Words have meaning — or at least they’re supposed to.
The very essence of language grants two people the power to convey defined, discrete information to each other. If two people can’t do that, then ideas can’t spread. We can’t be social with each other. We become isolated individuals capable only of building on our own internal dialogues.
The only way this works is if letters, words, and sentences have meaning that doesn’t change. Of course, evolutionary language changes do happen; a gradual shift in usage, where everyone largely agrees, intuitively or instinctively, to those changes, is natural.
I start by making these broad points because if you can understand all that, you’re halfway to grasping notions of textualism, originalism, and strict constructionism. Each one of those theories builds off the idea that words have meaning. When elected legislatures choose specific terms to have power over people, they choose those words for a reason.
As Justice Antonin Scalia once said of originalism, “The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”
What that means is that voters, through the people they elect, pass laws — or agree to constitutions — that continue on the books until amended or removed by newly elected representatives. If no one changes them, those laws continue with full force, because that’s what society has come to agree and accept as the rules governing everyone. Originalism, then, sets judges’ role as saying what the law is, not what it should be.
Remember: the people responsible for determining what the law should be are the representatives elected by voters. This point is simple, yet profound, because it restrains judges from becoming unelected legislators.
Textualism and strict construction are different interpretation methods but also based on notions that words have a specific meaning. If you can’t agree on basic terms, it’s impossible to have the rule of law or even basic conversations.
If you understand those fundamental points about interpretive methods, you’re already ahead of Democrats who are either illiterate morons or purposeful liars. I’ll let you make that determination.
During this week’s confirmation hearings, Judge Amy Coney Barrett was asked several questions about originalism. ACB answered and she went in-depth, beyond this column’s scope, thoroughly refuting any detractors to the method.
As the hearings droned on in Washington, Hillary Clinton sniped at Barrett on Twitter: “At the time the Constitution was ratified, women couldn’t vote, much less be judges.”
Disgraced journalist Dan Rather quipped: “If you want to be an ‘originalist’ in law, maybe you should go all the way. Cooking on a hearth. Leeches for medicine. An old mule for transportation. Or maybe you can recognize that the world changes.” Chicago Mayor Lori Lightfoot even got in on the action, calling Barrett “dangerous” for these views, as the Chicago Sun-Times reported.
These descriptions are all strawmen arguments, of course. That’s not what originalism is, at all.
Women got the right to vote because of the 19th Amendment. An originalist judge would understand and defend that amendment from all assaults and attempts to reinterpret the language in it. A living constitutionalist could theoretically say they’d redefine what sex means in the context of the 19th Amendment to scratch out the right to vote.
In a 2019 essay for TIME magazine, Justice Neil Gorsuch pointed out that those who believe in a living constitution theory are to blame for some of the worst cases in U.S. history. “[J]udges sought to pursue policy ends they thought vital,” he explained. “Theirs was a living and evolving Constitution. And often enough it may be tempting for a judge to do what he thinks best for society in the moment, to bend the law a little to an end he desires, to trade just a bit of judicial integrity for political expediency.”
The cases he name-checked as citing a living and evolving standard of the Constitution were the Dred Scott and Korematsu cases, which upheld slavery and permitted the internment of Japanese-Americans in concentration camps during the Second World War. Both cases are considered lousy law, and not just for the conclusions they reached — neither was written by originalists.
What was clear, listening to Amy Coney Barrett defend originalism before Democratic senators, is that the left doesn’t want a judge on the Supreme Court. They want a super-legislator pushing forward whatever they want at a given time. If Barrett were a living constitutionalist, she’d be the worst nightmare of anyone on the left.
But she’s not. These attacks are the left projecting the failure of their interpretive method, living constitutionalism, onto everyone else. And to prove that point, one of the attacks the left launched at Barrett required them to get Merriam-Webster to change their definition of a term — in the middle of hearings — to claim Barrett was discriminatory toward those in the LGBTQ community.
For the left, words have no meaning anymore. The only goal is whatever end they’re pushing. That mindset overthrows notions of defined terms, the rule of law, and more.
If you’re wondering why we can’t even seem to communicate across the political divide anymore, start here. Because one side is abusing cultural power and redefining everything so that they can never lose an argument, and in the process, they destroy the very essence of language that is supposed to bring us together.
Put another way, the end of the Tower of Babel’s story was supposed to be a warning, not a blueprint to emulate.