This is a bit off topic, but I wanted to say something about it anyway. I just picked up this article, Mitchell N. Berman, Originalism Is Bunk, 84 N.Y.U. L. REV. 1 (2009), that I think is quite good on interpretation. There is first summary here and then the article itself here.
The debate over the scope and approach to interpretation echoes my view of Biblical interpretation (it's all about the text and interpretation, hardly a radical insight). How do you determine originalism -- a feat that for much of the Hebrew Bible is nigh impossible, and very difficult for the Christian Bible and, as I understand it, the Koran? Jim Kugel makes the point that, well, at least for much of the Hebrew Bible, we really can't know what the author of the ancient cryptic text meant; the relevant intent is not the original author(s) but the intent -- or interpretation -- of the community when the text was adopted as canonical. (You can listen to a variation on that theme in Kugel's talk, Can the Torah Make It's Peace with Modern Biblical Scholarship, at JTS here which I highly recommend.) In the case of the Hebrew Bible, the canonization process took a couple of hundred years a couple of thousand years ago, but long after much of the text was written. By that time, the community had interpreted the text in ways that were far from the original author(s) intention. Song of Songs - Song of Solomon in the Christian Bible -- is Kugel's classic proof text where a love, even bawdy, text about very human lovers was re-imagined a text of love between God and humanity. There are many other less dramatic examples. A similar process happened with the Christian Bible; I don't know enough about the Koran, but I do understand that all of these canonical texts can be interpreted in a bad way or a good way and it is up to the community to take the high road. See Robert Wright, The Evolution of God (2009), The process of interpretation that takes the high road permits a progressive re-imagination of the text for the needs of the ongoing community. The community cannot and should not be wed irrevocably to any original intention either of the authors or the community at canonization even when that can be discerned, but should be controlled by the needs of the ongoing community. After all, we have long since reinterpreted and essentially re-written the proscription of eye for an eye. And that process continues as we rethink attitudes in the ancient text that are no longer relevant to and, in some sense, destructive to the ongoing moral imagination of the community. I guess all of this to say is that it is all about interpretation which must interpret any text to meet the needs of the ongoing community, guided but not controlled by the original intent of whatever referrant point you want. I think that is Professor Berman's point, although he states it and develops it far more elegantly than I do.
Friday, November 20, 2009
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Professor,
ReplyDeleteThanks for the interesting and provocative post.
Berman's conclusion is based on the faulty premise that originalists "contend that judges owe fidelity to original meaning (or intent, or the like) to the exclusion of all other considerations."
What originalists do believe, however, is that when the original intent is reasonably clear, we should refrain from interpreting a constitutional provision in a way that conflicts with that intent.
Isn't this statutory construction 101?
Isn't the problem that "interpreting a constitutional provision in a way that conflicts with that intent" comes in shades of gray rather than the posited either / or. And still, in any any event, the question is whether text has a "spirit" that can inform how we interpret the text today. Did Thomas Jefferson really mean that all men are created equal? Did he intend to include women and slaves? Is that even a relevant question? Aren't the words bigger than his intention? I think the critical mass of thinking Americans today believe women and slaves (or their economic and cultural equivalent in today's world) are included and that the words can be interpreted far beyond what Thomas Jefferson may or may not have intended when he penned them. Indeed, the written word should not be limited by limited imagination of a mere man that may have penned those words, but should be subject to interpretation and expansion by the moral imagination of the ongoing community. That is the way any words -- whether Bible, Constitution or legislation -- have continuing meaning.
ReplyDeleteIn writing this, I was reminded for some reason (perhaps a digression) of the following Dietrich Bonhoeffer quote in his Christmas 1942 letter:
There remains an experience of incomparable value. We have for once learned to see the great events of world history from below, from the perspective of the outcast, the suspects, the maltreated, the powerless, the oppressed, the reviled — in short, from the perspective of those who suffer. The important thing is that neither bitterness nor envy should have gnawed at the heart during this time, that we should have come to look with new eyes at matters great and small, sorrow and joy, strength and weakness, that our perception of generosity, humanity, justice, and mercy should have become clearer, freer, less corruptible. We have to learn that personal suffering is a more effective key, a more rewarding principle for exploring the world in thought and action than personal good fortune.
Jack Townsend