Once you think about where originalism came from and what it was supposed to do, you begin to suspect that it may have run its course.
While reflecting on a reading from Leviticus regarding the gleaning laws, Stephen Gottlieb, a professor at Albany Law School, couldn’t help but consider that if the textualists on the Supreme Court were to construe the text, they would read it so as to “absolv[e] us from caring for the poor.” The “’strict’ textual solution,” he writes, would hold that “only farmers [are] responsible to the poor, allowing the rest of us to take comfort from their work.” Indeed, because there are fewer gleanings in modern-day agriculture than before, “the textualist philosophy gradually cancels the maxim itself. The textualists’ approach means the poor can go hungry as gleanings decline in the modern world.”
Textualists are just mean and miserly.
Oh, my. Where to start?
Before delving into the substantive point on gleaning, we might note the Bible does not leave its readers entirely without methodological instruction on how to read the Torah. Moses, for example, twice cautions Israel “You shall not add to the word which I am commanding you, nor take away from it, that you may keep the commandments of YHWH your God which I command you” (Dt 4.2, cf., 12.32).
That doesn’t seem to be a bad injunction to follow, whether construing divine legislation or construing human legislation: Read neither strictly nor loosely, but rather read reasonably. We might note as well that Moses’ words do not prohibit the need for additional human legislation. They rather prohibit teaching that human legislation is divine, and they prohibit obedience to human legislation that would permit or require disobedience to divine legislation (see, e.g., Mt 15.3-5).
Now to gleaning itself. As an initial matter, there’s a subtle, yet curious, initial assertion in Gottlieb’s argument. He writes, “there are scarcer gleanings in the modern day.”
The use of the passive voice is what’s arresting. Its use allows Gottlieb to sidestep the obvious textualist application of the law. Just who is responsible for these “scarcer gleanings in the modern day”?
The command in Leviticus does not merely grant permission to the needy and the stranger to encroach on farmland to gather what crops a farmer may have left in the field. The law in Leviticus 19 affirmatively commands farmers to leave crops in the field for strangers and the poor:
Now when you reap the harvest of your land, you shall not reap to the very corners of your field, nor shall you gather the gleanings of your harvest. Nor shall you glean your vineyard, nor shall you gather the fallen fruit of your vineyard; you shall leave them for the needy and for the stranger.
Crops left in the field for the poor and the stranger are scarcer today than they were yesterday because farmers now reap to the corners of their fields and, presumably, employ better harvesting equipment that leaves fewer gleanings.
This may be entirely justified given today’s urban environment. But Gottlieb rushes past the direct application of the text. He seemingly absolves modern farmers from obeying a text expressly speaking to them, and instead criticizes textualists for ostensibly refusing to create new commands derived from a specific law’s general principle. He writes,
An obvious solution is to identify the objectives of the biblical passage about gleanings and figure out how it might most appropriately be done. Scalia fought that idea. He railed against the possibility that the principles of values that underlie legal injunctions might be interpreted by judges. Liberals might try to figure out how to care for the poor instead of declaring the injunction unworkable.
So here would seem to be Gottlieb’s approach to interpreting legislation: From a specific piece of legislation commanding particular behavior in a particular situation, ignore the expressly-commanded application of the law, and instead deduce a general principle. Then, have judges, under the guise of merely interpreting that specific command, trick out new, specific applications of the law.
Gottlieb suggests unless judges adopt his interpretive methodology in construing the gleanings law, our textualist Bible interpreters would have the poor starve.
How about this instead: Rather than judicially twisting the text of a divine command to apply in cases to which it does not speak, how about looking for the principle itself in the Scriptures, and perhaps allowing human legislators rather than human judges actually legislate new laws without the pretense that they’re merely applying a specifically-written divine law?
Contrary to Gottlieb’s suggestion, the general principle need not be deduced from the gleaning law; Moses expressly states the general principle in generally-worded texts:
Now in case a countryman of yours becomes poor and his means with regard to you falter, then you are to sustain him, like a stranger or a sojourner, that he may live with you (Lev 25.35).
For the poor will never cease in the land; therefore I command you, saying, ‘You shall freely open your hand to your brother, to your needy and poor in your land.’ (Dt 15.11).
Moses presents a welter of specific, divine legislation implementing the general principle. There is the field-eating law (Dt 23.24-25), requirements of no-interest loans, along with Sabbath-year forgiveness of debt and release from a sort of indentured workfare (Dt 15), prohibitions on keeping certain loan pledges (Dt 24), making wage payments to subsistence workers promptly (ibid), and more. All specifically implement the general injunction to care for the poor.
To be sure, along with Gottleib, a textualist could easily recognize that much of the specific Mosaic legislation concerning the poor no longer achieves the purpose of providing for the poor in today’s modern, largely urban environment. (Although things like Goodwill stores might apply the gleaning insight in an urban environment.) But rather than pretending to trick out ostensible applications of specifically-worded divine statutes, as Gottlieb would have us, the textualist would have us take the honest, accountable step of writing and enacting new legislation. It would be merely human legislation, to be sure, but human legislation implementing God’s expressly revealed general principle rather than masquerading as a direct application of divine legislation.