Originalism — trying to follow the intent of the writers of the Constitution — is a risky business. So is basing one’s ethics on the bible. Why? Because you may end up looking like Mr. Taney or Mr. Dew.
The Supreme Court’s 1857 Dred Scott decision declared that black Americans, even free ones, could not be citizens of the United States and were not entitled to rights. The majority opinion, written by Chief Justice Roger B. Taney, stated that blacks
are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time  considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them. It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted…
[Blacks] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the Negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race.
The Declaration is mentioned often as well:
“We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them is [sic] life, liberty, and the pursuit of happiness…”
The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute that the enslaved African race were not intended to be included…
Clearly, basing one’s beliefs and policy positions on older documents from barbaric times is a fine way to continue the barbarism. This is true whether or not you judge originalism to be the proper method of legal interpretation. In the context of American slavery, the same continuation occurred with the bible. In the antebellum era Thomas R. Dew, president of the College of William and Mary, denied
most positively that there is anything in the Old or New Testament which would go to show that slavery, when once introduced, ought at all events to be abrogated, or that the master commits any offense in holding slaves. The children of Israel themselves were slaveholders and were not condemned for it. All the patriarchs themselves were slaveholders; Abraham had more than three hundred, Isaac had a “great store” of them; and even the patient and meek Job himself had “a very great household.” When the children of Israel conquered the land of Canaan, they made one whole tribe “hewers of wood and drawers of water,” and they were at that very time under the special guidance of Jehovah; they were permitted expressly to purchase slaves of the heathen and keep them as an inheritance for their posterity; and even the children of Israel might be enslaved for six years.
When we turn to the New Testament, we find not one single passage at all calculated to disturb the conscience of an honest slaveholder. No one can read it without seeing and admiring that the meek and humble Saviour of the world in no instance meddled with the established institutions of mankind; he came to save a fallen world, and not to excite the black passions of man and array them in deadly hostility against each other. From no one did he turn away; his plan was offered alike to all—to the monarch and the subject, the rich and the poor, the master and the slave. He was born in the Roman world, a world in which the most galling slavery existed, a thousand times more cruel than the slavery in our own country; and yet he nowhere encourages insurrection, he nowhere fosters discontent; but exhorts always to implicit obedience and fidelity.
What a rebuke does the practice of the Redeemer of mankind imply upon the conduct of some of his nominal disciples of the day, who seek to destroy the contentment of the slave, to rouse their most deadly passions, to break up the deep foundations of society, and to lead on to a night of darkness and confusion! “Let every man,” (says Paul) “abide in the same calling wherein he is called. Art thou called being a servant? Care not for it; but if thou mayest be made free, use it rather” (I Corinth. vii. 20, 21)… Servants are even commanded in Scripture to be faithful and obedient to unkind masters. “Servants,” (says Peter) “be subject to your masters with all fear; not only to the good and gentle but to the froward. For what glory is it if when ye shall be buffeted for your faults ye take it patiently; but if when ye do will and suffer for it, yet take it patiently, this is acceptable with God” (I Peter ii. 18, 20). These and many other passages in the New Testament most convincingly prove that slavery in the Roman world was nowhere charged as a fault or crime upon the holder, and everywhere is the most implicit obedience enjoined.
Here Dew argues that the bible looks upon slavery approvingly, which justifies American slavery. One should avoid saying “The bible was used to justify slavery,” as is common. First, this implies the bible was twisted, distorted in some way. Not really: the text was written in a slave society — of course it isn’t going to declare slavery immoral and worthy of abolition. It was written in a society of absolute male rule and horror over homosexuality, of course it calls for a boot on the neck of women and gays. These were primitive desert tribes. Their characters, including God himself and the biblical heroes, ordered and carried out such oppression (see Absolutely Horrific Things You Didn’t Know Were in the Bible). Even those who insist that God decided to switch from barbarism to loving one’s neighbor with the arrival of Christ — who believe that Jesus marked the change for humanity, when the crushing of slaves, women, and gays suddenly became immoral and against God’s Will — will notice that the oppression of all three groups continues in the New Testament (which is still the inspired and flawless Word of God), as seen in Dew’s writing and my Horrific Things. As one might expect from the brutal Iron Age of the Middle East. (Note how an atheist in the twenty-first century and the religious, pro-slavery head of an Anglican college in the early 1800s can agree: it’s fairly obvious the bible has no moral issue with slavery.) Second, “The bible was used to justify slavery” is passive voice that erases the doer and implies that religious beliefs were solely an afterthought in propping up the “peculiar institution.” “Many Christians used the bible to justify slavery” is better — someone is involved at last — but “Many Christians believed the bible justified slavery and said so” is best. These weren’t all just enslavers searching for ways to excuse what they were doing and at some point thought the bible could help them out. Perhaps some followed that path, but most Southerners were Christians (like most Americans) who believed in the scriptures long before they began defending slavery publicly. It’s how people were raised, in the one true religion that condoned enslavement. Most slavery advocates were sincere believers, some even pastors, who did not consider slavery wrong because of what their sacred text said. “Whoever believes that the written word of God is verity itself,” a Richmond paper noted, “must consequently believe in the absolute rectitude of slave-holding.” No one can deny the economic and racial motives of pro-slavery Americans, but neither should earnest religious belief be ignored. Many factors were at work.
Taney and Dew held repugnant views, all will agree. But many today race to be just like them. The bible oppresses women and gays, therefore gays should have no right to marry (58% of weekly churchgoers still oppose same-sex marriage), adopt, or be served in places of business, and women should not be pastors (the largest Protestant denomination just expelled five churches for having female ministers, citing scripture). Many deeply conservative Christians would nod approvingly over the former, while frowning in distaste at the latter. The question for them is obvious. If Dew was wrong, why are you right? Why is it permissible for the modern believer to reject the bible’s approval of slavery or women’s subordination, but not its condemnation of gay people? Cherrypicking indeed. And if Taney’s originalist view of the Constitution led him to moral trouble, and brought calamity upon black Americas, we should probably be more skeptical of the document, more careful not to glorify. Constitutions or declarations of independence written in 2023 wouldn’t accept slavery or racism, wouldn’t tolerate unfree persons worth three-fifths of a human being, nor edicts that slaves who make it to free states are not free, nor “merciless Indian Savages,” for one minute. (See also How the Founding Fathers Protected Their Own Wealth and Power.) Our patriotic texts were written in an indecent time as well. We live in a more civilized society now. You can still believe originalist readings are best legal practice, but you must recognize that original intentions can be wrong and must be willing to push wholeheartedly for amendments to eradicate such wrongs.
Old texts are troublesome. See, Taney and Dew were right — the bible does offer plenty of support for slavery, the Founding Fathers did not envision black political equality. The lesson here is to think more critically about documents of the past. To recognize the risk of going to morally flawed works for moral or legal guidance.
Of course, there are plenty of moral edicts and actions to be found in the bible (“Be kind and compassionate to one another, forgiving each other, just as in Christ God forgave you,” Ephesians 4:32), and other antebellum Christians believed the bible did not approve of slavery and said so — as most Americans were Christians, it is also the case that most Northerners and abolitionists were Christians (study the fiery, admirable Quakers, for instance). All sorts of beliefs and interpretations can spring from books containing much good and much bad. Obviously, there is also much that is valuable in the Declaration and Constitution. I wrote elsewhere that “the U.S. Constitution was a strong step forward for representative democracy, secular government, and personal rights, despite the obvious exclusivity, compared to Europe’s systems.” There is a lot to appreciate. And sometimes originalism produces moral outcomes, as one would expect from documents with much good in them (liberal justices use originalism as well; both sides use it when beneficial and reject it when inconvenient). We simply have to recognize the bad that comes with the good, and do something about it. The Constitution should be changed for the better, as it has been over two dozen times since the national founding, with amendments overriding the original articles. The moral flaws of the bible can simply be ignored, rejected from personal belief and public policy; most believers ignore how the New Testament lifts up slavery and male rule already — society can be far more decent than that — and should do the same with its antigay sentiment.
That’s how the moral person regards foundational texts from more backward, oppressive times. Don’t glorify. Keep what’s good. Burn the rest.
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