The Court’s Holy Writ: Ancient Command Structures in Modern Jurisprudence
The Supreme Court’s May 16, 2025, ruling on the Alien Enemies Act (AEA) exemplifies the linguistic and philosophical architecture of command structures that began with “Thou shalt not” prohibitions in ancient religious texts. The distinction between negative commands (“Thou shall not”) and positive directives (“you shall facilitate”) manifests in the Court’s ruling, which creates a modern decalogue of procedural rights through a careful balance of prohibitions and affirmative obligations.
Biblical commandment structures demonstrate a clear preference for negative formulations. Eight of the Ten Commandments begin with “Thou shalt not,” representing what scholars call “factual negation” in Hebrew grammar. This negative structure isn’t merely stylistic but is essential in moral guidance. George E. Mendenhall, a renowned Old Testament scholar, explains that “a negative prohibition, by its specificity, singles out just one behavior as off-limits. Other options remain open.” This insight reveals the philosophical rationale behind negative commandments: they precisely identify prohibited behaviors while preserving freedom in all other respects.
The 613 commandments (mitzvot) in Jewish tradition comprise 248 positive commands and 365 negative prohibitions, meaning approximately 59.5% of divine commands take the negative form. This predominance of negative commandments established a lasting template for legal directives that continues to influence modern jurisprudence.
“Thou Shalt Not Summarily Remove”: The First Commandment
The Court’s primary negative injunction mirrors the biblical preference for prohibition over-prescription. As captured in the initial description, “Thou shalt not summarily remove under AEA” establishes a clear boundary that preserves due process while allowing flexibility in implementing that process. This negative structure reflects the virtue of negative specificity – prohibiting only what undermines constitutional rights rather than micromanaging administrative procedures.
Both negative and positive commands operate within what linguists call “deontic modality”-language that indicates whether a proposition is obligatory or permissible according to normative standards such as law, morality, or convention. Deontic modal expressions evaluate propositions against “some standard of ideality,” exactly what the Court accomplishes through its prohibitory language.
“Nor Deny Habeas Rights”: The Second Commandment
This prohibition on denying habeas corpus rights carries the weight of constitutional scripture. The Court’s “thou shalt not” approach to habeas corpus exemplifies how negative commands establish non-negotiable boundaries around fundamental rights. Negative commands in the Bible “precisely identify prohibited behaviors while preserving freedom in all other respects” – here, preserving the essential freedom to challenge detention.
“No Removing Class Members Till Fifth Circuit Speaks”: The Third Commandment
This temporal prohibition demonstrates how negative commands can create procedural safeguards through restraint. The Court’s order that no removals proceed until the Fifth Circuit reviews the case illustrates the same principle found in biblical prohibitions: establishing clear boundaries while preserving administrative discretion within those boundaries.
In legal contexts, the distinction between negative and positive commands manifests in the difference between prohibitory and mandatory injunctions. A prohibitory injunction “forbids a party from performing an act” or “seeks to preserve the status quo,” while a mandatory injunction “directs a person to perform certain acts.” Courts typically show greater reluctance to issue mandatory injunctions, granting them only in “extraordinary circumstances” or when the “facts are clearly favorable toward the moving party.” This preference echoes the biblical tendency toward negative commands, suggesting that prohibitions may be inherently more straightforward to enforce and less intrusive.
“Notice Must Be Clear and Timely”: The Fourth Commandment
This affirmative obligation shifts from prohibition to prescription, illustrating how positive commands become necessary when mere restraint is insufficient. The Court’s insistence on clear and timely notice parallels the minority of biblical commandments structured as positive obligations. A mandatory injunction must be “least oppressive while still protecting the plaintiff’s rights,” indicating the greater burden and scrutiny placed on positive commands in legal contexts.
Christian scripture similarly categorizes commands into negative (what not to do) and positive (what to do). Interestingly, the negative commands “are basically canceled out by obedience to the positive commands,” suggesting a complementary relationship between prohibitions and affirmative duties-exactly what the Court attempts to accomplish in balancing its prohibitory and mandatory directives.
The Language of Authority: From Stone Tablets to Legal Briefs
The evolution from biblical prohibitions to modern judicial directives reveals the enduring power of command structures. The ruling demonstrates both the “thou shall not” negative commands predominant in religious texts and the “you shall facilitate” affirmative obligations necessary for administrative governance.
The Court’s order – with its blend of prohibitory and mandatory language – exemplifies “the art of command language that lies not merely in what is required or forbidden, but in choosing the most appropriate formulation for each specific context.”
“Obey, or Face Justice”: Divine and Judicial Enforcement
The concluding warning about consequences for disobedience completes the parallel between biblical and judicial commands. Just as divine commandments carried supernatural penalties, the Court’s orders carry the weight of contempt proceedings. This enforcement mechanism transforms abstract principles into concrete obligations, ensuring that both negative prohibitions and positive duties translate into real-world compliance.
Ancient Wisdom in Modern Governance
The Supreme Court’s AEA ruling demonstrates how linguistic and philosophical patterns of ancient command structures continue to shape contemporary governance. The preference for negative commands when establishing boundaries, coupled with positive obligations when procedural justice demands action, reveals the enduring wisdom of balanced command structures.
The “thou shalt not” formulations dominating biblical texts find their modern expression in judicial prohibitions against administrative overreach, while the necessary “you shall facilitate” obligations ensure that mere restraint doesn’t undermine justice through procedural neglect. This judicial decalogue – prohibiting summary removals, protecting habeas rights, requiring adequate notice, and threatening consequences for noncompliance – shows how ancient command structures remain essential to preserving both order and liberty in democratic governance.
