During my fairly short tenure in the legal profession, I have, quite unfortunately, had occasion to be called a racist, a homophobe, a chauvinist, and the list goes on. I do not wish to be perceived as a victim, but I know that I am most assuredly none of these, which leaves me to wonder why this sort of thing continues to happen.

The first possibility is that those who spew out these kinds of ad hominem attacks are employing such substantively empty rhetoric either to garner support from an audience observing the discussion (when you cannot effectively attack the position, attack those who champion it), or simply to make themselves feel better (or both). I am confident that the irrelevant, inappropriate, and utterly jejune nature of such tactics speaks for itself. At the same time —  at least as an initial matter — I cannot necessarily harbor ill will towards those who resort to such behavior. There does exist a second possibility, which is that my positions have been (unintentionally) misinterpreted by others — perhaps even in ways that would be quite bigoted in character if those perceptions were even remotely accurate.

It is not as though this latter possibility is much of a longshot. Indeed, if the subject of a given discussion relates to the mechanics and nature of American public law, to say that there exists a gross lack of understanding among both the general public and many members of the legal profession would be a spectacularly vast understatement. Irrespective of its many causes, it is a pollution that has, and will continue to, deteriorate even the most basic foundations of the American legal system. In an age where polemics and hyperbole seem to be the rule and not the exception, I say this without any tenor of exaggeration. Our slightly-over-two-centuries-old experiment is in serious trouble.

Robert Bork once said something to this effect: Law is an intellectual system, and if it is to progress, it must be through intellectual exchanges. What he meant is that the law is purely a societal construct, with its substantive content limited only by the boundaries of imagination. However, it should go without saying that for the substantive law to be at least minimally effective or perceived as legitimate, it must be both created and administered rationally and logically. It seems to reason, then, that the law ought never to embrace any element which would be incapable of surviving logical analysis.

One would think.

If this is the baseline standard by which our jurisprudence is to be assessed, it seems eminently clear to me that the ball has been dropped over and over and over again. There are, to be sure, many sources to which one can allocate blame; nonetheless, it is more important at this juncture to first acknowledge the problem itself, which is that each of these sources has contributed to a reality in which one cannot even expect proper logical reasoning to yield answers which will ultimately be thought of as correct.

To illustrate this state of affairs, consider first the following three premises:

1. Within any given language, it would be considered logically deficient for one to claim that a given word (or group of words) means something other than its given meaning (i.e., that which is generally understood and/or accepted by speakers of that language). Of course, there do exist limited contexts in which deviation from this “default” state of affairs would be warranted (e.g., code used within the military). However, it is still fair to say that any such subsystem could not possibly support interpersonal communication with any degree of efficacy unless the relevant deviations have first been successfully communicated to both the speaker(s) and listener(s) utilizing it — and because, prior to that point in time, the aforementioned “default” mode of interpretation would be one’s only frame of reference by which to understand these deviations, the “default” mode of interpretation will always serve as the vehicle by which this precondition is met.

2. Words cannot possess any given meaning in the abstract; rather, they acquire meaning only after they are given context by being ordered with other words.

3. As Professor Gary Lawson has stated, public law assumes the form of public documents that are addressed to a public audience. (For our purposes, “public law” means constitutions, statutes, and treaties.)

Taking these premises together, the conclusion that we should generally interpret public law in accordance with the generally accepted meaning of its component words seems rather obvious. However, many people (I daresay far too many), in interpreting the public law, have deemed it completely acceptable to engage in precisely the opposite practice (i.e., reading words to mean something other than their actual meaning, and for no valid reason). Examples abound, though I think a (relatively) recent and rarely-mentioned Supreme Court case, General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581 (2004), illustrates the point rather well.

The Age Discrimination in Employment Act of 1967 (“ADEA”) generally prohibits discrimination in covered employment “because of [one’s] age.” Not all individuals, however, qualify for the Act’s protection, in that one’s claim cannot be considered actionable unless one has first reached the age of 40.

Now, one would probably assume that this law is virtually always invoked due to allegations of discrimination against the older in favor of the younger, and not surprisingly, the available evidence bears out this hunch. I did use the phrase “virtually always,” however, because an interesting situation arose when an employer (General Dynamics), in essence, terminated certain health benefits except as to qualifying workers of at least 50 years of age. A group of employees affected by this change, who were at least 40 years old (and thus protected by the Act) but under the age of 50 (and thus stripped of the health benefits granted similarly-situated older employees), alleged age discrimination and ultimately brought suit under the ADEA.

Having met the ADEA’s age requirement, the only legal question remaining was whether the employees were actually discriminated against “because of [their] age.” This is most assuredly not rocket science. Indeed, assuming (as the procedural posture of the case required) that no other, age-neutral basis could be offered for the employer’s actions, how else could it possibly be described? To be sure, the question was, in fact, stipulated to by the parties — in other words, the Defendant had already conceded that it took its discriminatory action against the employees because of their age.

Inexplicably, however, the employees lost the case.

Yes, you read that correctly — they lost. (6 votes to 3.)

The majority did provide an explanation for this seemingly impossible outcome, in an opinion by Justice Souter that was so intellectually bankrupt, it is quite likely that my IQ has been permanently diminished for having read it.

The majority first claimed that the meaning of “age” in the phrase “on the basis of age” was not “chronological age” (as I had presumed), but “the state of being old; old age,” as when one uses the expression “his hair was white with age.” Accordingly, it asserted, the Act only protects against discrimination on the basis of “old age.”

This is quite curious. (“Curious” is a word we use in the law when, for example, a court takes an utterly ridiculous, unfathomable position, and we want to be polite about it.)

Things were, however, about to become even more bizarre, because the majority could not actually end its analysis there — that gem of linguistic contortion, standing alone, would not necessarily hand the case to the employer, since the employees could still be considered victims of discrimination on the basis of their “old age” (i.e., 40 to 49 years old).

Let me be clear: I am not personally saying that 40 years of age is old. Congress, however, absolutely did say so. We know this because the Act applies to those between 40 and 65 years of age, and if 40 did not constitute “old” for purposes of interpreting the ADEA, any such interpretation would fail to protect many to whom the ADEA explicitly applies. (It would also, incidentally, leave unanswered the question of where the line between “old” and “not old” is properly drawn when applying the ADEA.)

The majority, therefore, was forced to stretch the bounds of credulity even further. It proceeded to claim that, by using this “old age” meaning of “age” (which, again, it obviously did not), the Act actually prohibited discrimination only “against the older (in favor of the younger).”

What?!

Are you wondering how the majority got there? It was certainly my initial reaction as well. Two words: judicial legerdemain. After all, when weaving a conclusion out of whole cloth, why waste time with such trivial matters as premises? One might think the expression “judicial sleight-of-hand” would fit nicely here, but to me, that term implies some minimal attempt to deceive the audience; this was actually the Court taking a coin, openly placing it into its right hand, then immediately telling us (with the coin still in full view in its right hand), that the coin was now in its left hand. Voila.

(Of course, there will inevitably be a small number of overly-polite audience members that would applaud awkwardly at such a thing, but that does not change the fact that nobody would actually believe the coin to be in the left hand.)

The remainder of the majority opinion did not involve the text at all, so I will not recount it in painstaking detail here. I will, however, provide the reader a brief “sneak preview,” if only because the Court was about to do something unprecedented. (Its textual “interpretation,” while immensely idiotic, was by no means the first time the Court had made such a grievous error in judgment, so that was not actually the unprecedented part of the opinion.)

The majority next looked to the Act’s legislative history. I should note at the outset that for many reasons, I do not believe legislative history can ever be admissible evidence in interpreting the public law (except to the extent that the content of the legislative history is being used to help prove the existence of a generally, or “publicly,” understood usage of the word(s) at issue by speakers or writers of the relevant time period). Accordingly, the materials in question should not have been admissible for the majority’s intended purpose, but that makes it no less amusing to note that the legislative history directly relevant to the question at issue was scant— essentially consisting only of a floor statement by a single Senator to the effect of “the Act means what it says.” Naturally, being contrary to the majority’s position, its decision not to accord much weight to this particular Act’s legislative history was less than surprising. (That is, after all, exactly what the Court does whenever the available legislative history does not support its preferred result; when it does, the legislative history is suddenly deserving of significant weight. See how that works?)

Having found no refuge in either the text or legislative history (whether it cared to admit it or not), and just when it seemed to me that it could come up with nothing crazier, the majority proceeded to do precisely that — by pulling out of its hat a never-before-seen methodology for statutory interpretation, apparently called the “social history” methodology.

A brand new, never-before-seen methodology for interpreting statutes! (How is it, then, that this isn’t considered among the so-called “landmark” Supreme Court cases, right?)

The majority proceeded to examine what it considered the “social history” of age discrimination, and concluded that because the Act was passed mainly to combat discrimination against the older and in favor of the younger, the Act, therefore, only prohibited conduct of this variety. (Interestingly (or, if you like, curiously), the majority omitted the seemingly critical step of actually defining “social history” — the phrase it had just coined — but no matter.)

I am particularly fond of the opening sentence of Justice Thomas’ dissent, which just sums things up so darn perfectly:

“This should have been an easy case.”

Justice Thomas first noted that he would have both started and ended his inquiry with the Act’s spectacularly unambiguous text, and I certainly agree. Additionally, the disturbing nature of this just-premiered “social history” methodology was not lost on Justice Thomas, who observed that the majority’s very same reasoning would, for example, exclude whites from protection against racial discrimination under Title VII of the Civil Rights Act of 1964. (While he did not mention it, it would presumably exclude males from protection against gender discrimination as well.) “One can only hope,” Justice Thomas stated, “that this new technique of statutory interpretation does not catch on, and that [the majority’s] errors are limited to only this case.”

Well, Justice Thomas, so far, so good—the “social history” methodology has not surfaced again since. (Surprise, surprise.) Yet, with cases like Cline, the Court has further demonstrated that its members are anything but predictable—they will clearly do whatever it takes, no matter how novel (and, as we saw here, monumentally silly), to reach a specific, preferred result. Rule of law be damned.

I have always believed that intellectual honesty and maturity require that one have the ability to subordinate one’s ego to the far more important concern of finding the right answer. Sadly, this quality does not seem to manifest itself in everyone. I have, on numerous occasions, been involved in discussions where others will admit that their position (represented by the variable x) is faulty, or just plain wrong, but will nevertheless say “well, I still think x anyway.” I cannot understand how one can continue to hold an admittedly incorrect position (nor can I respect it), and I am troubled that I have, and continue to see, this kind of behavior with the frequency that I do. It is disheartening indeed that our culture, apparently both within and outside of the legal profession, has become one in which pride and ego have taken on such a perversely narcissistic character — one that promotes self-delusion and irrationality over intellectual progress. The ominous result is that our society is having fewer and fewer of the “intellectual exchanges” to which Bork was referring. This is, assuredly, not due to a shortage of dialogue; in the technological age in which we live, contributions to this dialogue are only increasing with time. Rather, the dialogue is becoming progressively less and less intellectual in nature. Those who do not think this problem worthy of our society’s immediate and sustained attention fail to appreciate that it can, and does, significantly affect the lives of very real people — consider, as merely one example, the plaintiffs in Cline, who were so unfairly stripped of their health benefits. I know that when I think about the victims of these sorts of injustices, it genuinely breaks my heart.

Hearkening back to my initial query, I do, in fact, believe that I find myself on the receiving end of all the unfortunate name-calling primarily because my legal views tend to be greatly misunderstood. I see three possible reasons for why this is so:

(1) a lack of comprehension of the mechanics of the methodology of original meaning textualism;

(2) a misunderstanding of certain aspects of the legal process and/or our governmental structure; and/or

(3) an unfounded and unfair preconception (and sometimes mulishly-held conclusion) that my views are biased around one or more inappropriate considerations.

To the first, the mechanics of original meaning textualism can, I believe, be far more nuanced and technical than many people realize. The process of ascertaining the original public meaning of a law’s text requires in-depth knowledge of concepts such as relevance, weight, admissibility, burdens and standards of proof (including presumptions), and canons of statutory interpretation, as well as specific rules relating to each of these. Obviously, some interpretive questions will be easier than others; however, it is manifestly not the case, as I have often seen others argue, that all original meaning textualism requires is a dictionary from the time period in which the law was passed. (I should point out that, at least from a logistical standpoint, even this part is easier said than done, as I have discovered that one is not exactly able to walk into one’s local library and immediately access dictionaries from the mid-eighteenth century.) Dictionaries can, to be sure, constitute powerful evidence of original meaning, but it would be foolish indeed to assume that they are, ipso facto, automatically due dispositive weight.

Another common, but mistaken, belief about original meaning textualism is that it will always generate only one possible solution, which inevitably leads to the argument that it renders judges nothing more than automatons. As an initial matter, I take issue with the presumption upon which this rests— which is that if the proper role of a judge were, hypothetically speaking, actually and solely to mimic an automaton, he would somehow be at all justified in departing from that role. More frontally, however, it is simply not true. Resolving an actual ambiguity in a law’s text can sometimes yield more than one plausible answer, over which reasonable interpreters can disagree. In such instances, evidence will exist supporting each answer, and it is precisely the role of the judge to weigh this competing proof and arrive at a decision as to which answer is best (i.e., the most likely original public meaning of the text in question). If two judges disagreed in their assessments, the reason(s) will be evident in their opinions, from which we can then determine for ourselves not only the best answer, but also whether these judges are operating within acceptable bounds.

We must not lose sight of the fact that, in the end analysis, all the judiciary has to support its claim to legitimacy are its opinions, and our collective belief in that legitimacy is absolutely essential if there is to exist enough popular will to ensure the enforcement of its judgments. It will certainly not serve to compromise the legitimacy of the judiciary in my view, nor is it at all likely to do so in the eyes of others, if a judge’s answer — even if thought to be less likely than another — appears to have been arrived at through a logical and rational reasoning process. When this occurs, we are warranted in continuing to presume that our judges are performing their duties in good faith (even if imperfectly). And while humans may not be perfect in numerous respects, automatons are not even capable of making these types of judgments at all, because they require analysis that is fundamentally qualitative, not quantitative, in character. Accordingly, at least until such time as they possess this brand of human intelligence, I do not foresee there being any less of a demand for human judges.

The second possible explanation centers around misunderstandings regarding our legal process and/or governmental structure. It would be prohibitive in such a small amount of space to adequately relate even the misunderstandings I most frequently encounter. As an example of one such misunderstanding, in discussions I have had regarding Roe v. Wade, 410 U.S. 113 (1973), I have sometimes been able to make headway with its supporters by pointing out that overruling Roe does not, in and of itself, make abortion legal or illegal; rather, it merely places the issue of abortion policy in the hands of the several States, which can then each enact their own policy into their respective public law. Such policies could range anywhere from the most prohibitive, “no abortions under any circumstances,” to a highly-variable middle ground, “no abortions except when [insert condition(s) here],” to the other end of the abortion policy spectrum, “abortion on demand.” Once people on the political left realize that overruling Roe will not actually cast an ominous “shadow of evil” over the entire country (and certainly not in Massachusetts, where abortions would undoubtedly be readily available), they tend to become at least somewhat more receptive to actually discussing the issue of the legitimacy of the Court’s decision on the merits.

Taking this same dialogue just a little further can illustrate another rather common misunderstanding of our legal and political structures. I would first speculate that were Roe to be overruled, Massachusetts would not seem likely to significantly prohibit abortions, but South Dakota may (and, several years ago, did) pass legislation outlawing abortion except in very limited circumstances. In response, I would be asked something to the effect of, “But what about the women in South Dakota? They have to live there.”

I am, at this point, forced to expose a rather harsh reality (the reactions to which, in my experience, appear eerily similar to those likely to occur in breaking to a child the news that the Tooth Fairy is not real), which is this: If one does not like the legislative landscape within one’s own state, and considers it truly intolerable, one has only two choices: (1) start lobbying in an effort to change the law; or (2) move to another state. That is it. Of course, excuses always abound for why one might not be able to do either of these things successfully, but I try to make it clear that those still remain the only two choices. I also make an effort to point out that were any other choice to exist, it would inevitably mean the functional equivalent of rule by the minority, which is obviously not a workable situation. “You do not have the right to do anything you want, wherever you want to do it,” I like to say. “Sometimes it’s going to have to be one or the other — unless, of course, you choose to act unlawfully, in which case you’d probably want to avoid getting caught.”

I am always willing to help others understand the above concepts—to wit, the proper allocation of power in a federal system, and the “Madisonian” nature of our form of representative government—or any others, because many of them are absolutely fundamental if one is to be properly educated on this subject matter. However, what initially appears to be a deficiency in one’s knowledge of such concepts sometimes reveals itself to instead be an unwillingness to accept a premise (or, more often the case, premises) that must be taken as true if any worthwhile dialogue on our legal and/or political system is to be had. Nearly all of my legal and political views are dependent upon the unconditional acceptance, however grudgingly, of the numerous indisputable features and characteristics of our legal and political system, and although I am willing to occasionally indulge others in their desire to venture outside of these parameters, I find far more interesting and important the myriad questions arising within them (on which there is already more than enough for me to chew).

I will not attempt here to create an exhaustive list of the features or characteristics I would consider “indisputable,” although I will provide a couple of examples. One cannot, for instance, seriously dispute the requirement that amending the text of the Constitution of the United States take place exclusively through the processes provided in its Article V. Nor could one reasonably believe that a state government’s exercise of power over any person or thing within its territorial boundaries can be subjected to nonconsensual interference from any source outside of that state’s governmental structure, unless contrary to a valid exercise of power by the federal government (which powers are, as another such “given” prescribes, limited in their nature).

One who chooses not to accept such types of “given” premises is, by declining to engage in logical and rational dialogue on the issues themselves, more than likely to wind up personally attacking those who do accept them— and usually for doing exactly that. Consequently, for believing that the text of the United States Constitution does not, when interpreted according to its original public meaning, provide for the right to abortion, I am called a “fascist” (again, merely for advocating adherence to the rules of our system of representative government) by those who believe, for example, that Roe was properly decided and/or a “step in the right direction” for our nation. Well, I may very well be a fascist, then (albeit a fascist possessing an unwavering commitment to what is effectively the antithesis of fascism), but at least I know that I am not obtuse enough to believe either that Roe was correctly decided, or that it was anything other than ruinous of our commitment to the rule of law. Surely, nothing with that kind of cost attached could ever take our country in the right direction—and make no mistake: the societal costs attached to Roe and its progeny have been huge.

The third possible explanation I mentioned can be reduced to the perception that my legal views amount to nothing more than post hoc justifications to promote biases against classes of people — biases which I am therefore presumed to hold. Hence, I am:

  • “Racist” for my belief that the Civil Rights Act of 1964 is largely, if not completely, in excess of federal power, or that Bolling v. Sharpe, 347 U.S. 497 (1954) (reading the Fourteenth Amendment’s Equal Protection Clause back into the Fifth Amendment’s Due Process Clause in order to extend the desegregation mandate in Brown v. Board of Education to the District of Columbia), was just plain ridiculous;
  • “Chauvinist,” “misogynist,” or the like, for my belief that, whatever it ultimately means, the Fourteenth Amendment does not at all prohibit discrimination on the basis of gender;
  • “Homophobic” for my belief that laws criminalizing homosexual relations (regardless of whether they also criminalize identical heterosexual relations) do not run afoul of any provision of the United States Constitution;
  • A “Nazi” for my belief that none of the provisions of the Bill of Rights either apply to the states or were somehow “incorporated” into the Fourteenth Amendment (except to the extent that they explicitly appear in the text of that Amendment—for example, the Fifth Amendment’s Due Process Clause);

and the list goes on. However, one who truly understands my views would never make these kinds of accusations, because it is so obviously unfair to attribute the consequences of the interpretive task to the interpreter himself. When original meaning textualism is properly employed, the interpreter’s sole focus is on objectively ascertaining the original public meaning of the substantive content of an already-enacted law; (s)he may, therefore, rightly and properly direct exclusive responsibility for the choice of that specific content to those responsible for the law’s passage (e.g., the legislature). To loosely analogize, the interpreter is merely a messenger of sorts — and, as we all know from the old adage, it is never appropriate to shoot the messenger.

A colleague once remarked to me that it would seem to strengthen one’s credibility if one were able to demonstrate that one’s commitment to original meaning textualism not only failed to further one’s own political views, but that one’s commitment to original meaning textualism would actually be detrimental to one’s political views. An example would be a person (whom, to dispel any sexist overtones, we will androgynously call “Kris”) who happens to be radically “pro-choice,” but nevertheless is an original meaning textualist and therefore believes that Roe should be overruled. Such a dichotomy would certainly appear to render Kris unquestionably principled.

Nonetheless, as I see it, Kris’s political views are wholly irrelevant — and therefore ought to be considered off-limits — in a debate over the legitimacy of Roe, or any other legal question. Assessing one’s commitment to principle in interpreting the public law through original meaning textualism should not depend upon the frequency by which a dichotomy like Kris’s occurs over a range of other topics, nor should it require that Kris first adopt and/or disclose any personally-held political position(s). After all, Kris would be no less of an original meaning textualist if (s)he instead happened to be radically “pro-life,” advocating for legislation making abortion illegal under any circumstance.

A far better way, it seems, to assess whether a given interpreter is truly committed to original meaning textualism would be to ignore that individual’s personal political views, and instead examine how consistently the methodology is properly employed in cases involving identical or substantially-related political issues. Consider, as examples:

(1) A Nebraska state law barring “partial-birth” abortion; and

(2) A federal law barring “partial-birth” abortion nationwide, allegedly supported by Congress’ power under the Commerce Clause.

Utilizing original meaning textualism alone (and, of course, setting aside any U.S. Supreme Court precedent for the moment), there is nothing in either the United States or Nebraska constitutions which can be read to prohibit regulation of this abortion procedure; thus, the Nebraska law must be upheld as constitutional. Not so, however, with the federal law, which is quite clearly not within Congress’ power under Article I, Section 8 to “regulate commerce . . . among the several States.” Were an interpreter to arrive at either the conclusion that both were constitutional, or that both were unconstitutional, it would demonstrate that person’s commitment to original meaning textualism only insofar as the methodology furthers a result consistent with his or her own political views (here, either pro- or anti-abortion). This “fair weather” approach to interpretation of the public law does a complete disservice to those who actually take their commitment to original meaning textualism seriously. After all, if one is just going to pick and choose when one wants to follow the methodology, one might as well not bother adopting any methodology at all (instead of making the true supporters of the methodology look like frauds).

I believe that my commitment to original meaning textualism is unfailing; in fact, others have, on many an occasion, explicitly commended me for being so consistent in this regard. Unfortunately, and much to my chagrin, I have not observed this same level of consistency from even a handful of members of our federal judiciary—including among them judges who describe themselves as original meaning textualists. To cite merely one example, I cannot in any sense reconcile Justice Scalia’s views in his writings on original meaning textualism — which, incidentally, include an entire book — with the utterly specious positions he takes in the Court’s somewhat recent Eleventh Amendment jurisprudence. Make no mistake: I am an equal opportunity critic, and just as I believe in showing no mercy to judges who author opinions like Roe and Cline, I have an equally low tolerance for judges who say one thing and then do another. They ought to know better.

In the final analysis of my initial query, I think that both possibilities upon which I had speculated serve to explain all of the name-calling. Some people are likely just hurling such offensive allegations at me because they are inconsiderate…well, let’s just say “folks.” But there exists such a fundamental misunderstanding about the subject matter discussed herein, and that misapprehension has become so widely and deeply entrenched within our society, that many people simply fail to recognize how far “off the mark” they are. Notwithstanding these obstacles, I recognize that by continuing in my drive to educate others about the law, I can offer them fresh, abundant, and powerful food for thought that will, hopefully, lead them to seriously reexamine what they believed they knew about our legal system and our Constitution — and perhaps, in the process, ultimately demonstrate to them that they have fundamentally misjudged my character. Of course, the former will always be my paramount objective; the latter is merely an added bonus.

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