Category Archives: language

Everyone’s An Originalist

It’s no secret to the loyal reader that I’m somewhat of a fan of Supreme Court Justice Antonin Scalia who died this weekend. I’ll ignore political implications of this death which began far too quickly after it was announced. I won’t even talk much about the man himself, since others are doing that plenty and I hadn’t met him yet. (We have a mutual friend who was willing to introduce me but we never got around to it. Carpe diem, people.) I’ll say only that he was just imperfect enough to open himself up to some justifiable criticism, though no more so than anyone else I know.

Instead, I’ll spend a few paragraphs defending Scalia’s legacy, the interpretive method known as originalism. You may have seen sarcastic mentions of it on your social media feeds that mocked Scalia for allegedly being stuck in the 18th century.  My point is that originalism is the way everyone interprets everything, and constitutional interpretation should not be different; in fact, there are good reasons to make that presumption even stronger.

The Marriage Analogy

Imagine you’ve been married for 20, 25, 30 years, and your spouse comes to you and says, “I know we’ve been together for a long time, but I’m going to have an affair. When I said I’d be faithful, that was a long time ago. We’re getting bored with each other, and infidelity is very common now, so it would really be better if I could have an affair.” You probably wouldn’t appreciate their living relationshipism. You’d feel betrayed. You wouldn’t care how long ago the agreement was formed or infidelity was really on the rise. You’d interpret your agreement the way it was when you made it. If your spouse wanted a change, he/she should have come to you. Couples make adjustments to stay happy (up to and including sanctioned straying, pop culture tells me), so your spouse had that option available if something needed to be changed.

What if your spouse argued that he/she had the right to cheat all along? “Infidelity was always high, and common in many cultures. You really could never have had an expectation I’d be faithful. It just happens to have come up now.” I imagine you’d fight back on that, too. You’d point to your wedding vows, for example; you’d point to the cliched bachelor/ette party comments about your last sexual partner ever; you’d point to what all your friends and family expected your marriage to be.

Don’t look now, but you’ve just engaged in originalism, which just means that an agreement means what it means until it’s properly changed through whatever mechanism changes it. If your marriage arrangement isn’t working, the expectation is to jointly change it by mutual agreement; if a constitutional arrangement isn’t working, the proper path is to amend the constitution. I contend that most people would be irate if their friends or business partners engaged in constant unilateral re-writing of prior agreements. (Being homo hypocritus, of course, we’d keep doing it, because it’s different when we do things.)

The Real Complaint About Originalism

What’s bothering most people about Nino’s originalism (and mine, I guess) is that it isn’t giving them what they want easily, especially the socially liberal chattering classes. The constitution (and its amendments), written when it was, was not friendly to women, or minorities, or the poor. The fact that we wish it weren’t so doesn’t change the language and the original understanding of it. It’s up to us to change the law in a way that reflects present-day public will, to the extent such a thing exists. People who complain about originalist interpretations are mostly mad that they can’t convince enough of their fellow citizens to make the necessary changes.

Unfortunately for the rule of law, it’s become far easier to get the Supreme Court to declare that something has always been constitutionally required (such as gay marriage) than to convince enough states to permit it. The same is true of almost any contentious issue, where the initial Supreme Court ruling is unlikely to be overturned by majority rule in the near term. As a result, we’ve turned the court into a vehicle for expressing that the law or policy should be rather than what it is.

The Unfairness of Non-Originalist Interpretation

The death penalty provides a good example of why using the court as a policy tool is ultimately unjust. The death penalty is clearly contemplated in the constitution and has been widely used since 1787. There is no doubt that it was a constitutional penalty when the constitution was adopted. There are, however, judges – like Justice Breyer on the Supreme Court – who believe the death penalty to have become cruel and unusual punishment in violation of the Eight Amendment.

If you believe that the death penalty should be abolished – a position to which I’m sympathetic – then you can follow the example of Nebraska, whose Republican legislature recently abolished the penalty. What you should not do is declare that yesterday the death penalty was constitutional but today it’s not.* That means that two twin brothers committing the same crime a day apart could be punished differently, all without a democratically accountable process by which the people (nominally) decide to change the consequences of a crime. This is, in simple terms, unjust.

*One exception that is often made here is that sometimes the facts on the ground change significantly. I’m not sure how much worse the DEATH penalty could be than we think it is, though, so I’ll ignore that here. A possible application of this rule could be solitary confinement; widely used, but only now are we grasping how destructive it is. If we learn it’s qualitatively different from what we thought it was, then the activity was never knowingly adopted as constitutional, and there may be grounds to interpret the activity as never having been constitutional because of a mistake. This is the sort of loophole that may be stretched beyond all reason, but even I could imagine a fact change so large and severe that I’d be reluctant to wait for the legislative process to catch up to it.

If you’ve read this far, you may have forgotten that this post started with the death of Justice Scalia. The above, in a nutshell, is a simplified and somewhat idealized version of his judicial philosophy. You have probably already seen simplifications and distortions of it online. I hope this explained a little just how common-sensical and intuitive the idea really is.

Words Have (Politically Convenient) Meanings, Part 2

This Wednesday, the US Supreme Court heard oral arguments in the case of King v. Burwell, where the court must decide whether the words “Exchanges established by the State under Section 1311” mean “Exchanges established by the State under Section 1311” or not. I’m not going to get into the merits of the case (The Volokh Conspiracy does a fine job) but I will comment on the setup that got us here, and how stupid it is.

The reason that case is before the court, ultimately, is that Congress is just terrible at drafting law, even with two centuries of precedent. It’s not like we don’t know how to write exactly what we want into a law when we want to. Of course, Congress usually doesn’t want to be that clear, to the extent a group can even have a consensus. By saving statutes that are so terribly written – and the Obamacare statute is nonsensical under EITHER interpretation of the phrase above – courts are saving Congress from the consequences of being very bad at what it’s supposed to do.

The proper way for the court to resolve it is to say that Congress meant what it wrote and it needs to deal with that. Of course, politics get in the way – the Republican Congress wouldn’t be kind to Obamacare – but all that would happen if the court gives in is that we get to deal with something like this forevermore.

Words have meanings. Actions should have consequences.

Words Have (Politically Convenient) Meanings, Part 1

It gives me no small pleasure that in the past few weeks the headlines have included several separate nationwide discussions about what words mean. As I’ve always maintained, words have meanings and we need to keep those meanings clear and stable as much as possible.  A couple of related questions have recently arisen that bear that out:

1. Is the “Islamic State of Iraq and Syria” Islamic?
2. Is Barack Obama a Christian?

The answer to both questions, of course, is yes and no.

Is ISIS Islamic? No, in the sense that across the world of Islam, from Indonesia to West Africa, ISIS is a huge and clear outlier – hell, al-Qaeda found them too extreme! That said, ISIS considers themselves Islamic, and with enough creative interpretation of Islamic writings, they could probably find some legitimation. There’s obviously a limit to this – if ISIS claimed they were Islamic minus the part where “there is no god but Allah and Muhammad is his prophet,” it’d be difficult to still concede their claim.

Similarly, it’s likely that Obama believes himself to be a Christian, though he’s vastly more secular than the median person who so claims. And if you’re one of these less secular Christians who strongly disagrees that Obama’s actions are consistent with being a Christian, you would not consider him one.

Islam and Christianity are such broad terms encompassing a multitude of concepts that a variety of behaviors and beliefs are covered, and you’re not going to get a clear answer when you ask a yes-or-no question about them. What you’ll get is a politically convenient answer, as we usually do in the cases above.

The Importance Of Words, Part 381

Moreover, the demand that “The Interview” be withdrawn because it treats North Korea disrespectfully — as it most certainly does — isn’t all that different from the arguments behind the various speech codes that have proliferated in Europe and Canada of late, exposing people to fines and prosecution for speaking too critically about the religions, cultures and sexual identities of others.

So writes blog-favorite Ross Douthat.  As you know, I’m a stickler for the usage and meaning of words, and I just can’t get on board with this description. Here’s the key part I disagree with: “the demand that “The Interview” be withdrawn because it treats North Korea disrespectfully — as it most certainly does.” The question I ask is this: what is North Korea?

The answer seems pretty simple, but it isn’t. Wikipedia says that “North Korea, officially the Democratic People’s Republic of Korea, is a country in East Asia, in the northern part of the Korean Peninsula.” If we say that North Korea is that particular territory, we’d be technically correct – but would Douthat be right? I don’t think he would, since I doubt the movie (which I’m yet to see, although I certainly will, and was always going to) hardly mocks the particular territory. It mocks – what? Certainly not the majority of people* of North Korea, who are slaves to a tyrannical regime. Certainly not the landscape, which basically a landscape.

*At least I hope it doesn’t. If it does in fact mock the innocent, then go ahead and do terrible things to Seth Rogen and James Franco.

The movie mocks the North Korean government, and it’s important to keep this distinction alive. Those who protested the current Iraq war were protesting the American government at the time, not the population, which was at best torn about the prospect. Those complaining about “Japanese,” “Chinese,” and “Greek” action in the last few years have the same complaint. Even in democracies, there is a big slack between popular opinion and government action, and saying that the latter always correctly reflects the former – and that the former is an accurate gauge of popular sentiment – is just incorrect.

So no, we do not mock North Korea – and we certainly wish nothing but the best to its people. We mock a tyrannical government that needs to disappear before I have to explain to my children why we let it exist at all.

The Costs of Language Evolution

This happened today:

Matt Yglesias neglects the costs of a changing language.
Matt Yglesias neglects the costs of a changing language.

Matt Yglesias, as is often the case, is wrong. There is a real cost to letting settled language ‘evolve’ into other, more confusing meanings. As someone noted in response to this tweet, there is now no way for someone to indicate that they mean “literally” in its original meanings. That makes language more confusing, and considering the public good nature of language (as described here) this sort of unnecessary confusion can be very high. Without the scolds, we’ll end up in a world where literally every time you have to specify “literally, and I do mean literally.” Which is hard to do in a world of character limits.

The Meaning Of Privilege

Julia Fisher has an insightful essay summarizing a lot of recent posturing regarding privilege and the checking thereof, including an article from my alma mater. The whole thing is worth a read, but I want to focus on Fisher’s closing:

Told to check your privilege, it’s pretty easy to feel shut out of conversation; an advantage in life might be turned into a disadvantage in debate. “Check your privilege” can come across as an expectation that a person be repentant for sins he has not committed. In its most generous usage, of course, “check your privilege” isn’t meant to make anyone feel guilty—only to make them recognize their privileged position. But it has the effect of invoking guilt, in large part because the phrase is so often used ungenerously, as a weapon rather than a gentle reminder. This is partly what outraged Fortgang, who refers to the phrase as a reprimand that “threatens to strike down opinions without regard for their merits, but rather solely on the basis of the person that voiced them.” He concludes, “I have checked my privilege. And I apologize for nothing.”

This disconnect stems from confusion about what “check your privilege” really means, which results in accusations and defensiveness rather than a reasonable debate about—well, whatever subject the debate was originally about. Who can remember? But the problem isn’t just the phrase “check your privilege,” or even the concept of privilege. It’s rooted in a basic disagreement over the weight of identity in determining a person’s role in social discourse. And that’s why Fortgang’s opponents and supporters will continue to talk past each other.

As regular readers know, I often point out that words are susceptible to similar but different meanings, and how that often leads to unproductive conversations as people talk past each other. Fisher’s article points out how the word can be used to mean many things, and thus everyone is simultaneously right and wrong in arguing their positions.* I’m heartened that someone with more readership than me** is pointing this out, as small step toward a less polarized world. A good next step would be for people who (non-ironically) say “check your privilege” to figure out what to do after that.

*Ditto for “inequality” in the present day. If someone complaints to you about it or says it’s not a problem, make them explain to you what they mean by “inequality.”

*Meaning “having more than six readers.”

West Virginia Vagueness

My recent post about vague laws reminded me of a statute I encountered a few years ago in my practice. Read this and tell me if you know what’s allowed and what isn’t. Then find a second person that agrees with your definition of unfair. I’ll wait.


§46A-6-104. Unlawful acts or practices.
Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.

The West Virginia code has other problems (two sections later, there’s an obvious drafting error where “seller or lessee” is used in places where “seller or lessor” is clearly appropriate), but that “law” is an abomination.

The Importance Of Clarity In US Law

I wrote recently that “clarity [in written laws] is more important in America than in most countries, and in the next few days I’ll explain why.” The answer, and this was probably obvious, is that the US has a more heterogeneous population that almost any country in the world. As a result of a long-standing policy on relatively open immigration, especially in the 19th century, the United States lacks cultural hegemony by a dominant group. Sure, there is an Anglo-Saxon heritage that persists to the present day, and there is something of a national culture reinforced by Hollywood and the media, but given the size of American population and its varied origins, the US has large subcultures with different cultural assumptions.

These cultural differences eventually (now) play themselves out in the legal system out of necessity: individuals from different groups will end up in conflict. Laws, meanwhile, can’t possibly predict all possible interactions that may ensue, so not all rules can be clearly defined in advance. This is a more important feature in common law jurisdictions like the US, but it plays a part in civil law countries as well. As a result, rules sometimes contain guidelines that necessarily involve judgment calls. For example, criminal laws often use different gradations of state of mind, including “purposely, intentionally, recklessly, or negligently.” Similarly, many (too many) statues and common law rules require people to act “reasonably” under some circumstance or another. It’s self-evident to me that “reasonable” can mean very different things to different people, although the legal system has the nerve to refer to this rule as an “objective standard.”*

*Meaning only that something seem reasonable to other people, rather than just the perpetrator. I just find it ironic in many ways.

Now, put groups with different cultural assumptions together, and provide them guidance using words like “reasonable,” and see what happens. The answer is lawsuits. Lots of lawsuits. I’m firmly convinced that the perceived litigiousness of the United States, at least below the corporate level, can be traced to misaligned cultural assumptions. I’d also venture that some other social pathologies like low-level crime have similar causes. Basically, there are many borders between cultural groups in America, and at these borders are no-man’s-lands and occupied territories where people disagree on what’s reasonable. More such borders means more potential for conflict, and more conflict means more fighting or more lawsuits.* This is also true when the dispute is between an individual and the state.

*Ideally the latter, because fighting is bad, and also I’m a lawyer.

I quoted Scalia last time when he pointed out that criminal law must be read against the government, which is not only in the best position to make changes if they’re needed, but also the party seeking to deprive others of life, liberty, or property. Plus, fairness requires that people know in advance what’s prohibited. In America, there is far more potential for misunderstanding, and that puts an additional responsibility on those who seek to enforce criminal laws to make them as clear as possible.













More On Language & Crime

I wrote recently about Smith v US, a decision I consider to be an abomination because of how it interpreted the word “use.”* The reason I dislike that decision is that it violates my sense of fairness: trading a gun for drugs isn’t the same as using a gun during a drug deal, no matter what the majority would have you believe. Of course, my sense of fairness isn’t a legal standard, but something similar is, and three justices of different persuasions thought as I do.

*Writing about words and the law gives you a new perspective on Bill Clinton’s famous question about what “is” means.

Justices Scalia, Stevens, and Souter dissented from the Smith decision, arguing that it was a violation of the rule of lenity. This rule is basically a judge-made guideline that say that ambiguity in criminal statutes must be resolved in favor of the defendant. Karl Llewellyn argued in a classic article that such rules often conflict with one another, and while that’s true, I think the rule of lenity must be one of the most important ones in a free society. There must be a fair warning as to what is prohibited, and it is incumbent upon a government that wants to deprive someone of liberty or property  to make it clear, well in advance, what sort of behavior will be punished. Scalia nails the reasons for this rule in United States v. Santos, 128 S.Ct. 2020 (2008)

The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them. See United States v. Gradwell, 243 U. S. 476, 485 (1917); McBoyle v. United States, 283 U. S. 25, 27 (1931); United States v. Bass, 404 U. S. 336, 347– 349 (1971). This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress’s stead.

That, in brief, is how every law should be read in a free society. This obviously benefits some very bad people* because it constraints the government’s ability to do what it wants, but this is a small price to pay for freedom. I’ve advised for the clear expectations in relationships, but at least those take place at roughly the same level. In criminal law, the weight of the state comes down on the defendant, and it’s crucial to protect the innocent. This clarity is more important in America than in most countries, and in the next few days I’ll explain why.



Time Editorials On Rape Culture

Time Magazine featured dueling editorials regarding rape culture last week, by Caroline Kitchens and Jessica Valenti. Kitchens reports on a major anti-rape network will no longer emphasize the idea of rape culture and shows some facts that support their decision; Valenti retorts to show that rape culture is a real phenomenon. They’re both worth reading in full if you care about the topic, but I want to highlight two things that got my attention in particular.

The Substance

First, the substance. Valenti polls Twitter for people’s definitions of rape culture:

Rape culture is when women who come forward are questioned about what they were wearing.
Rape culture is when survivors who come forward are asked, “Were you drinking?”
Rape culture is when people say, “she was asking for it.”
Rape culture is when we teach women how to not get raped, instead of teaching men not to rape.*

My personal experience is perhaps best described by Cracked’s David Wong: “Hey, how many males reading this had to, in the last year, Google the phrase “rape culture” because you were accused of being part of it, yet had no idea what it was?” That’s roughly where I fall on the spectrum. I’ve never thought of rape as something to be minimized or dismissed, and I don’t know anyone who does. I’ve encountered it in my social circle far too often, but I’ve never seen anyone ask if the victim had been drinking or dressed in a particular way.  I have spoken to people, however, whose experiences have been very different – they have heard these questions asked, and victims reluctant to come forward because they’d have to explain themselves. (I’m on the record as stating that a victim bears no responsibility for being attacked, even if they could have reduced the risk to themselves by acting differently, but I can see why someone would feel reluctant to come forward if they had to answer such questions.)

*”Rape culture is when we teach women how to not get raped, instead of teaching men not to rape.” I find this statement silly, and if you don’t, try substituting another crime. Teaching people to lock their car doors or avoid dark alleys isn’t creating a grand theft auto culture and a robbery culture, it’s just common sense. Perhaps there is more education of men needed – probably is, especially when alcohol is involved – but this is a nonsensical argument for the existence of rape culture.

The gulf between the two camps represented above is wide, and it’s not surprising that considering how different people could have different experiences. What’s surprising is how little they’re willing to concede to the other side: you’d think anti-rape activists like Valenti would be glad to know that rape culture isn’t as widespread as they feared, for example**. What’s at play is another tyranny of the dichotomous mind, where the only alternative to one extreme is the other extreme, and shades of grey are ignored. It’s a shame, considering how important this issue is. More on this below.

**While I’m hardly an expert on the issue, I believe Valenti et al are making a big strategic mistake. Instead of matching their words to reality and saying “there’s a problem, we’re making progress, and it needs to be eradicated,” the insistence on a national culture war will alienate many reasonable people whose experiences don’t match theirs. Once someone proclaims the existence of a pervasive national culture, those who don’t see the world that way will tune them out. Considering how important the issue is, this is just sad.

The Words

Second, since I’ve been discussing how attaching different meanings to words leads to unproductive discussions, I thought I should point out a particularly glaring instance between these two editorials.  First, Kitchens:

In January, the White House asserted that we need to combat campus rape by “[changing] a culture of passivity and tolerance in this country, which too often allows this type of violence to persist.”

Tolerance for rape? Rape is a horrific crime, and rapists are despised. We have strict laws that Americans want to see enforced. Though rape is certainly a serious problem, there’s no evidence that it’s considered a cultural norm.

Replied Valenti:

Is 1 in 5 American women surviving rape or attempted rape considered a cultural norm? Is 1 in 6 men being abused before the age of 18 a cultural norm?

Here we have two people talking past each other using the same words. “Cultural norm” is a fuzzy concept, and each writer seems to be thinking of it in a different way. For Kitchens, a cultural norm seems to be something generally approved by society at large, like drinking alcohol. In her experience (and in mine), most people don’t condone sexual assault or dismiss victims as having asked for it. Thus, it couldn’t possibly be a cultural norm. For Valenti, it seems to be something that happens frequently in a society, like driving under the influence. (The numbers are, as always, disputed, but read the articles if you want more on that.) Something that happens so frequently must, at some level, be approved by society at large – surely there are ways to bring these numbers down.

Thus we come to the unproductive conversation I warn about: they’re both right in some way, and thus convinced that it’s not worth listening to the other person. It’s especially sad when the topic is so important and common ground isn’t far away.