing. It requires comfort with ambiguity and multiple opinions. It invites us to be humble about our own interpretive abilities. To use Christian language from 1 Corinthians 13:12, it makes room for the truth that we all “see through a glass darkly”. Not one of us has the ultimate and absolute understanding of anything.

We are all a work in progress and so is our society. And, so, apparently, is Truth.

Truth, it seems, has a journey. It meets each generation and invites relationship to it.

It is apparent to me how these ideas have significant ramifications for how we understand and approach leadership, relationships, and decision making within American government and within faith communities.

But, what do these ideas mean for us in our own relationships? How do we show up as Originalists and Contextualists in our relationships with others and with ourselves?

When do we demand others and ourselves to stay the same? When do we allow ourselves and others to be newly known and understood?

When do we adhere to originalism and when do we call for contextualism in ways that suit our own journeys?

In what situations do we experience stress that makes certainty and ”black and white answers” feel vital for survival? In what situations do we feel grounded, settled, and open to tolerate the discomfort of the grey and works in progress…both in ourselves and in others?

When do we demand that others think, feel and behave like us…our own certainty of truth based on how we read events…in order to be close to us, to be “good”? When do we allow others to be different and stay close to us? To let others be different and not automatically “bad”?

This conversation could be one more nail in the coffin of “us versus them” in which we are all slowly decaying. I challenge anyone who sees themselves in one camp or the other to recognize your own version of originalism and contextualism found within your life, myself included.

My guess is that no matter what side of the aisle you find yourself on…political or church aisle…you have your own versions of originalism and contextualism. You probably have some places in your life where you lean into…or demand… originalism and some places in which you lean into…or demand…contexualism. Spaces in which you are rigid and certain of what truth is and spaces in which you are open and willing to listen to other understandings…other opinions on what truth might be.

Clearly, my bias towards contextualism is seen here. And? I want to call out younger generations who are championing issues of social justice to see places where your own rigidity about what and how that social justice efforts should look like shows up in dialogue with others. A contexualist movement can quickly become a rigid point of originalism…a “clear cut” interpretation and understanding of a way forward based on a contextual approach.

There are many quotes about truth. A well-worn saying is that the truth hurts sometimes. Another one is that knowing the truth will set your free.

Both of these are…true. There is truth in these quotes on truth.

Wrestling with truth, taking the journey to understand it…absolutely can hurt…it is a challenging and uncomfortable relationship that isn’t always pleasant.

Oscar Wilde said: ”The truth is rarely pure and never simple.”

I tend to agree with David Foster Wallace who said: “The truth will set you free. But not until it is finished with you.”

And, is it ever finished with us?

Postscript: In the readable version of this post on Substack you will find helpful links throughout the transcript of what is heard on the audio podcast version. The podcast and Substack is called Letters from a Therapist.

That’s what I have to say today. I am guessing you have something to say, too. Happy to hear it.

If you enjoyed listening today, please consider subscribing to my Substack and sharing it with someone you think might enjoy it, too. The subscription is free and it would mean so much to me. Thank you!