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Neil Gorsuch, Stanley Fish, Martin Luther, and the Bible: Whither Authoritative Interpretation?

02 Feb
Judge Neil Gorsuch

Judge Neil Gorsuch

A couple days ago, President Donald Trump’s proposed replacement for Supreme Court Justice Antonin Scalia was announced. We read in Slate about U.S. Court of Appeals for the 10th Circuit judge Neil Gorsuch:

“Gorsuch identifies himself as a textualist and an originalist in the tradition of Justice Antonin Scalia, meaning he interprets the Constitution based on its plain language and original public meaning.”

Across the board, American Christians seem quite happy about the decision (see here), and much of this has to do with the fact that Gorsuch is not an “activist judge” but an “originalist”.

What is this originalism and why is it so significant? You can delve into a helpful explanation here, but not too long ago on Albert Mohler’s show Thinking in Public, public intellectual Stanley Fish gave a helpful and very engaging overview of the different kinds of “originalism”:

Justice Scalia and I are—or were, I guess in his case, unfortunately—both originalists, and originalists at least in the context of constitutional interpretation, as someone who believes that basically the act of interpretation is the act of trying to figure out what the text originally meant when it was produced at whatever date. And I would say that that understanding of interpretation—that you’re trying to figure out what some speaker or writer meant—is not an approach to interpretation, it is interpretation, because what else could you be doing when you’re trying to interpret the words of another except trying to figure out what that other meant by these words? Where Scalia and I diverge is that he is a textualist originalist, and I am an intentionalist originalist. A textualist originalist thinks that the answer to the question, “Well what was meant by this text at the time of its junction?” is to be found by examining the text in and of itself independently of any consideration of intention or, Scalia said, independently of any consideration of legislative history. I, on the other hand, am firmly persuaded that the only way to get at the meaning of a text is to figure out what the author had in mind, or authors had in mind, at the moment of its production, and that if you just look at the text in and of itself it won’t tell you anything, or it will tell you too many things. But if you can at least make a good guess based on the available evidence about the spirit of purpose within which this utterance emerged, then you will have a way of determining what the text meant. So that we’re both originalists, but we diverge in the version of originalism each of us follows.

MOHLER: You know that’s really interesting because toward the end of his life, Justice Scalia actually preferred not to call himself an originalist at all, but rather a textualist, which just kind of affirms your analysis there.

NY Times op-ed columnist, Stanley Fish.

NY Times op-ed columnist, Stanley Fish.

FISH: Well yeah, that’s right. His textualism and my intentionalism are both variants of originalism, but originalism is I guess the mothership that houses us both.

MOHLER: So that leads to a couple of questions to me. The first is you said that that is not a method of interpretation, it is interpretation. So how can it be that in the modern academy interpretation is evidently something other than what you just to find it to be?

FISH: Well it’s because people have confused interpretation, and therefore meaning, with communication. Many have observed that any text that has either been uttered or written is available to many interpretations, and that has led people incorrectly to assume that texts or spoken words are irremediably ambiguous. And I would reply no, that’s not the case. The debates about interpretation, the interpretive debates over a text, either written or oral, are always debates about the spirit within which the text emerged—always debates about what the author or authors had in mind. And people who have different answers to that question—what the author or authors had in mind—will then see the text as meaning differently. And there’s been the unwarranted conclusion from that picture of interpretation that interpretation is entirely subjective and can go in any direction one likes. It’s not subjective, neither is it objective in the sense that there’s any machine for producing correct interpretations. What you have to do, and it’s an empirical exercise, is to try to figure out as best you can what the author or authors had in mind. Let me give you an example. My wife and I got off a plane in the small town of Stewart, Newburgh, rather Newburgh, New York, Stewart Newberg Airport at quarter to twelve in the evening, fifteen minutes before midnight, and we were immediately met as we stepped off the plane into the terminal by a sign that said, “Hot panini sandwiches now being served in the Euro Café.” So the question is, “What does that sign mean?” And it’s obvious that the sign could mean at least two things—actually more, but we’ll stick to two. It could mean either, “if you trot down the hall right now to the Euro Café, you will be able to enjoy a hot panini sandwich,” or it could mean, “we have now added hot panini sandwiches to our menu.” So how do you figure out which it means? And the answer is that you have to put yourself in the place of those who produced the sign, and you have to also note that you’re in a rural airport in upstate New York, and that in almost any airport in this country, aside from O’Hare and a couple of others, no restaurants are open at quarter to twelve in the evening. And therefore, through that kind of empirical reasoning, you can figure out what author or authors of the sign had in mind. The text itself won’t tell you, and that’s why I’m an intentionalist, not a textualist.

Fish’s objection to textual originalism is interesting. Clearly, sometimes when we look at a sentence the words and grammar make perfect sense but the sentence could have more than one meaning. For example, in a biblical Greek class I am taking right now, we translated a sentence into English that could have meant either “The slaves were killing the children with the disciples” or “The slaves were killing the children along with (i.e. “and”) the disciples”. We opted for the latter translation! (of course, as I recently heard someone say [Todd Wilken!], sometimes the words “good night” can also mean “leave me alone” but that is a different kettle of fish!)

And, of course, Fish’s example about the panini sandwich is  interesting and illuminating. Context is always an important element of any interpretation, and in the example he gives above, immediate contextual clues and background knowledge, of course, are critical. That said, while I am no expert in this topic, it seems to me that Fish’s objection is handled fairly easily. After all, in trying to make his case for “intentional originalism” I note that he does not use an example from the law. If he did that, of course, any sentence he might give would be surrounded by a great many more words in a document carefully crafted by lawyers or judges to be clear and concrete – aware of the fact that the words we speak and sentences we write are often liable to more than one interpretation.

Martin Luther

Martin Luther

And of course, the primary author of the Bible, God Himself, would be aware of things like this as well. As Martin Luther said in the Bondage of the Will:

“…if laws need to be luminous and definite in secular societies, where only temporal issues are concerned, and such laws have in fact been bestowed by Divine bounty upon all the world, how should He not give to Christians, His own people and His elect, laws and rules of much greater clarity and certainty by which to adjust and settle themselves and all issues between them?… let us go on, and overwhelm this pestilent saying of the Sophists with passages of Scripture.” (p. 126, Packer edition)

When it comes to biblical interpretation, the most important contextual information in interpreting any particular sentence would be the words surrounding that sentence, including the rest of the entire book the words are drawn from (e.g. the book of Matthew). And then, going broader and deeper, we would look to the entire Bible that the church has recognized as the Word of God. Talking about things like geographical, historical, and cultural context are certainly important as well (see the amazing Acts commentary from Keener!), but even here, a great deal of this context can be found in the biblical books themselves. All of this information should give us our primary context for understanding what we read in the Bible.

Furthermore, given our view of the clarity that is found in the Bible, it would be safe to say that when it comes to Scripture, the “original meaning” (i.e. what reasonable persons would have understood the text to be saying) cannot be explicitly divorced from the intent of the biblical authors, and ultimately, the Author (not to say that the understanding of the text’s meaning might not become deeper and more full as time goes on). Not only this, but we will become better interpreters of particular things that God says the more familiar we are will all that He has said. In other words, the more familiar we are with Him (see more thoughts on how we should see the Bible and apply it to our lives here).

Lastly, as Luther never tired of reminding us, all of these biblical words give us Christ, who reveals to us the fullness of God’s heart towards His fallen creatures. The Bible, in other words, is the cradle that introduces us to the Word made flesh, for us.

FIN

Note: minor changes made to text after initial publishing.

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11 Comments

Posted by on February 2, 2017 in Uncategorized

 

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11 responses to “Neil Gorsuch, Stanley Fish, Martin Luther, and the Bible: Whither Authoritative Interpretation?

  1. FullCottle

    May 21, 2018 at 8:22 pm

    You make an appeal to some kind of unclear originalism as meaningful to biblical interpretation, and in part appeal to authority in the form of Luther, who is writing with the extremely contentious viewpoint that the positive descent of law is divine in origin, and by extension has a mirror in the form of Christian “laws and rules” governing interpersonal disputes (“by which to adjust and settle themselves and all issues between them”). Therefore, if “laws” given to man by God (which only begs the question of how to distinguish those from those which are not, if any are not, and then establishing the principle as to why some are, or some are not, or all are, or all are not) are “clear” then God’s law must be “equally clear.” Many are the prosecutors who claim “laws” are clear, and many are the defendants who claim they are not clear. Was Scalia right that the federal statute outlawing “use” of weapons in drug transactions did not cover an exchange of a gun for drugs, or was he wrong? If what “Congress” wanted was to make sure no guns are brought to drug transactions, then he was simply wrong; if “Congress” is a meaningless entity which doesn’t exist, and only these texts which originate ex nihilo matter, then Scalia was maybe right, but only if his “common-sense” definition of “use” (which isn’t much of a “textualist” appeal) is right.

    I think you create an interpretive quagmire by assuming a) the Bible as compiled by the church is some kind of reliable, hermetically sealed text which provides all its own interprephrands and
    interprefiers (to coin some nonsense from Jaynes) and b) even if the Bible-as-closed-canon does not provide its immediate solvent to a question posed internal to it, some kind of easily identified and reliable external parol evidence will do the trick (the consensus as to which qualify I am sure you know is hardly fixed). Even assuming that the Torah and the Prophets are somehow error-free and the New Testament canon is equally error-free, the problem of uncovering the “original” meaning of such documentary archives remains.

    Take the Mark and Matthew passages regarding what is the real defilement of the body. Nobody can, by simply reading a piece of paper bearing the name MARK at the top and broken up into helpful little separate passages like chapter and verse, compare to a similarly edited document titled MATTHEW and find that any one predated the other; whether the more complicated passage in Matthew is the pertinent ruling of the “real Jesus” on the topic at hand (ritual cleansing and kosher foods in Matthew or some mystical blessing of all non-kosher foods by the Jewish Messiah in Mark). No amount of originalist reading is going to uncover the meaning of these passages unless some kind of perfect epistemology is assumed, which would mean, at minimum, a) a native understanding of the Judean culture including its religious texts and the “oral tradition,” and b) a native understanding of first century Greek. That is beyond the ken of practically every person alive, and even for those that can do so, differentiation of opinions as to “original” meaning arise. Compare Saiman with Zellentin on the term “traditions of the elders.” It’s a hopeless task to pretend that some kind of originalist myth will uncover the “real Jesus” out of the available texts, especially as Jesus didn’t bother to write anything down (as far as we know).

    Fish’s example of a sign left standing is terrible. Imagine the sign was left up in error, after the panini store had closed: a sign left up in error is no sign at all; anymore than a sign on a shop which says “OPEN” but is locked, with lights off and unstaffed “really” means that the shop is OPEN. So the “sign” doesn’t mean anything until the message of the “sign” is confirmed.

    Now for my argument: most signs are left up in error – our world is a ghost town full of signs with no meaning any longer; uncovering the original meaning satisfies only an archaeological / anthropological fetish to learn and to know about the past, but no amount of speculative banter over, e.g. why Moses had to stone the man who picked kindling when the “positive law” at the time did not expressly forbid the mere act of picking up sticks, has no application to the world “open for business” now. Consider the Rule Against Perpetuities – there’s a reason it’s a good law: we don’t want some lawyer 1000 years later trying to decipher what people in 18th century America meant for a document with relevance only to the heirs in question (if such heirs could even be deciphered). If some future scholar tasked himself with doing that for fun, it’s no different than those “originalists” Biblical scholars trying to uncover the “real” meaning of various Biblical passages.

     
  2. Josh Cottle

    May 22, 2018 at 1:56 am

    Yeah it seems irrelevant to your post on originalism, but a decent extension of your Lutheran discipleship, which for you is no unimportant undertaking! The second half, which asserts that God reveals himself in full to the dedicated readers of the Word (or if you follow the Psalmist, through all creation), also seems to undercut the first half, which is that Christians are people who take reading the Bible “seriously.” The one is revelation to the called-out ones, the second is a commonplace trait of any adherent to a guiding text. (Nor does it rebut the bizarre assumption of Luther that mortal laws are “clear,” and therefore God’s “law” must be perfectly clear! Tell that to the Pharisees.)

    The obvious problem with your parroting of the “meaning” of the term originalism as simply being some kind of assumed position whereby one “interprets” the Constitution based on “plain language and original public meaning” (two exercises so difficult they belie the simplicity of the terms deployed). Fish is wrong to say that “originalism,” which necessarily entails an epistemological / metaphysical undertaking in discerning meanings and then drawing rules from such meanings out of ancient texts, “is [per se] interpretation.” When you synopsize Fish and the originalist position (per Wikipedia) as simply referring to people who take the “words” of the Big C seriously, it is not much at all; even non-originalists take the “words” seriously; I have yet to see a non-originalist assertion that, e.g., Katz’s “right to privacy,” even if existing within the “umbra” of explicit Constitutional verbiage, could exist without such explicit verbiage; although many hypotheses could be advanced that a Katz-like decision could be so reached. Once you assert this undisputed, and unimportant, point, you then make the leap to an equally undisputed and unimportant point: that Christians take the words of the Bible seriously. Taking something seriously is, of course not originalist in and of itself. Taking “heresies” seriously is important for people who are concerned with heresies, which may be in the province of an originalist theologian or otherwise, no?

    It is a red herring as to whether I (or anyone else) think that the Bible has an overarching message, which may be clear or well-established (or not). I’ll posit that there is no “one” message in the 66 books of the Bible, and to the extent that you think monolithic meaning-inferring is the task of the originalist (or any reader), I’ll rebut it.

    From your reply and these two posts, it doesn’t sound like you have much considered originalism in any serious way (although I have found recently that many scholars and more than a few idiots have done so), and that’s fine; I just think that it does Biblical scholarship and jurisprudence a disservice to pay lip service to providing a gloss of originalism to the (arguably life-saving) task of Biblical understanding.

     
    • Nathan A. Rinne

      May 22, 2018 at 10:32 am

      Josh,

      “Nor does it rebut the bizarre assumption of Luther that mortal laws are “clear,” and therefore God’s “law” must be perfectly clear! Tell that to the Pharisees.)”

      Luther was a serious student of the law. I don’t think he made that remark without much thought.

      “I have yet to see a non-originalist assertion that, e.g., Katz’s “right to privacy,” even if existing within the “umbra” of explicit Constitutional verbiage, could exist without such explicit verbiage; although many hypotheses could be advanced that a Katz-like decision could be so reached.”

      I don’t see how those persons could be considered to be taking the Constitution seriously at all.

      Thanks, btw, for engaging here. I don’t doubt that I might learn something if you don’t lose patience with me due to my terse responses. : )

      +Nathan

       
      • FullCottle

        May 22, 2018 at 12:35 pm

        Luther can make any remark he wants; it doesn’t make it an apt description of law. Certainly, many laws are clear; “you must be this tall to ride” only makes sense if the measure of height is accompanying the text, but “children 12 and under get in free” seems to mean what it says, and it may also mean that children 13 and over do not get in free, but it’s certainly not “clear” (to borrow a piece from Mitch Berman).

        In fact, there are tons of judicial decisions in America alone dealing with “vague” laws, where such laws are struck for vagueness, or held inapplicable until changed. I don’t know what laws Luther analyzed, but such a terse, almost certainly overbroad generalization about the extreme clarity of “man’s law” is wrong; there’s a distinction between rhetoric and right.

        I really fail to understand the “seriousness” as originalism or constitutionalism assertion, and I think some of the bigger points raised regarding the semiotics of law in the first responsive post would be a more fruitful area to begin working through in order to bring some enlightenment to this topic.

         
  3. Nathan A. Rinne

    May 22, 2018 at 2:03 pm

    FullCottle,

    “‘children 12 and under get in free’ seems to mean what it says, and it may also mean that children 13 and over do not get in free, but it’s certainly not ‘clear’ (to borrow a piece from Mitch Berman).”

    How is that not clear? Why would you not assume that is exactly what it means, implies? It seems your example already illustrates how wide the divide between us might be.

    “there’s a distinction between rhetoric and right.”

    And the best rhetoric is based on truth.

    BTW, when Luther talks about the clarity of law, he certainly has in mind the 10 commandments — and would be eager to point out that whatever this or that culture might believe, all of their societal expectations and even laws will never really fully get away with the concerns expressed in the 10 commandments.

    +Nathan

     
  4. Nathan A. Rinne

    May 22, 2018 at 2:10 pm

    Also, note what Luther says: “…if laws need to be luminous and definite in secular societies…”

    He doesn’t say they always are. He says that it takes a lot of work to make laws that are clear, and that are meant to *not change* with the times.

    As I have noted before, writing is an act of trust. It is not an act of trust like verbal communication with one’s fellows is an act of trust, for here one may correct others if misunderstood – that is, if one can be present. Writing, in one sense, would seem to secure the ongoing presence of the author. This however, is not the whole story. The act of writing presumes the presence of another who can be trusted to use the tool in a way that is responsible – that is making every effort to understand that the intentions of the author are understood as he would have intended and then applied in ways that are appropriate. Writing as an act of trust does not presume that all those who read can be trusted, but that there will be some who will make every effort to make sure that proper interpretation happens. Of course, authors can also take precautions themselves, writing in language that is clear and that takes into consideration not only other cultural contexts to the extent that they know about these, but also a particular breed of intellectually-inclined persons whose highest desire seems to be denial that there are some things in life that cannot be changed by our human interpretation, and our power to manipulate in general – through the other various tools they use to secure their version of reality.

    +Nathan

     
    • FullCottle

      May 22, 2018 at 3:13 pm

      The sign regarding kids getting in free is not “clear” insofar as it does not necessarily, explicitly state that children over 13 must “pay,” or that “adults” over 13 must pay, or what it considers “children” – most people would say it SEEMS that the meaning is “people who are 12 years or younger are children, and must get in free; children who are not under 12 and any adult, whatever that term may mean in this society, do not get in free;” the fact that it has expressed a category as to who may enter for free does not, however, enjoin any other category from such access. And again, as I said about Fish’s sign, it may not “mean” that at all because there may be nothing to accompany the sign (consider the classic teen movie angsty boy bedroom door bearing the “DO NOT ENTER” sign, which appears at first pass more ironic than it does “meaningful”).

      “all of their societal expectations and even laws will never really fully get away with the concerns expressed in the 10 commandments” – I do not know what this is saying – “get away with” the actions proscribed, or escape the “spiritual law” underpinning the Ten Words?

      I think it is cheating to ascribe to Luther that he is only talking about a conditional “if” world with regards to secular laws; according to your excerpted passage, he actually says such laws are actualized (unless we read “and such laws” as more of a continuation of the “if” conditional, in which case his follow-up that God’s “divine law” must be perfectly clear actually says nothing, because the “if” conditional wasn’t met). So either Luther is saying “well, man’s laws should be clear, and God did give us such man’s laws, therefore God’s divine laws must be super clear,” which is a bad assumption and a huge argument about two things, clarity of man’s law and the divine dispensation of such laws, or he is saying “to the extent man’s laws are not clear, and/or are not provided by God, then God’s laws don’t have to be clear, either.” Cool, thanks man. That’s exactly what I think about law: they don’t need to be clear.

      I concur with you that readership should engage in “good faith” readings of texts, and that there is a cottage industry of “bad faith” readings. I don’t think that this reflects into originalism or non-originalism in any meaningful way, either. Originalism, such as it is, tends to only be useful as a literary / lexicographic technique of binding authoritative texts, and not much else – critical reading can be useful to delve into why we assume originalism is viable as such a technique, and to the multiplicity of meanings and extrication one can derive from non-authoritative texts.

       
      • Nathan A. Rinne

        May 24, 2018 at 2:42 am

        FullCottle,

        Re: an answer to your first paragraph, I have nothing more to say. I repeat my previous comment about the sign.

        ““all of their societal expectations and even laws will never really fully get away with the concerns expressed in the 10 commandments”

        Sorry — it should say “fully get away from”.

        3rd para: the point is that if man recognizes the need for clear laws and strives for such, how much more so God?

        “…critical reading can be useful to delve into why we assume originalism is viable as such a technique…”

        Sigh. Different worlds.

        +Nathan

         
      • FullCottle

        May 24, 2018 at 1:22 pm

        You just said that you think readers need to have good faith when engaging with a text. It looks like comments like “sigh different worlds” is a bit shy of the mark, no? Terseness is one thing, Professor. You still haven’t really come to the defense of originalism yet – you’re spending your time on ancillary remarks. That said, your treatment of the ancillary remarks is noteworthy of the mind at work.

        1) You didn’t “say” anything about the sign. You just committed the text equivalent of bugging your eyes out at the idea that a sign which says “children 12 and under get in free” may not have what is called a “pragmatic implicature” that anyone who is not under the age of 12 must pay. Let’s try this one – “He who shall not work shall not eat.” If this was a law, do you think it means that the community must starve a man who does not work? Must imprison him in order to effectuate the injunction? Or that if he does not work, he will not have the right to participate in community dining experiences? Perhaps even the scavenge of the world will avoid him like the grapes and water did Tantalus? It SEEMS to say one simple thing, right? But certainly it cannot MEAN all of these things. Now for the “pragmatic implicature” (which entailed one of the meanings I just listed) – does such a law bar anyone else from feeding the man? It doesn’t say so, does it? Does it apply to invalids? To the ill? Or just to able-bodied men? Not to women? Not to children?

        In other words, does a text which does not cover the full ambit of prohibitions and permissions not cover certain prohibitions or permissions? Is Moses the murderer to be condemned under the laws of God or of Egypt? is third-party defense an exception to murder, or a defense? (And if “even Egypt” outlawed murder, whoopdeedoo for the Israelites deciding to add that one to the list of no-no’s, too.)

        2) What does it even mean to “get away from” the Ten Commandments, and what does it matter? Most communities don’t follow YHWH, and most people seem okay with paintings and sculptures of things under heaven these days, and have long before the Hebrews got lost walking 130 miles across the Sinai.

        3) If Luther’s point with his remark on laws’ clarity is that “God” recognizes the need for clear laws, I’d love to know how he comes to assert the mind of God on this subject. This is pretty obviously a bastardization of Anselm’s atonement.

         
  5. Nathan A. Rinne

    May 29, 2018 at 1:51 am

    FullCottle,

    Hopefully, I’ll get to your comment soon. Little time right now.

    +Nathan

     

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