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Fundamentalism I: Law From the Clerk Who Won’t Work

NBC News reported not long ago, with video, from Rowan County, Kentucky, where the county clerk would not work. On her release from jail for contempt of court, a billboard met the clerk who won’t work:

Dear Kim Davis, the fact that you can't sell your daughter for three goats and a cow means we've already redefined marriage.

The message was paid for by a nonprofit called Planting Peace, and for Christians who read their book; it carries a serious theological message. The only places in the Bible that contain full-throated denunciations of homosexual conduct are in the letters of St. Paul (Romans 1:26-27, 1 Corinthians 6:9-10, 1 Timothy 1:9-10), who also did not like sex practiced by married heterosexuals (1 Corinthians 7: 1, 7:6-9) and the Old Testament, where homosexual conduct was an “abomination” just like eating oysters (Leviticus 11:9-12) or wearing fabrics containing more than one cloth (Leviticus 19:19 and Deuteronomy 22:11).

Exodus 21 contains the rules for selling your daughter into slavery and purports to regulate the beatings slaves receive.

Confronted by this silliness, the “scholars” among fundamentalists claim that some of these rules only apply to Jews and that they must be understood in historical context. That is, they indulge the exact sort of exegesis they scorn when mainstream Christian theologians do it.

Christian fundamentalists also scorn Muslim fundamentalists. The defining characteristic of fundamentalism is that holy text is inerrant and to be interpreted literally. So, for a fundamentalist minority of Muslims, the Holy Quran says women can’t drive cars and justice involves maiming and killing.

Lawyers have fundamentalists as well, who claim that the U.S. Constitution will answer all questions easily by reference to the “plain language” or, at most, “original intent.” When these interpretive tools point to absurd results, of course, the legal fundamentalists skip down the yellow brick road of exegesis.

Fundamentalist Justice Antonin Scalia calls it the difference between the Constitution as “living” or as “dead,” and Scalia is convinced that the document is dead and it died at the moment of ratification, that point at which it meant all it can ever mean.

Postmodern scholars are the worst nightmare of fundamentalists, since they hold that the meaning of a writing is always a “contested discourse” and is not something knowable in an objective sense even by the author. For them, the problem is finding consensus among the stakeholders about meaning rather than putting meaning back together like the pieces of tablet carried in the Ark of the Covenant. https://www.youtube.com/watch?v=0APF3SO9tqE

Allowing for the tricks memory plays, the author can know, at most, what she intended. I’ve been edited by some very good people and one thing an excellent editor accomplishes for me is to show me where I did not say exactly what I intended. It happens often enough that I would put it in an editor’s job description to know the text better than the person who produced it.

There are many theories of interpreting text, but none of the useful ones make the claim that all text has an objectively knowable meaning. It’s also worth a notice that language changes in major ways over time, rendering what was obvious at first publication problematic.

When interpreting text, context is everything. Most fundamentalists read “eye for an eye” as a plea to justify cruelty when, in historical context, it was a plea to justify lenity. When a document is dead, historical context does not matter.

Fundamentalists in religion or in law make the claim that if you allow the exegesis camel to get its nose in the tent, there will be no fixed principles. Text will mean whatever the learned say it means and that will shift power from doers to scholars.

It is no accident that the “Arab street” is in love with fundamentalist Islam. It is no accident that fundamentalist Christianity is centered in the states of the Confederacy, the lowest education states in the U.S.

Fundamentalism’s primary attraction is simplicity, achieved under a burning light of truth that renders everything in stark black and white. Fundamentalism is the apotheosis of populist ideology.

The legal fundamentalists fear a phantom, because no judge will quarrel with fidelity to the law as a first principle. Where we differ is in how to determine what the law is. If that were not a valid question, there would over 200 years after the Constitution was ratified be no business for the Supreme Court but construing federal law and hearing cases of original jurisdiction. How long should it take to decide the eternal, unchangeable meaning of 4,543 words?

The religious fundamentalists fear a different phantom. Without clear divine commands, human beings can’t tell right from wrong. Fundamentalism is the fruit of a populist revolt against a literate priesthood, working in Latin, as the only arbiter of divine will.

That can’t be correct, the populist argument goes, because it’s not fair to consign an individual to burn in hell for all eternity for violation of rules that individual can’t know without taking the word of a scholar.

My discussion of fundamentalist religion continues in part II, but for now the clerk who won’t work, if she aspires to teach people about the Bible, ought to remember the patriarchal structure of the Abrahamic faiths and attend to 1 Timothy 2:12.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.