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 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.