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

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 10^th 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.

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

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.