On June 28, 2024, the United States Supreme Court upheld state and city-level bans on sleeping in public spaces—effectively, laws against homelessness. In his majority opinion for Grants Pass v. Johnson, Justice Neil Gorsuch wrote that the local ordinance in Grants Pass, Oregon did not violate the 8th Amendment’s prohibition on cruel and unusual punishment. Nor did it contravene the Court’s ruling in Robinson v. California, which had ruled that laws punishing people based on status were unconstitutional. As Justice Gorsuch wrote: “Public camping ordinances like those before us are nothing like the law at issue in Robinson,” since they merely outlaw sleeping in public, not homelessness itself.

Rulings like Grants Pass v. Johnson highlight problems concerning the letter and spirit of the law. Where the letter of the law merely allows for fines on rough sleeping, its spirit—as articulated in Justice Sonia Sotomayor’s dissenting opinion—is something more radical: a criminalization of poverty and denial of basic human needs. “Sleep is a biological necessity,” Justice Sotomayor wrote, “not a crime.”

To understand how rulings like Grants Pass become possible, it’s helpful to consider how the distinction between letter and spirit operates not just in law, but in language itself. In his book Of Grammatology, philosopher Jacques Derrida treats this distinction as fundamental to how signs—written and spoken—come to signify beyond themselves. If the spirit of the law operates as a kind of eternal interpretive preference, a living intention that persists within the sign, then it’s important to ask how this intention relates to the sign’s materiality—its letter. The spirit must exceed the physical sign while depending on it for its existence.

The letter/spirit divide is as old as the law itself. For as long as laws have been constituted in language, questions have emerged about the limitations of the spoken and written word, and how the intended effect of the law can be thwarted by its exact wording. But the problem works both ways: as we see in Grants Pass, the lettering of a law can provide access to a spirit—an unspoken intention—that cannot otherwise be articulated (i.e., the criminalization of homelessness).

From the time of St. Paul—who declared in 2 Corinthians that “the letter kills, but the spirit gives life”^[1]—spirit has been taken as the privileged force at work within the letter. The letter’s role is often seen secondary: constraining the spirit, reducing the law’s intention into a narrow, historical edict rather than a positive expression of original desire. This understanding extends beyond jurisprudence to everyday rules, asking us to consider the hidden intention prior to the rule itself.

However, Derrida’s analysis reveals how this supposed opposition is actually a form of mutual dependence. The letter does not simply constrain the spirit; it is the very condition of the spirit’s possibility. Without the letter’s material inscription, there would be no way for the spirit to persist or transmit itself. Yet the necessity of inscription introduces a fundamental instability into the law’s meaning. The letter must be able to function in the absence of an originary preference; thus, it can always be interpreted otherwise than intended.

This notion—that the law must be emptied of originary preference to function as such—is central to Derrida’s essay “Before the Law.” He argues that to be invested with categorical authority, the law must be without history, genesis, or possible derivation. Much like signs which must be free of specificity to become iterable marks, laws obtain their own iterability only when they are free of an original intention. Without that freedom, the law is merely preference.

But this raises a crucial question: If the law must exist without origin or intention, how can it be said to possess a spirit in the first place? How could Justice Sotomayor argue that the spirit of the Grants Pass ordinance amounted to a criminalization of poverty if, as Derrida contends, the law must be without origin or spirit?

The answer lies in understanding how the law relates to justice. In his essay The World of the Enlightenment to Come, Derrida writes that: 

“…there can be no justice without an appeal to juridical determinations and to the force of law; and there can be no becoming, no transformation, history, or perfectibility of law without an appeal to a justice that will nonetheless always exceed it.”^[2]

In saying that the law can have “no becoming, no transformation, history, or perfectibility” without justice, he appears to admit what before was inadmissible, that the law does express, in some sense, a history and a “perfectibility,” an implied mission or originary intention that structures it and is its raison d’etre. So what Derrida here calls “justice” is clearly what is elsewhere called “spirit.” The spirit of the law is justice. 

But a vital distinction is in order: justice structures the law, but it does not presuppose it. The law can transform through its “appeal to justice,” but it does not owe its existence to justice. The letter is structured through its appeal to justice, which “will nonetheless always exceed it.” Any attempt to positively clarify the structural force that shapes the literal law—its spirit, justice—will invariably result in a law, thereby draining justice/spirit of its constructive capabilities.

To understand how the law captures—but always betrays—justice, we need to consider that rather than expressing an original preference or intention, the law instead marks out a conceptual territory for possible transgression. The law that forbids sleeping in public parks is also the law that forbids being homeless; who sleeps outside besides the homeless? Individual laws become metonyms for larger domains of transgression, demarcated through unending political, legal, and cultural discourse—in other words, through the shifting relations of power. The instability arising from this structural ambiguity makes possible the criminalization of that which could not otherwise be criminalized: the state of being homeless.

As Walter Benjamin notes in “Toward the Critique of Violence,” this presents a worrying conundrum: 

“A human being can transgress them [laws] unawares and thereby succumb to expiation [der Sühne verfallen]. For this encroachment of law, summoned by the violation of the unwritten and unknown law, is called expiation, as distinct from punishment. But with whatever misfortune expiation may befall its unsuspecting victim, its occurrence is, for the purpose of law, not an accident but rather fate, which here presents itself once again in its methodical ambiguity.”^[3]

If the law necessarily forbids more than it literally describes—as Benjamin points out—how can you ever be sure of your own innocence? You cannot. This conceptually expansive remit of the law is not “an accident but rather fate.” It is the “methodical ambiguity” of the law—the tendency that stems from the nature of the sign itself. No amount of remediation or reform will correct it.

In linking together Benjamin’s “methodical ambiguity” with Derrida’s conception of the letter and spirit, both possibilities and dangers for real-world justice emerge. As seen in Grants Pass, this haunting enables the criminalization of states of being that could not otherwise be outlawed. The law’s spirit becomes a tool for expanding its reach beyond its letter.

But as much as this ambiguous spirit creates possibilities for repression and marginalization, it also might allow for more inclusive and equitable instantiations of justice. If laws are structured by absence, by their relation to what has yet to be articulated, then a path to justice emerges not just through better laws, but through better attention to what exceeds them. Justice Sotomayor’s dissent exemplifies this approach. Rather than trying to access an original intention behind the anti-camping ordinance, her dissent highlights how the law necessarily points to what lies beyond it: to the criminalization of basic human needs, the right to exist in public spaces, and the dignity of the poor. Understanding how letter and spirit structure one another can help us resist the abuse of this “methodical ambiguity,” while harnessing its instability for more inclusive forms of justice.

^[1] 2 Corinthians 3:6 (NIV)

^[2] Jacques Derrida, Rogues: Two Essays on Reason (Stanford University Press, 2005), 150. 

^[3] Walter Benjamin, Toward a Critique of Violence, ed. Peter Fenves and Julia Ng (Stanford University Press, 2021), 56.