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Originalism is Religious Fundamentalism

Writer's picture: Adedayo AdeoyeAdedayo Adeoye

Updated: Jun 17, 2024

“So, you can see how, at the end of the day, the Western rationalist thought characterizing this sort of Jacobin democracy comes to, in some way, reinforce the dangers of religious fundamentalism.” 

- Michel Foucault, “Political Spirituality and the Will to Alterity.” 


INTRODUCTION

In New York State Rifle & Pistol Association v. Bruen (2022), the Supreme Court ruled that New York state’s gun licensing laws were unconstitutional and thus constitutionally protected a person’s ability to carry a pistol publicly.  Since the early 20th century, New York has regulated the public carrying of handguns. Beginning with the 1911 Sullivan Act, New York required a person to show a “special need for self-protection” to receive an unrestricted license to carry a concealed firearm outside of their home. Further, the New York law states that courts could issue a person a license to have and carry a concealed pistol or revolver only if that person proved “good moral character” and “proper cause.” From this, the Supreme Court decided, with Justice Clarence Thomas writing the majority opinion, that New York’s “proper cause” requirement violated the Fourteenth and Second Amendments. In the court's view, the right to carry a firearm publicly for self-defense is deeply rooted in history, and no other constitutional right requires a showing of “special need” to exercise it. One aspect of this case that makes it incredibly significant is its institution of the “Bruen rule” developed by Justice Thomas. This new rule makes it so that rather than considering whether a law enhances public safety–as was the historical practice of judges–judges should only weigh whether the law fits into the nation's history of gun regulation. Justice Thomas mandates that the constitutionality of modern gun laws must be evaluated by direct analogy to history, unmediated by familiar doctrinal tests. This decision, to date, overturned over a dozen federal gun control laws and threatens 284 decisions addressing Second Amendment claims.


Justice Thomas’s invocation of a “direct analogy to history” is very consistent with what it means to be a conservative judge in American society today. In the 2023 Yale Law Review, Blocher and Ruben refer to his move as “originalism-by-analogy.” Conservative justices strongly believe in stare decisis or a deep respect for precedent. They have a narrow view of the Constitution, especially the Bill of Rights. This narrow view is referred to as “originalism,” which means they believe that the meaning of the Constitution was fixed at the time it was adopted. From this vantage point, conservative judges adhere to a textualist approach, which means that their interpretations are "guided by the text and not by intentions or ideals external to it, and by the original meaning of the text, not by its evolving meaning over time." They aim to stick to the “original meaning” of the Constitution and limit judicial activism at all costs.  The ears of a progressive, American religious studies scholar should start to tingle, for this approach sounds eerily similar to Evangelical Christian fundamentalists’ orientation towards the Bible. I do not believe that this is coincidental but rather evidence of Christian nationalism in our judiciary.


In this paper,  I will show how originalism is a form of religious fundamentalism. Rooting my analysis on the Christian religious tradition, specifically American Evangelical Protestantism, I will show how the fundamentalist intratextual approach, coupled with the theological theme of Bible infallibility, intertwines with the current Supreme Court, and proliferates the Christian Nationalist judicial-psycho-cultural project to create a sense of belonging and ease fears on losing Christian privilege. I will end my argument by showing how the Bruen Rule is just another example of the Christian Nationalist project in action.


ORIGINALISM, INTRATEXTUALITY, & BIBLE INFALLIBILITY

Understanding that originalism is a form of religious fundamentalism is vital because the current Robert’s Supreme Court has been regarded as the most “pro-religion” court since at least the 1950s, with the most pro-religion justices since World War II. This has resulted in the empowering of Christian Nationalists in the federal government. Due to the conservative aims of Christian nationalism, this has already resulted in the loss of abortion rights, the protection of homophobic discrimination, and, as I highlight in my paper, the overturning of gun control legislation (to name a few). To understand the way out of this, it is essential to critically understand the tools that propagate it, like originalism.


The Bruen Rule symbolizes the court's turn to history, which law professors Joseph Blocher and Eric Ruben explain is just masked originalism. They describe how the Bruen rule is novel because the rule purports to reason directly and exclusively by analogy to the historical record as if the historical record is absolute instead of simply adopting a different approach to constitutional historicism— identifying the original public meaning of the constitutional text and then applying standard doctrinal rules. There is also an unequivocal hierarchy regarding legal doctrine that places the Constitution at the top. Overall, it follows originalist logic that courts should give deference to the language of the text and that the Constitution ought to be given the “original public meaning” during ratification. The part of this logic that piques my interest the most is that it renders the Constitution's original meaning as sacred: infallible and unworthy to be changed. As the supreme law of the land, it is not too far of a leap to conflate it with another supreme text that dominates American society: The Bible. 


In their book, The Psychology of Religious Fundamentalism, Hood et al. make the case that intratextuality is the formative principle in any religious fundamentalism. This belief posits that the text itself determines how it ought to be read. They believe a reader must go into the text and allow it to speak for itself as an absolute, authoritative truth. For example, they cite fundamentalist Christians who would say that the Bible is the Word of God and, thus, the truths held in the Word are absolute. The sacralization of a text and the belief in a supreme truth are the operative modes of intratextuality. The text as it was originally sufficient. 

This connects to the theological position that the Bible is infallible in Christianity. According to the Westminster Dictionary of Theological Terms, Bible infallibility is the belief that the Bible is completely trustworthy as a guide to salvation and the life of faith and will not fail to accomplish its purpose. They also emphasize that this view is, first and foremost, tied the conservative doctrines of Protestant Evangelicalism. Through a historical-critical lens, we see that the history of Protestant thought supports this view since beliefs in biblical infallibility arose simultaneously with evangelicalism. McGrath writes, in Christian Theology: An Introduction,  that the development of the ideas of ‘biblical infallibility’ or ‘inerrancy’ within Protestantism can be traced to the US in the middle of the 19th Century” and thus shows how it is rooted in the early fundamentalist movement. This profoundly evangelical orientation towards the Bible has led to a hermeneutic of Biblical literalism. Some evangelicals take the bible as given, or put another way, historically absolute and adhere to an original public meaning that only a few select people can truly understand. Putting evangelical biblical infallibility and fundamentalist intratextuality together, we get a method of reading historical documents that the courts have indeed mirrored. Yet the question remains: Why? 


CHRISTIAN NATIONALISM & THE FUNDAMENTALIST MINDSET

To this question, I argue that adopting religious fundamentalist methodologies, via modes like originalism, are helpful tools for Christian Nationalists to (1) advance their judicial-psycho-cultural project and (2) settle their anxieties/fears about losing their Christian privilege. By applying the hermeneutics from their conservative religious tradition to the Constitutional interpretation, Christian nationalist solidify their power, advance their cultural views of society, and reinforce that the United States is a Christian nation top down, from the Supreme Court to the sanctuary. 


Buzzwords like “conservative” and “pro-religion” have effectively become euphemisms for a larger political movement that has become emblematic of the current political era: Christian Nationalism. Christian Nationalism is a phenomenon that permeates American society and poses a significant threat to the health of our democracy since it challenges abstinence from adopting a state religion. Christian Nationalists are people who strongly agree that the U.S. government should declare America a Christian nation and that our laws should be based on Christian values. Going further, the Christian Nationalism movement is inextricably tied to the Evangelical Protestant movement, which are the principal ideologues of the movement. 


Christian Nationalism is as much of a legal and psychological movement as it is a religious movement. Pamela Cooper-White describes Christian nationalism as “a cultural framework–a collection of myths, tradition, symbols, narratives, and value systems–that idealizes and advocates a fusion of Christianity and American civic life.” Though evangelicalism, Protestantism, and white conservatism are not necessarily synonymous with Christian nationalism, they loosely rely on all of these theologies and methods to express their overarching ideology of White Christian power in the public square. For example, in describing right-wing Representative Mike Johnson’s (R-LA) appointment to Speaker of the House, political scientists regard this as proof that white evangelicals still have a “very strong hold” on the modern Republican Party. Especially during the Trump administration,  many judicial appointments were made based on how pro-religion and conservative the judge proved to be.


As a movement, Christian nationalists have been explicit that their goal is to advance their agenda not just on the legislative and executive levels but also in the judiciary. For Katelynn Fossett and Kristen Kobes Du Mez, “Christian nationalism essentially posits the idea that America is founded on God’s laws and that the Constitution is a reflection of God’s laws. Therefore, any interpretation of the Constitution must align with Christian nationalists’ understanding of God’s laws.” Not only must this view align with the conservative court's decisions/case law, but also with methods they adopt to reach those decisions, i.e., originalism. God’s laws are constructed spiritually and politically. 


Christian nationalists adopt such an expansive approach—ensuring that their influence is shown on all levels of government—to protect their ideology based on a plethora of psychological phenomena. Chief among these is the psychological need for belonging and fear of losing social status. Christian nationalists are fundamentalists and thus show evidence of embodying the fundamentalist mindset. Paranoid fear of losing group identity becomes part of what makes such a group fundamentalist based on the psychology “that humans have a general, universal need to be connected to some cause that endures beyond one's lifetime and offers a semblance of immortality.” Therefore, by codifying their views, Christian nationalists can foster a sense of immortality since the state legally protects their worldview. 


Plus, part of the fundamentalist mindset is the adoption of dualistic thinking that renders an in-group and an out-group. Being in this in-group comes with a certain level of power and privilege in American society. Responding to the idea that Christian groups have the power to define normalcy in the United States, Khyati Y. Joshi contends that Christian hegemony at the cultural and societal level is maintained in American society via the exercise of Christian privilege. It becomes normal for the majority of lawmakers, law enforcement, and law interpreters to be Christian.  In the United States, Christian privilege, like White privilege, exists through the cultural power norms that are largely invisible and thus unquestioned. Christian nationalism is perhaps the final frontier of Christian privilege; it would codify and legitimize the hegemony of Christianity in the United States. 


In many ways, I sympathize with their anxiety because the stakes for many Christian nationalists are eschatological. Case law, above all, is protection for these groups. They can feel secure that their identity will not be metaphysically in peril because they have created a society where their God reigns supreme. As Strozier et al. affirms, to not have these protections in place is to make them vulnerable to eternal damnation and apocalyptic horror. 


COUNTERARGUMENTS

Some may disagree with the premise of this paper, arguing that due to the principle of secularist First Amendment principles, that there is a separation of church and state, the law and legal practices are fundamentally incompatible with Christian Nationalism and operate as such. The Constitution protects itself from Christian nationalist interference, and thus, an accurate originalist view would counter religious fundamentalism. Plus, they might counterargue that  Christian Nationalists do not need the courts to protect their sense of belonging since they have majoritarian power in other branches of government. For these arguments, It is only coincidental that originalism mirrors intertextuality. However, the trajectory of civil religion in the United States counteracts this view. The United States is, in fact, a Christian nation, and secularism—if it exists—has never been an ideal achieved in American society. Robert N. Bellah proves this in his groundbreaking essay, “Civil Religion in America,” as well as Winifred F. Sullivan in her book, The Impossibility of Religious Freedom. 


CONCLUSION

Notwithstanding Justice Thomas’s background in theology and previous aspirations to be a Catholic priest, his string of ultra-conservative court decisions, and his explicit ties to Christian nationalism, Justice Thomas’s Bruen rule created through originalism-by-analogy expresses religious fundamentalism and is connected to Christian nationalism. Knowing this, it is easier to see how other significant Supreme Court rulings done under the method of originalism expand Christian Nationalism, like homophobia and abortion rights. Yet, one issue of concern is why guns? Why is overturning gun control legislation part of a Christian Nationalist’s project? Though I will not be answering this question in depth in this paper, I will be exploring this more in my master’s thesis. In short, I will argue that guns are necessary for Christian fundamentalists as political and spiritual tools of spectacle, silence, and, above all, power. What is at stake if progressive theologians and liberal judges don’t intervene is the continued empowerment of Christian nationalism and even the destruction of the United States as a multicultural, diverse, free democracy as it aspires to be. 




Works Cited 

Adams, Maurianne, Warren J. Blumenfeld, Heather W. Hackman, Madeline L. Peters, and Ximena Zuniga, eds. Readings for Diversity and Social Justice. 3rd edition. New York: Routledge, 2013.

Bellah, Robert N. “Civil Religion in America,” 2005.

Calabresi, Steven G. “On Originalism in Constitutional Interpretation | Constitution Center.” National Constitution Center – constitutioncenter.org. Accessed December 17, 2023. https://constitutioncenter.org/the-constitution/white-papers/on-originalism-in-constitutional-interpretation.

Cooper-White, Pamela. The Psychology of Christian Nationalism: Why People Are Drawn In and How to Talk Across the Divide. Minneapolis, MN: Fortress Press, 2022.

DeGirolami, Marc O. “Comparing Traditionalism and Originalism II - Marc O. DeGirolami.” Law & Liberty (blog), February 4, 2016. https://lawliberty.org/comparing-traditionalism-and-originalism-ii/.

Dickinson, Tom. “Christian Nationalists Are Building a Legislative Machine.” Accessed December 17, 2023. https://www.rollingstone.com/politics/politics-features/christian-nationalists-national-association-christian-lawmakers-1234684542/.

Edsall, Thomas B. “Opinion | ‘The Embodiment of White Christian Nationalism in a Tailored Suit.’” The New York Times, November 1, 2023, sec. Opinion. https://www.nytimes.com/2023/11/01/opinion/mike-johnson-christian-nationalism-speaker.html.

Fossett, Katelynn. “The Christian Nationalist Ideas That Made Mike Johnson - POLITICO.” Accessed December 17, 2023. https://www.politico.com/news/magazine/2023/10/27/mike-johnson-christian-nationalist-ideas-qa-00123882.

Jr, Ralph W. Hood, Peter C. Hill, and W. Paul Williamson. The Psychology of Religious Fundamentalism. 1st edition. New York: The Guilford Press, 2005.

Justia Law. “New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. ___ (2022).” Justia Law. Accessed December 15, 2023. https://supreme.justia.com/cases/federal/us/597/20-843/.

Kinsley, Michael. “What Is a Conservative Judge?” The Atlantic (blog), April 12, 2010. https://www.theatlantic.com/politics/archive/2010/04/what-is-a-conservative-judge/38786/.

Legal Information Institute. “The Bruen Decision and Concealed-Carry Licenses.” LII / Legal Information Institute. Accessed December 15, 2023. https://www.law.cornell.edu/constitution-conan/amendment-2/the-bruen-decision-and-concealed-carry-licenses.

Marcus, Ruth. “Opinion | Originalism Is Bunk. Liberal Lawyers Shouldn’t Fall for It.” Washington Post, December 1, 2022. https://www.washingtonpost.com/opinions/2022/12/01/originalism-liberal-lawyers-supreme-court-trap/.

McGrath, Alister E. Christian Theology: An Introduction. 25th Anniversary Sixth Edition. Chichester, West Sussex ; Malden, MA: Wiley, Blackwell, 2017.

McKim, Donald K. The Westminster Dictionary of Theological Terms, Second Edition: Revised and Expanded. Expanded edition. Louisville, Kentucky: Westminster John Knox Press, 2014.

Oyez. “New York State Rifle & Pistol Association Inc. v. Bruen.” Oyez. Accessed December 15, 2023. https://www.oyez.org/cases/2021/20-843.

Philbrick, Ian Prasad. “A Pro-Religion Court.” The New York Times, June 22, 2022, sec. Briefing. https://www.nytimes.com/2022/06/22/briefing/supreme-court-religion.html.

Press, Associated. “The Supreme Court Takes Up Case That Again Tests Limits of Gun Rights.” Voice of America, November 7, 2023. https://www.voanews.com/a/the-supreme-court-takes-up-case-that-again-tests-limits-of-gun-rights/7344701.html.

———. “The Supreme Court Takes Up Case That Again Tests Limits of Gun Rights.” Voice of America, November 7, 2023. https://www.voanews.com/a/the-supreme-court-takes-up-case-that-again-tests-limits-of-gun-rights/7344701.html.

PRRI. “A Christian Nation? Understanding the Threat of Christian Nationalism to American Democracy and Culture | PRRI.” PRRI | At the Intersection of Religion, Values, and Public Life. (blog), February 8, 2023. https://www.prri.org/research/a-christian-nation-understanding-the-threat-of-christian-nationalism-to-american-democracy-and-culture/.

Rossum, Ralph A. “The Textualist Jurisprudence of Justice Scalia | Claremont McKenna College.” Accessed December 15, 2023. https://www.cmc.edu/salvatori/publications/the-textualist-jurisprudence-of-justice-scalia.

Ruben, Joseph Blocher & Eric. “Originalism-by-Analogy and Second Amendment Adjudication.” Accessed December 17, 2023. https://www.yalelawjournal.org/article/originalism-by-analogy-and-second-amendment-adjudication.

Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law. Edited by Amy Gutmann. First paperback edition. Princeton, NJ: Princeton University Press, 1998.

Seering, Lauryn. “A Christian Nationalist Judiciary - Freedom From Religion Foundation.” Accessed December 18, 2023. https://ffrf.org/legal/christian-nationalist-courts.

Strozier, Charles B., David M. Terman, James W. Jones, and Katherine A. Boyd. The Fundamentalist Mindset: Psychological Perspectives on Religion, Violence, and History. New York: Oxford University Press, 2010.

Sullivan, Winnifred Fallers. The Impossibility of Religious Freedom. Princeton, NJ: Princeton University Press, 2007.

Valentine, Matt. “Clarence Thomas Created a Confusing New Rule That’s Gutting Gun Laws - POLITICO,” July 28, 2023. https://www.politico.com/news/magazine/2023/07/28/bruen-supreme-court-rahimi-00108285.



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