ORIGINALISM and ORIGINAL INTENT OF DOCUMENTS
by Walter C. Kaiser

Old topics have a way of recyling and coming back on themselves.  What goes around often comes around.

When Moises Silva and I co-authored our Introduction to Biblical Hermeneutics: The Search for Meaning (now in a revised and expanded second edition, Zondervan, 2007), we carried on a gentle conversation between the two of us within the covers of one and the same book on the question (among others): to what degree is the meaning of Scriptural text (or any other text for that matter) solely dependant on the author's original meaning.  It has been a matter of some satisfaction to see the wide acceptance this volume continues to receive from so many readers who have appreciated our willingness to openly share our agreements and disagreements on this topic (and others).

But this whole topic has received new life once again-- this time from a speech I heard Justice Clarence Thomas give over TV last week on this same question with regard to the Consitution of the United States. He argued for "originalism" and the "authorical intention" supplied by the framers of this document.  In Justice Thomas' question and answer time, which followed his speech, he was asked several questions which are almost exactly of the same kind that Biblical exegetes must face.  For example, he was asked how the Constitution, now almost 250 years old, could help us with modern questions that this ancient document never had to face?  Moreover, what was wrong with activistic judges creating laws precisely where these new situations arose?

Thomas responded by pointing to a recent decision where law enforcement officers were using types of infra-red technology by driving down the street to see who was growing pot or the like in their houses.  He argued that the words of the originating documents, in this case the fourth amendment, supplied the principle that one could not invade one's property without cause.  Therefore, the modern means used in this new technology, was to be rejected, for it violated the principles set forth in the fourth amendment.

Then as I drove to the airport yesterday, a talk program was discussing the full page advertisement that had appeared in the Chicago Tribune and was scheduled to appear again today.  It raised the sticky situation as to what were the views of the founding documents of our country with regard to what constituted being "native born" in the United States and a requirement for the highest office in the land.

What interested me was not the political ramifications of who was or who was not eligible for the office of President of the United States, but the other question as to how we decide such matters of interpretation?

Surely the question of "originalism" and the "founders' original intent" has a much wider implication then is illustrated in this new issue, for it hits on the topic of what we do when we think that in order to answer contemporary questions that are not directly faced in the founding documents we need to go a different route.  Are the principles that are supplied in the Constitution of the USA able to give us the "originating intent" or do we go with the number of precedents or even decisions that are created from the Bench in the mean time?

Justice Thomas was asked what he did when he had a number of precedents that looked in one direction for a legal solution and a Constitution that looked in another direction?  Which would he choose?  He quickly responded, as preachers and teachers of the Scriptures should, "When I took this office, I took an oath that I would defend the Constitution of the United States of America, so I side with the Constitution!" 

How many teachers and preachers of God's word would answer today in the same manner?  There is more than a question of hermeneutics here; it is one of Lordship and obedience to the Gospel.

Walter C. Kaiser Jr. (PhD, Brandeis University) is the Colman M. Mockler distinguished professor emeritus of Old Testament and president emeritus of Gordon-Conwell Theological Seminary in South Hamilton, Massachusetts. He has taught at Wheaton College and at Trinity Evangelical Divinity School.