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Originalism- A Fool's Errand?

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As a young student, I can remember sparring with fellow Hebrew school students and even an occasional teacher regarding the literal interpretation of the Old Testament. "There are simply too many obvious contradictions to take everything literally," I pleaded. I tried to tell them that no matter how stunningly enlightened many of the ideas were, especially for their time, that there were also many almost infantile concepts authored and edited by relatively primitive thinkers. The same G-d that administers justice and mercy is supposed to have murdered thousands of innocent Egyptian firstborns with a terrible plague, not to mention the millions of innocent creatures killed years earlier in the terrible flood. He is reportedly ready to kill all of the Israelites because some of them commissioned the erection of the golden calf. However, thanks to his mediator, Moses, G-d supposedly agrees to execute only a few thousand instead.

Then there are three of the most misunderstood concepts in the entire Bible, that of the death penalty for murder, the "cities of refuge," and "an eye for an eye, a tooth for a tooth..." It seems useless to argue that the Old Testament was in favor of the death penalty because it says that a murderer must be executed if found guilty in a court of law, especially the way that the Sanhedrin interpreted the next "paragraph" making it almost impossible to legally execute any murderer! In practice, Rabbinic authorities required 2-3 witnesses who had to be aware of the other witness(es) at the time of the crime and the perpetrator had to even be warned in advance not to commit the act! To further dissuade, not only murder, but bearing false witneess, the witnesses themselves were required to carry out the execution, usually by stoning (note the added significance of Jesus' saying "let he that has no sin cast the first stone"). As for the "Cities of Refuge," they were prisons, advertised as places where unintentional perpetrators of homicide or convicted murderers who did not receive the death penalty were to live, essentially for life, to protect them from avenging family members of the deceased. The concept of "an eye for an eye" was never taken literally, but was implemented to try to fit the punishment to the crime, avoiding revenge killing by a victim's family for a lesser offense.

Two issues here are paramount. The first is that without an overview of the entire Old Testament and instead employing selective verses from the text, it is impossible to understand the intent of the many contributors to the work. Human beings with different points of view took centuries to collate the manuscripts, no doubt compromising on language and the evolving requirements of the time. In fact, the whole concept of the "Oral Law" or the mode of discussing and interpreting the written law was already harshly rejected by many ultraconservative Jewish groups well before the time of Jesus. The second issue is that without the oral tradition, the Old Testament would have become more and more irrelevant over time. Somehow the best and most useful principles have survived, while most of the irrelevant ones seem to have faded, for the most part, into the background of myths and parables. The reason this process is still ongoing and will need to continue to do so is because of the plethora of contradictions still to be found in the documents.

Unfortunately, there are many people of all religions who assume that their literature was, somehow, actually written by G-d, or directly through his agents, be it Moses, Muhammed or Jesus' apostles. No offense, but if G-d had written it, or even if he had directly communicated the information to the authors, why do they all have so many contradictions and compromises? Why do many of the stories in the Old and New Testaments as well as the Koran seem to border on the ridiculous? G-d shouldn't be murdering people out of pride and jealousy or revenge. When Paul prays that anyone being circumcised should accidentally cut off his penis, is he talking about Jesus who proudly admitted to observing all of the Jewish laws including being circumcised? (Galatians 5:12, Matthew 5:17-20). I believe that may qualify as a contradiction. Then there is the story of someone named "Jesus, Son of the Father," (the literal meaning of "Bar Abbas") a "brigand" accompanied on the execution block by his apparent "twin," "Jesus, the Son of the Father," (a common name for "Jesus Christ"). Are there two Jesus Christs on the execution block? Did the Romans need Judas because he was the only one who could tell them apart????? Did Pilate let one twin go and execute the other or let them both go as suggested by some Muslims or were the "twins" really one person that the so called "angry mob," obviously ardent followers of Jesus, begged Pilate to let go only to see him sacrificed instead? Or, is it a bigoted antisemitic fairy tale version of one of the most important events in history?

These are examples of only a few of the contradictions and compromises to be found in the "Bible." I bring this up reluctantly because try as I may, I cannot find a single U.S. Constitutional "originalist" who is not also some sort of religious originalist, that is also refusing to see the contradictions and human frailties inherent in any document composed by human beings, even human beings who are "divinely" inspired. I personally feel that our founding fathers were far more "divinely" inspired than were the authors of either the Old or New Testaments. However, not only did they have many differing views, but they also suffered from biases of their time that they damned well knew would have to be resolved in coming generations by amendment of the Constitution and hopefully without political and religious prejudice.

I'm sorry, really sorry that just about every "originalist" that I find seems to be a legal scholar with some really admirable qualifications. I mean, our founding fathers were basically in favor of freedom of speech, but against voting, not just for women, slaves, Native Americans and non-land owners, but for virtually everyone. They did not trust even their artificially limited electorate to choose a president, but instead reluctantly permitted them to elect an even smaller college of "electors" to choose the man they wanted for the job..

Now, initially, I did not mean for this article to be an indictment of the concept of an electoral college, an indictment that I have withheld as long as possible. However, it has become impossible to ignore the fact that despite the founders' legitimate reason for adopting the electoral college, that of continuing to pay attention to the needs of the more sparsely populated states, at the present pace, at some point, the difference between the popular vote and the electoral college vote will become so huge that we will be legitimately accused of having government by "minority rule" in its most pejorative sense! Worse yet, even with massive voter suppression, even with the acceleration of the already ongoing Republican plan to destroy the U.S. Postal Service in an effort to discount legitimate votes, in each presidential election the Republicans will continue to lose the popular vote by more and more millions of votes. This should become increasingly obvious as so many more people register as Democrats than Republicans and a shrinking political party is reduced to maintaining power, not only by gerrymandering and voter suppression but by stacking of the Supreme Court with folks who are forced to call themselves "originalists" to justify so many of their questionable political and religious decisions.

At some point, the originalist interpretation of our Constitution by supposedly impartial justices of any stripe will be exposed for what it really is- feigned stupidity by individuals who are clearly not stupid. Worse yet, if a majority of the Court goes out of its way to protect President Trump from indictment and does not allow prosecution of his administration for various atrocities besides the illicit interference with the postal service and voting suppression, we may be looking at a much more dire situation than imagined in the event of a Trump contested loss. Considering the President's irrational reaction to peaceful demonstrations and his penchant for ignoring the difference between peaceful and violent protests, if artificially delayed and therefore disqualified absentee ballots and widespread voter suppression are seen as the main reason for his "victory," the ensuing turmoil could legitimately disrupt the functioning of both state and federal governments. I am not exaggerating when I say that eventually, in a second Trump administration, the only thing standing in the way of a police state may end up being an exposed "originalist" supreme court!

Al Finkelstein, 10/27/20

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Dr. Allen Finkelstein, writing since 2006 under the penname “O’finky,” was born in New York, where he attended the Hebrew Academy of Nassau County as a boy. He continued his religious training in South Florida until his family, (more...)

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