The Textualist’s Dilemma On Social Media

Trigger Warning: This post gets into the weeds of interpretation. If you’re prone to headaches, do not read it. It will produce pain.

The City Journal is the organ of conservative think tank, the Manhattan Institute for Policy Research. So when it publishes about the case for originalism, you know where it’s coming from.

The Constitution, we’re told by the progressive-minded, is a “living, breathing” document that allows for such updating in the modern age. On the other side, originalists and textualists argue that the Constitution’s meaning is stable, that its words retain the meaning they possessed when they were written. The dispute has spanned more than a generation, and, with the recent death of Supreme Court justice Antonin Scalia and nomination of Judge Merrick Garland to the Court, has taken on tremendous political weight. 

Indeed, the dispute is back on the front burner with warring arguments over the meaning of “advice and consent,” and whether this is a Senate duty or a suggestion, if they feel like it.

While much of the argument is presented as if there was no legitimacy to the view that the original intent of the founders didn’t anticipate the existence of the internet, which leaves it unavailing as it fails to address the hard issues, one point it makes very well is about the significance of linguistics in law.

Or take an example from the Constitution itself. Article IV, Section Four states that America shall protect every state in the union “against domestic Violence.” The modern-day semantic meaning of the phrase “domestic violence,” Solum notes, is “intimate partner abuse,” “battering,” or “wife-beating”; it is the “physical, sexual, psychological, and economic abuse that takes place in the context of an intimate relationship, including marriage.” Yet the Framers used the term “domestic violence” to refer to insurrection or rebellion. It would be a linguistic mistake to interpret this clause of the Constitution as referring to “domestic violence” as we understand it today.

It’s a great example, given that the phrase “domestic violence” has become a ubiquitous theme these days, and yet only the terminally stupid wouldn’t admit that it meant something entirely different in the Constitution.  And that leads to a larger problem, that has also become ubiquitous: how the redefinition of words distorts our ability to understand and discuss the law.

This challenges the way in which moral progress is often characterised. For example, it baffles many of us today that although the constitution of the United States decreed that all men were created equal, it took so long for them to realise African-Americans were men too. But this is to fall for the myth that the values we now uphold already existed before we coined terms for them, or at least changed the scope of the terms we had. As Taylor puts it: “We persuade ourselves that equality always meant this, and that the minority who controlled things were just being hypocritical.” Moral change is therefore deeply connected with—and even partly driven by—semantic change.

Shifting from the sublime to the ridiculous, there was a battle on the twitters between lawyers and women disaffected by the verdict in the Jian Ghomeshi sexual assault trial.  The end result was this representative twit:


These twitterers refused to accept lawyers (and there were a few engaged on all sides, though the rationalization machine went batty as the lawyers were accused of being sock puppets, and the Texas Tornado, Mark W. Bennett, was accused of strealing the name and gravitas of Iowa District Court Judge Mark W. Bennett) as being lawyers, disparaged their explanations as “mansplaining,” and concluded that the law, if it fails to comport with their desires, must be broken.

They have convinced themselves that the law always meant what they feel it should mean today.  To the extent the law fails to produce the outcomes desired based on the current flavor of morality, the law is broken.  And this wraps up all problems in a nice pink bow, except that it’s wrong.

The use of language untethered from definition, a point that has been noted here with some regularity. has given rise to much of the conflict.  It’s true for rape and sexual assault, which was the particular issue at hand in the battle on the twitters. It’s true for microaggressions, and macros as well. It’s pretty much true for most of today’s current battles over political correctness.  Forces for change have humpty dumpty’d words so as to make any discussion/argument about the underlying issue difficult to impossible.

This is where textualism and presentism clash.  The textualist view is that rather than look to the Intent of the authors, we look to the words they used and rely on their meaning at the time they were written.  The presentist considers their moral view as inherently right and absolute.

What this means is that something like the three-fifths compromise, which we all concede today to have been a horrible idea, doesn’t reflect the morality of the day, but that the founding fathers were deliberate racists and, as such, are unworthy of any credit for their accomplishments.

Similarly, the notion of burden of proof is uncontroversial to lawyers, regardless of gender, as it’s a fixture of due process.  But to those for whom words mean whatever they want them to mean to achieve the outcomes they demand, the concept is broken because it fails to accomplish their desired goal.

To note that this makes any reasonable discussion of controversial issues impossible is to state the obvious.  That this problem permeates discussion of the law is similarly obvious.  This is why those with an agenda to achieve their politically correct goals foster the manipulation of language so as to render words meaningless, and to promote the fallacy that words written generations or centuries ago should reflect today’s absolutist view of morality gives rise to the stupidity reflected in the twitter argument.

Is there room to disagree about the meaning of words, about the applicability of legal concepts, about how law should be interpreted to achieve moral goals?  Sure. The law is always in a state of flux, of evolution, as the world changes and people come up with remarkably new ways of wreaking havoc upon each other.

But to ignore the definitions of words, to intentionally conflate today’s morality with that of other eras, as if there was never any differing view, produces unwinnable wars, stupider people and perpetual conflict.  Or, maybe I’m just mansplaining, so that you can ignore all of this if it doesn’t suit you.

41 thoughts on “The Textualist’s Dilemma On Social Media

  1. Sgt. Schultz

    You are an evil, malicious old men. You knew you would sucker me in wiht the trigger warning, and you knew I would get whiplash going from the density of the moral linguisitics quote to the idiocy of the twit, and you knew I would have to read it again because there’s no way I would get it the first read through, and so you knew I would exacerbate the whiplash the second time around.

    If I can figure out a cause of action, I’n gonna sue for pain and suffering.

  2. mb

    That’s too bad. I was hoping we were about to have a deep, nuanced conversation about whether judicial review was intended by the founders and whether that matters. Instead we get vapid cunts whining that other people won’t do their bidding without some reason that makes sense to us. The pathological lack of self awareness apparent in anyone who can publicly bitch about the condescension of being mansplained to, while simultaneously assuming that they hold a position of moral authority by virtue of being female is indeed disturbing. Maybe we can have that better conversation one day when the idiotic twats on Twitter have been laughed at enough to force them into a bit of introspection.

    1. SHG Post author

      You expect people to know the difference between the Declaration of Independence and the Constitution? Lower your expectations.

  3. John Barleycorn

    In the end I think it will be proven that in utero and through the age of three you were subjected to some pretty twisted  Eisenhower speach experiments.

  4. Mirriam

    I offered to womansplain and it was met with silence. The thing you said here that is true (it’s all true, though, but this thing in particular) is that burden of proof is uncontroversial to us, regardless of gender. I mean, I guess I never thought of it that way – it never struck me as something that would be controversial since it applies for EVERYONE, ALL THE TIME. While the system fails us in many ways, that’s what we have to count on no matter what. So, it shocks me every time someone thinks it’s a bad thing.

      1. Mirriam

        If all other lawyers were shocked then I would think they knew something I didn’t know and would have to review my understanding of it.

  5. Richard G. Kopf


    Since you’re discussing words, would be you so kind as to tell me the antonym for “mansplaining?” In fact, this question might be grist for a contest. Then, again, maybe not.

    All the best.


    1. SHG Post author

      The official record of antonyms does not have an entry for “mansplaining.” I, however, use “femsplaining” on occasion, but then, I’ve been called a misogynist, so my word may not be a good option.

    2. Patrick Maupin

      Since anything you say can and will be used against you, the antonym of “mansplaining” is “taciturn.”

  6. Kathleen Casey

    I “mansplained,” I guess, the burden of proof and right to notice concepts to assist fem acquaintances in understanding a rape dismissal once. They femsplained to me that I incomprehensively had moved over to the dark side, had changed over the years with my law license into a man-defender, and it obviously bothers me not at all that men rape women.

    I answered with twisted, mindless rib-ticklers and they got madder. I figured I could not engage them but I tried, to torture them. So much space where brains should be. It was fun. Your mileage may vary.

  7. RAFIV

    Well. She ultimately conceded the point:

    “….So I know perhaps the evidence wasn’t there, or that the burden of proof wasn’t met. And I don’t fucking care…. ”

    “….I don’t care if the verdict was technically, legally correct. If that’s the system, then the system is broken for women. And just watch us, in our anger, overthrow it….”

    So, it’s all about the Feelz. Due Process be damned.

    1. SHG Post author

      I had considered whether or not to parse her post, both because it’s really quite funny and it demonstrates, about as clearly as possible, the fundamental disconnect when it comes to her feelz.

      I am not an idiot. I know, it really needs stating.

      I’m far from a lawyer, and I don’t pretend to be.

      As an intelligent woman who used to write and amend laws, I’ve got a general comprehension of concepts like presumption of innocence, the burden of guilt and reasonable doubt.

      You wouldn’t know it from the Men On The Internet.

      She used to “write and amend laws”? And the disconnect isn’t because, well, she’s an idiot (because she says she’s not), but because Men On The Internet.

      So, fellas, you know what point I was making about the Ghomeshi verdict? It was nothing to do with the legal beagle debates and technical case law. I bet you’re right. Congratulations! But you are so fucking far from understanding the collective fire engulfing women at the moment, that your point is a moon of pluto. My point is the sun.

      And it gets worse from there. But to what end? Assuming she’s not an idiot, then she’s merely an irrational lunatic making empty threats of overthrowing the system if it does not satisfy her demands? It’s too pathetic for serious discussion.

      Frankly, this comment to her post strikes me as more to the point:

      I swear to Christ, if I have to listen to one more mansplaining asshole telling me I didn’t appreciate the legal nuances of why Ghomeshi deserved to walk free, I will ram his smirk down his throat.

      Blind rage, with no effort to conceal it or wrap it up in any pseudo-babble.

      1. mb

        It might be worth pointing out to her that due process, especially burden of proof, notice, and mental state is the only thing that protects a complaining witness from punishment under baseless charges of falsely reporting a crime. . . or not.

          1. mb

            You either mansplain like a boss, or you get pegged like a cuck. I can’t make your decisions for you.

            1. SHG Post author

              Nope. You do not get to dictate my masculinity. And I’ll take the rainbow sprinkles, and lots of them.

      2. Patrick Maupin

        To the end of pandering to her core constituency and perhaps raising money?

        She’s apparently the President (or Executive Director, depending on context) of Planned Parenthood of Ottawa.

        Raising money is all about the feelz.

        [Ed. Note: Link deleted, because rules.]

        1. SHG Post author

          So your speculation as to an inappropriate nefarious motive because there are two dots that bear no necessary connection is better than the cops raising the rap sheet of a guy who was killed? Come on. Don’t do that. There is no basis to connect the dots. Raising it with a question mark on the end is cheap bullshit.

          1. Patrick Maupin

            The question mark was meant to indicate it is completely baseless speculation, but it wasn’t meant as any sort of smear. Quite the opposite — certainly, in the abstract, there is nothing “inappropriate” or “nefarious” about the motive of raising money for planned parenthood, and the means of frothing at the mouth about the legal system may be ill-advised, but that doesn’t even rise to the level of manipulation we have come to expect from our politicians.

            I only offered the thought to indicate there was at least one third possibility besides the two you mentioned of “idiot” and “irrational lunatic” — not that either of those could be taken negatively, of course.

            1. SHG Post author

              Those are based in what she said, not on baseless, unconnected speculation. Come on. Don’t play a game you wouldn’t want played on anyone else.

      3. Kathleen Casey

        So I read the post. Yew. Her annoying “we” diatribe is off-topic of the legal beagle nuances, but…think she needs a padded room? It seems beyond feelz to me. My opinion and a dime will get me a cup of coffee, true, but who cares:

        “…We review past sexual experiences and even decades later, realize they weren’t consensual. Do you recognize the ice slipping down your spine as it dawns on you that you were raped? We held our own bodies in such contempt, we didn’t know we had a right to object. We assumed we were open for business, with no right of refusal. Our bodies are public space, exposed for comment, ridicule and assault.

        “We remember every time we stared blankly at the wall, hoping it would end soon. The times we hobbled to the bathroom wondering if the bleeding was normal and still trying to hide it in case it grossed him out.

        We cooked for him after, we sent flowers and risqué selfies. …”

        1. SHG Post author

          She’s would be a Billy Madison winner, if only there was any pretense at a having a point beyond being outraged.

          1. Kathleen Casey

            I haven’t seen Billy Madison ao I don’t know. But like whatshisname in the Grey Lady her “we” isn’t me.

  8. Ross

    I suppose she would think it reasonable for Elijah Bethel to be locked up forever, just in case he was guilty as accused, since evidence isn’t important to her.

  9. M. Kase

    I will, in a heartbeat, wager my tax return that someone who is not considered to be terminally stupid by the general population will seriously make the claim that the line domestic violence in the Constitution allows laws seeking to deal with the modern definition of the word may ignore any other portion of said document.

    Also, I’ll wager a cup of coffee that that’ll be the most torturous sentence I write this week.

    1. SHG Post author

      Kinda reminds me of the old joke about the right to wear short sleeves. But at least, everyone knew it was a lame joke.

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