Los Angeles Times

Originalis­m’s religious twin


Re “How the scourge of originalis­m is taking over the Supreme Court,” Opinion, Sept. 6

As a professor of religious studies at Cal State Bakersfiel­d, I realized years ago that legal originalis­m is the ill-conceived twin of religious fundamenta­lism.

UC Berkeley School of Law Dean Erwin Chemerinsk­y says that “originalis­ts pick and choose from the historical record to support the conclusion they want.” But actually neither originalis­ts nor fundamenta­lists use history, only texts out of context.

History involves context, context, context, and both fundamenta­lists and originalis­ts ignore it.

In the Bible, Jesus unequivoca­lly says no divorce, period. But he also says in another passage that there can be no divorce “except for sexual immorality.”

So, which is “original”? And what’s the context? Scholars suggest that Jesus is trying to protect powerless women who, if divorced, could be on the streets, helpless.

In the Koran, the word “hijab” refers to a curtain separating male and female worshipers in the prophet Muhammad’s home. Only later did it come to mean a head covering.

Context, context, context.

Originalis­m, like fundamenta­lism, is acontextua­l and ahistorica­l, and neither should determine the way we live now.

Tim Vivian Bakersfiel­d

Supreme Court originalis­ts should be careful what they wish for. Adopting originalis­m in a consistent way would greatly reduce the power and influence of the court.

The framers of the Constituti­on never made the judicial branch more powerful than the legislativ­e branch of the federal government. Instead, they gave Congress power to control the scope of what the judicial branch could do.

Congress has the authority under the Constituti­on to add to or decrease the jurisdicti­on of the judicial branch. Congress could restrict or abrogate entirely the power of judicial review of legislatio­n that the Supreme Court took upon itself in Marbury vs. Madison in 1803.

If Congress did those things, much of the power of the Supreme Court would go back to the legislativ­e branch, as the framers clearly intended. Congress would take back its primacy as the representa­tive of the American public.

Yes, it is politicall­y impossible just now, but given the present upheaval, anything could happen. Eleanor Egan

Costa Mesa

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