Tag Archives: words

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.

Book Review: Reading the OED

Reading the OED, by Ammon Shea

The Old English Dictionary (the unabridged version) is 21,730 pages, and Ammon Shea read all of them in a year. If you’ve never read a dictionary, that may seem like the most boring way to use your life, but having spent plenty of time in dictionaries (out of necessity) I can at least understand why a lover of words could also become a lover of dictionaries. Shea clearly is one and it comes accross. He captures the tension in learning about words, ultimately concluding it’s worth it:

“When I learned that secretary meant “one privy to a secret” … I was utterly delighted. And then I almost immediately began scolding myself for not having already realized such an obvious precedent, and thought that I should feel no excitement at discovering something that in hindsight seems so obvious. But it is excting to make these little discoveries about language, and it shouldn’t matter at all if they are obvious to someone else.”

I also generally agree with his take on books: “The computer can only reproduce the information in a book, and never the joyful experience of reading it.”

My point of pride in reading this book was noticing that one word was misused. Shea refers to the “enormity of the English language.” Enormity, however, refers to “the great or extreme scale, seriousness, or extent of something perceived as bad or morally wrong,” while enormousness refers to something very large. Small win for me. (I grant him a pass on saying “unconscious” when “subconscious” is a better fit.)

The book’s 26 chapters are split into a mediation on words and a list of particularly interesting words from the respective letter. Since there is no way to review that, I’ll leave you with a list of particularly fun words or Shea’s descriptions thereof. One realization you’ll have is one I shared with Shea: “Reading through the dictionary, I am struck again and again by the fact that many words that describe common things are obscure, while many words that describe obscure things are widely known.”

“Even though I do not feel a need to remember these words, I do feel a need to know that someone has remembered them.”

Strongly agree. Recommended for word lovers.

Airling (n.) A person who is both young and thoughtless.

Bayard (n.) A person armed with the self-confidence of ignorance.

Cellarhood (n.) The state of being a cellar. Along with tableity (the condition of being a table) and paneity (the state of being bread), cellarhood is a wonderful example of the spectacular ways English has of describing things that no one ever thinks it necessary to describe.

Desiderium (n.) A yearning, specificially for a thing one once had, but has no more.

Elozable (adj.) Readily influenced by flattery.

Fornale (v.) To spend one’s money before it has been earned.

Gound (n.) The gunk that collects in the corners of the eyes. Gound is the perfect example of a word that is practically useless, and yet still nice to know.

Heterophemize (v.) To say something different from what you mean to say. [I really wish this were more widely known because I do this frequently.]

Impedimenta (n., pl.) Such things as impede progress. Although impedimenta has most often been used in the sense of some concrete thing (such as baggage) that impedes progress, I prefer to think of it when I encounter any of the general things that slow one’s progress through life, such as having a moral code of some sort.

Jentacular (adj.) Of or pertaining to breakfast.

Kankedort (n.) An awkward situation or affair.

Leese (v.) To be a loser. [Learning this could really help Trump fit more into his tweets.]

Matutinal (adj.) Active or wide awake in the morning hours.

Nemesism (n.) Frustration directed inward. …a counterpart to narcissism.

Obdormition (n.) The falling asleep of a limb. Obdormition is the feeling you get just before prinkling (pins and needles).

Paracme (n.) The point at which one’s prime is past.

Quaesitum (n.) The answer to a problem; the thing that is looked for.

Redamancy (n.) The act of loving in return.

Stomaching (n.) A cherishing of indignation or bitterness.

Twi-thought (n.) A vague or indistinct thought.

Underlive (v.) To live in a manner that does not measure up to one’s potential.

Velleity (n.) A mere wish or desire for something without accompanying action or effort.

Well-corned (adj.) Exhilerated or excited with liquor.

Xenium (n.) A gift given to a guest.

Yepsen (n.) The amount that can be held in two hands cupped together; also the two cupped hands themselves.

Zyxt (v.) ..”to see” in the Kentish dialect. … [I]i is the very last word defined in the Oxford English Dictionary.

Terms That Need To Exist, Part X

There is a frequent experience that I (and from talking to people, many others) go through every day. It’s usually at work, but it can happen on the street, in a supermarket, or in any other place where one might encounter an acquaintance. The ritual goes like this:

1. You’re walking and you see an acquaintance (not a friend, mind you) down the hall or down the street, maybe 15-30 meters away, walking in the opposite direction. You will cross paths soon.

2. You briefly make eye contact with your acquaintance, and you both have the flash of recognition. You both know that you’ve seen and recognized each other.

3. You both look down and continue walking for a few seconds.

4. Once you’re close enough to each other, you look up, make eye contact again, and go through the customary “Hey! How are you?” ritual.

Step 3 is in bold for a reason. This interval needs a name. It’s a common occurrence that affects almost everyone, and it’s remarkable consistent. Everyone looks DOWN. You don’t look up or to the sides – that would just tell the other person you’re snubbing them, intentionally (up) or because there are so many better things to care about around you (to the sides). You both look down as a gesture of respect, a gesture that says “I’ve acknowledged you but we can’t stare at each other for 6 seconds while we approach, so I’ll look down and do nothing else until I’ve greeted you.” This gesture deserves a name.

I’ve toyed with various options, but many of them are too general (“the anticipatory interval”) or specific (“that thing you do when you’re too far from someone you’ve recognized so you stare down at the ground until they’re close enough to greet”). Field testing has yielded a clear winner, though, so henceforth, that thing you do when you’re too far from someone you’ve recognized so you stare down at the ground until they’re close enough to greet shall be known as:

The Ground Interlude.

Y’know, because you stare at the ground.