Saturday, July 11, 2020

Textualism and Indian Country

Neil Gorsuch was put forward for the Supreme Court by various conservative bodies, such as the Federalist Society, because he believes strongly in a doctrine called "textualism." This doctrine was well defined by Justice Oliver Wendell Holmes, who wrote,
We ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used ... We do not inquire what the legislature meant; we ask only what the statutes mean.
Or as this blogger put it, "Only the written word is the law."

American conservatives are attracted to this doctrine because they think US courts have been interpreting laws in ways that go far beyond what they say. By prying into what laws "mean", they think, judges have effectively been writing their own laws. The main decisions that made this a conservative mainspring were Roe v. Wade – after all, the word "abortion" does not appear anywhere in the Constitution, so under a textualist interpretation there can be no right to abortion – and those that turned a ban on segregation into mandated school busing.

But Neil Gorsuch has lately been giving some of his backers a lesson in what it means to take the text seriously. First there was his ruling in Bostock v. Clayton County, which found that a law forbidding discrimination on the basis of "sex" applies to gay and trans people. One could argue against this on many grounds; for example, if you are an originalist who likes to rule on the basis of what the law meant when it was written, you might argue that nobody in 1964 intended the law to protect gay people. But Gorsuch just looked at the text and said, to me, "sex" means what adults do in bed together, so homosexuality is obviously protected.

And now there is his ruling in McGirt v. Oklahoma, delivered Thursday, which holds that wide swathes of Oklahoma are still "Indian Country":
On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding “all their land, East of the Mississippi river,” the U. S. government agreed by treaty that “[t]he Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians.” Treaty With the Creeks, Arts. I, XIV, Mar. 24, 1832, 7 Stat. 366, 368 (1832 Treaty). Both parties settled on boundary lines for a new and “permanent home to the whole Creek nation,” located in what is now Oklahoma. Treaty With the Creeks, preamble, Feb. 14, 1833, 7 Stat. 418 (1833 Treaty). The government further promised that “no State or Territory shall ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” 1832 Treaty, Art. XIV, 7 Stat. 368. 

Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.
Here is the hidden danger in textualism for conservatives. Legislators have a very long tradition, probably stretching back to Hammurabi, of writing laws one way while knowing perfectly well they would be interpreted in another way. Custom and long usage, they knew, would keep the full language of the statute from being enforced. 

But textualism is death to custom and tradition, unless those things are clearly written into the law. 

Liberals shouldn't necessarily gloat over this, because Gorsuch has shown in these rulings that 1) he really means what he says about reading only the text of the law, and 2) he is perfectly willing to throw big monkey wrenches into things like how justice is administered in Oklahoma if he thinks the law calls for it. He will vote to overturn Roe v. Wade every chance he gets.


G. Verloren said...

This sounds like insanity, because it means the law changes as language does, without any due process or even conscious intent or awareness. It also doesn't account for ambiguous language at all.

For example, "sex" can be "what adults do in bed together", but it can also mean your biological sex. The act of "sex" is much more accurately described as "sexual congress", but in common parlance it gets shortened, and in so doing introduces a textual overlap that ignores vital context. Similarly, in recent years, sex and gender have become highly conflated and lost much of their prior distinctions in common parlance. While no one should be discriminated against on the basis of their biological sex, their sexual orientation, or their gender construct, it is vital to distinguish them all from each other, because they are NOT the same things.

This definition creep and conflating of terms is dangerous to the most fundamental application of equal law. Laws should not be changed BY changes in language - they must be intentionally updated to REFLECT changes in language, or else must be enforced in their original intent if not revised.

Consider the Second Amendment. A textual reading of "arms" in the modern sense would include any and all weapons, including nuclear bombs, bioweapons, and chemical warfare agents, which clearly are far beyond the scope of what the intent of the amendment was. The authors obviously did not intend the average person to have an 'un-infringeable' right to possess weapons of mass destruction, and yet a textualist reading of things ignores the context and intent of the law and provides for precisely that.

Really, you can boil down "textualism" to a blind adherence to the letter of the law, and an equally blind disregard for the spirit of the law. That is a textbook recipe for draconianism and tyranny from those who would seek to warp the law to suit their own ends, and so no sane person could advocate for such a thing.

Then again, the same kinds of people who seem to ascribe to this view are also likely to be biblical literalists, so I suppose I can't say I'm surprised...

David said...

To me, the Gorsuch rulings demonstrate the weakness of many claims to reduce our current political divisions to intellectual and/or methodological abstractions. Most conservatives, like most liberals, really care about specific issues, and want courts to rule the way they want them to, originalism or whatever be damned (some conservatives have reacted to the recent rulings along precisely such lines; "if we had known this is what textualism would give us, we would never voted for textualists"). In the same way, neither side is significantly motivated by principles of strong or weak government; both sides want government to be strong about the things they want it to do, and weak about the things their opponents want it to do. One could say the same about abstractions like order and change.

Shadow said...

Which SCOTUS justice said, and I paraphrase, "once I know how I'm going to rule, I'll figure out how to justify it." Forget textualism and interpretation. There it is plain as day :)

PS: The 2nd amendment should be tossed in the dumpster on the grounds that a textual reading leads to the obvious conclusion that it is nonsense and not be understood by any person with a sound mind. Those commas don't add clarity; they make the brain do flip-flops.

Shadow said...


Love the use of the word "biblical."

G. Verloren said...


It wasn't an autocorrect typo this time! And I'm not being figurative, either!

I 100% am comparing textualists to people who believe every word of the Bible is literal truth, nevermind all the obvious figurative language, allegory, symbolism, translational differences, et cetera.

The kind of person who would interpret a law without regard for its original context and intent is likely the same kind of person who would interpret the Bible as being wholly literal, without quite realizing that it contradicts itself to the point of absurdity and physical impossibility even before you finish the first book. (Most people fail to notice that Genesis tells the story of how Yahweh created the universe... and then it tells how he created it again, but this time in a totally opposite manner than before. Anyone who thinks the Bible can be literally true clearly hasn't actually read it, and yet they are legion among "the faithful".)

Shadow said...


While writing my comment above, I had at one time used the word fundamentalist. So, yeah, I get that comparison.