Rev. Dr. Debora Jackson
November 9, 2020
Imagine an appointment with your doctor where you complained of a severe sore throat with inflammation so pronounced that you were experiencing shortness of breath. What treatment options might you expect? Perhaps the doctor might order a throat culture to determine whether your infection was bacterial or viral in nature. Maybe the doctor would direct you to take an analgesic for pain relief. Maybe antibiotics might be prescribed. Perhaps, if your condition was the result of the flu, you might be prescribed an antiviral treatment. Any of these options could be expected.
But what if your doctor, believing in humoral therapeutic treatment, indicated that bloodletting was the appropriate course? Moreover, what if your doctor, wanting to restore the fluid balance of your body, additionally prescribed enemas, and medications that induced vomiting and throat blistering so that the deadly humors causing inflammation would be relieved?
Hopefully, if your doctor prescribed such courses of action, you would run screaming from the office. Granted, these were the treatments prescribed for George Washington, but who would expect that treatment options used in 1799 would be indicated today? After all, we have come a long way in medical advancements from the theories of humoralism, which believed the body to contain four types of fluids or humors: black bile, yellow bile, phlegm, and blood. Besides, George Washington died! To be fair, scholars continue to argue over Washington’s cause of death, but the bloodletting of nearly 80 ounces of blood over a twelve-hour period could not have helped.
So, if it is outrageous to practice medicine using the advances of 1799, why is it acceptable to interpret the U.S. Constitution from the perspective of 1787? This is the interpretation of originalism, with the belief that constitutional texts should be given the original meaning that it would have had at the time it became law. We have heard much about this philosophy in the judicial hearings of Judge (now Justice) Amy Coney Barrett. In definition of the term “Originalist,” Barrett stated in her hearing, “In English that means that I interpret the Constitution as a law, and that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time and it’s not up to me to update it or infuse my own policy views into it.” While I respect Barrett’s interpretation, there are issues.
The 1787 U.S. Constitution provided a framework, penned to help us form a more perfect union. But even the framers recognized that we had not arrived at perfection. It was aspirational. The continued evolution, which has helped the document realize greater inclusivity, has helped us move closer to that ideal. I would hope that we would continue to allow our constitutional framework to expand until we reach that perfect union where all people are recognized as created equal.
In 1787, my forebears were not considered human beings, at least not fully. The three-fifths compromise, ratified in the 1787 Constitution, counted three of every five enslaved people as humans for the exigency of providing greater congressional representation to Southern states. Granted, the Thirteenth Amendment, which banned slavery, and the Fourteenth Amendment, which explicitly repealed the compromise, have superseded the original text. However, I would argue that the disenfranchisement of blacks and Native Americans that was part of the founding documents has been baked into our societal fabric and originalism seemingly codifies the acceptable continuation of discriminatory practices.
The same issue is true for women. Women were equally disenfranchised in 1787 because of the practice of coverture. Coverture was a legal doctrine through which a woman’s rights and identity were subsumed by those of her husband’s. Married women could not own property. They could not sign legal documents. Abigail Adams was said to have written her husband in 1776 encouraging him to “Remember the ladies” as he worked to frame a new constitution. His response: “We know better than repeal our Masculine systems.” That masculine system remains in place and originalism helps to secure it.
So how then should one interpret the law? There must be a frame of reference, some source that provides grounding, and the Constitution does provide that. However, as preachers, we engage in hermeneutics as we source Biblical texts. It is that practice of plumbing the depths of Scripture to understand the situational context, word meanings, and historical setting. It is our responsibility to glean from the Word its essence and discern the leading of the Holy Spirit so that we might correctly understand the interpretation and application for our lives today. We study as workers who show ourselves approved by rightly dividing the word of truth (2 Timothy 2:15). And when we do that work, I believe that we must conclude, for example, that Paul was not commending slavery (Ephesians 6:5) nor was he advocating the silencing of women (1 Corinthians 14:34). Even if so, few would argue that these dictates should be enforced today. Therefore, rather than continue outmoded practices, it would be our intent to understand how these texts might apply in our current context. From this perspective we might realize greater accountability to one another and peace in our assemblies, contemporary applications of these Pauline texts.
It is this type of hermeneutic that I believe is applicable to constitutional interpretation. The 1787 document provided a framework, penned to help us form a more perfect union. But even the framers recognized that we had not arrived at perfection. It was aspirational. The continued evolution, which has helped the document realize greater inclusivity, has helped us move closer to that ideal. It is this kind of living, hermeneutical interpretation of our Constitution that enables us “to insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” I would hope that we would continue to allow our constitutional framework to expand until we reach that perfect union where all people are recognized as created equal.
The Rev. Dr. Debora Jackson is the Director of Operations for All Girls Allowed, a faith-based, non-profit that restores life, value, and dignity by empowering and educating women and girls and engaging outreach partners for global impact. She was previously the Director of Lifelong Learning at Yale Divinity School. Her book “Meant for Good: Fundamentals in Womanist Leadership,” is available through Judson Press.