Gorsuch and Originalism: Some Critiques from Logic, Scripture, and Art

(This blog combines, expands, and end-notes two prior blogs)

Neil Gorsuch? Originalism and the Ten Commandments

Current Supreme Court nominee Neil Gorsuch claims that judges should “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be ....” On its face, this is at best an odd claim. Laws are generally forward looking in their desire to govern future behavior. And even if we could always focus back to determine legal meaning, why would we want to disconnect meaning from ongoing life in such a way? Why, for example, should the absence of email in George Washington’s day mean our modern use of email isn’t covered by our modern notions of “speech”? Excluding email from “speech” today would be silly and we have refined “speech” to include email in both law and in life. Of course, if we refine meaning for “speech” and “email,” why shouldn’t we do the same for other things in other contexts as they change with time? It’s hard to see how Originalism’s odd backwardness isn’t fatal from the outset.

How the "Ten" Commandments Refute Originalism & Fundamentalism (With Some Help From Herod, Caiaphas & Ahab's Additions to "The Apology Box")

Conservatives often like to claim that texts speak for themselves.  A review of the Ten  Commandments is an easy way to see how such claims are false.  First, such a review nicely shows that we must interject our own judgment even before we start reading a text because we first have to decide what the text is.  When we look for "Ten" Commandments in the Bible, we won't find such a neat list.  Instead, we'll find two places in the Bible (Exodus 20:1–17 and Deuteronomy 5:4–21) which support such a list though we could come up with a different number depending on what we expressly include (for example is not bowing down to other gods included in not putting other gods first or is it a separate command?) and depending upon how we group what we find.  The number 10 is thus in that sense arbitrary.  

Second, once we've used our judgment as to the content and number of the list, reading the commandments still requires much interpretation.  For example, read literally they say that we cannot kill.  That would mean we could not cut down a tree much less kill a wild beast attacking us.  Of course, no reasonable person would take these words that literally and thus no honest person who is reasonable would claim we don't have to use our minds and hearts when we read a text.  Instead, what we generally want to do when reading the words of others is to figure out what the speaker meant by those words.  This involves engaging in what philosophers of language call pragmatics, a topic that I have written about elsewhere.  Have Ahab, Herod, and Caiaphas really tried to understand and follow speaker meaning in the poems that follow? 

Third, the Ten Commandments also remind us of another wrinkle in cross-language cases.  The Commandments are in an ancient language that most of us cannot read.  We must thus rely on translations, and translations also involve judgment and often are erroneous or questionable at best. Anyone who tells us that we can and should take a translation literally and without question is thus wrong on multiple levels.