“There’s a sign on the wall, but she wants to be sure, ‘cause you know sometimes words have two meanings.”
– Robert Plant
Words have meaning. This allows us to communicate with each other. Suppose you and I are having dinner. If I ask you to pass me the salt, meaning the seasoning commonly applied to food, and you have decided to redefine the word “salt” as an explosive device activated by pulling a pin and releasing a handle (or what I would call a hand grenade), it’s not difficult to see why you would be very worried, and why I (having asked for a common seasoning) would be surprised by your concern. If words mean whatever the speaker decides in the moment, then we lose even the most basic ability to communicate with each other.
In light of the continued debate over whether “defund” means “end all funding for” or “reduce funding for,” and especially in light of last week’s Supreme Court ruling, I am reminded of Genesis 11’s account of the Tower of Babel. The short version is that a group of people decided that they would build a tower to heaven. God, seeing that they would accomplish this goal if they continued to work together, and having His own reasons for not wanting them to do so, confused their language and scattered them over the face of the earth. It feels as though America is entering phase one of this process. Our language is being intentionally confused.
In recent weeks, radical leftist protesters have called for defunding the police. Those on the right were joined by centrists in questioning the wisdom of the idea, even as they called for significant reform within the police. Leftists in media, it seems, disagree with the traditional definition of the phrase “defund the police,” either out of principle, fear, or political expediency. Rather than let a perfectly good crisis and a catchy hashtag go to waste, traditional media called the right and the center to task, scoffing that they were attacking a straw man. No one, they claimed, actually wanted to “defund” the police. Meanwhile the original protestors continued to call for a total (or near-as-makes-no-difference) dismantling of the police, and officials in some cities have not only taken them seriously, but have actually begun the process, with predictable results.
Now, anyone who takes issue with the idea of dismantling the police is chided for not knowing that “defund” only means to direct funds towards mental health and other community support systems, not to totally dismantle the police. It is claimed that the phrase “defund the police” has a range of meanings, encompassing everything from total abolition to a small reduction in appropriations, and many positions in between. So the term has lost its meaning. When a conservative is derided by a progressive for not supporting police reform because she opposes “defund the police,” meaning she wants a police force in her city, who is talking about salt and who is talking about the hand grenade?
It’s one thing to see this kind of redefinition taking place on traditional and social media between radically divided political factions with competing narratives and opposing interests. It’s another to see it happening in the United States Supreme Court, by a Justice who, until now, has been one of the most principled textualists on the bench. But that’s what happened last week, when Justice Gorsuch substituted his policy preferences for those of Congress by broadening the phrase “because of sex” in statute to include gay and transsexual workers. Congress has tried and failed, repeatedly, to update Title VII. But while Gorsuch’s intentions may have been noble, he has broken faith with the Constitution he swore to uphold. It falls to Congress, with the support of the president, or over his veto, to broaden or narrow the definitions used in determining whether an employer has illegally discriminated against an employee. It is the court’s duty to uphold the law as written.
Words always have meaning, but they especially should, and do, when enacted into law. If one believes that government is only valid when it is acts with the consent of the governed, then only laws enacted by the peoples’ representatives can be laws. They retain their legitimacy through the years as long as there is a meaningful mechanism by which they could be repealed, and the mechanism is not employed. For ordinary statutes, they continue to be valid unless and until they are repealed by ordinary statute, or they are struck down because they violate some higher law. They must be interpreted according to the generally accepted meaning of the words chosen at the time they were adopted, because only that meaning ever had the consent of the governed.
The legislature does not vote on one intent, one purpose, or one ideal outcome. They vote on one set of words. They do so for their own reasons. Suppose a legislative body of three people votes to outlaw coffee. The first believes coffee is bad for health, and intends to help people live longer. The second owns a tea company, and assumes most coffee drinkers will settle for tea, expanding his profits. The third has a religious objection to caffeine. All three voted for the same law, but if a court has to determine whether tea falls under the coffee ban, one legislator will clearly say it does not, one will likely support a broad definition that includes all caffeinated beverages, and the third is a wildcard – it depends whether he thinks the caffeine in coffee creates the health risk, or if it’s some other characteristic that tea doesn’t share. Thus we see that that text must control, since it is the only thing all three lawmakers agreed on.
We interpret the text as it would be commonly understood by an ordinary person (except that terms of art and previously defined terms will have those special but accepted meanings). If courts suddenly give a statute new meaning, they have usurped the power of the people and their representatives.
In 1964, when Title VII was written, there was simply no way sexual orientation or transgender status could have been read into the words “because of sex” – the textual hook Justice Gorsuch used to cram such a meaning into the law last week. He twists through a series of mental gymnastics trying to obfuscate this obvious fact. He claims to give the words their traditional meaning, but slips something extra into them. In the process of decrying “purposivism” (a flawed judicial philosophy that attempts to guess at the purpose Congress had in mind when it passed a law) he pioneers an equally flawed interpretive method – living textualism. Living Constitutionalism holds that the words of the constitution should be given the meaning the judge wants, to get to the outcome the judge wants. Justice Gorsuch has woven this “living” element into his otherwise flawless textual argument. (No really, you should read it. It beautifully outlines why textualism is so important.) But the text must control, and its must be fixed at the time the law was passed.
In sum, Justice Gorsuch, while trying desperately to adhere to his textualist principles, has undermined them. He gave the words meaning that the surely didn’t have in 1964, or 2004. It would be difficult to make the case they have that meaning even in 2020.
America is standing at the foundation of the Tower of Babel. If we do not agree to resume speaking the same language – giving words their agreed-upon traditional meaning, whether English, Spanish, or Latin – we to will be scattered over the face of the whole earth, and whatever potential our society had will be squandered.
The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.