Tag Archives: words have meanings

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.

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.

Follow-Up On The Cost Of Imprecise Language

“Imagine you’re driving down a turnpike. It’s late at night, it’s cold and rainy, and you’ve been driving all day.  You pull up to a toll booth. The toll is 40 cents, and you root around your pockets and the cupholder, and you dig up your last quarter, nickel, and dime. You roll down your window, toss the coins into the machine, but one of the coins bounces off the edge and falls into a puddle. What do you do? You might feel that you’ve rid yourself of 40 cents, so your duty is complete – it doesn’t matter that the machine didn’t get its 40 cents.”

That is a rough paraphrase of a commentary about good writing I read ages ago and can no longer locate. (A good writer should make sure the reader receives his 40 cents.) I thought of this after writing my post in which I label language a public good, because I think it captures the importance of clear language that I identified there.

Imagine if the speaker is the driver in the story above, but there are many listeners. The coin that falls in the puddle is multiplied: every listener that has to expend extra energy understanding a confusing or unclear statement is a separate cost. The more listeners there are, the higher this cost. With the world becoming more integrated, potential audiences are much bigger than in the past, so the costs of being imprecise are much higher.

Anyway, that story is nice.