Tuesday, September 22, 2015

Supremely Awful Arguments: Constitutional Nonsense (Part 3)

Textualism, literalism, or that's not exactly what it says

There are several variations on this theme:
"Just apply the plain language"
"The language is clear, so don't change it"
"It means what it says"
"It says what it means"
Etc., etc., etc.

Sounds good, sensible, easy.
Stop the Justices from twisting what the Constitution actually says and means.
Just stick with the text as written by the Framers.
Don't add or change anything.

Oh, really?
Even if the result is absurd? Dangerous? Suicidal for the community or the nation?

Now that wouldn't happen, would it?
That's an exaggeration, isn't it?
By just applying the text, the wording, the very language of the Constitution?

Oh yes!
And that's one of the major reasons why an insistence on textualism, literalism, "just apply what it says" is pure constitutional nonsense.

Let's delve into the Constitution.
Actually, don't need to do that.
Let's start at the very top of the Bill of Rights.
Right there in the 1st Amendment.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press..." [My emphasis.]
That's what it says. Verbatim.

Let's start with the very first word of that very first amendment.
What about the president?
What about a federal bureaucrat?
What about a federal agency?
What about the FBI?
What about a federal magistrate?
What about a federal trial judge?

May they prohibit free exercise of religion? abridge freedom of speech? of the press?
The 1st Amendment only says "Congress."
So just apply that, and don't add to or change what the amendment literally says?
So Congress isn't allowed to trample on freedom of religion, speech, or press.
But all the other officials and institutions of the federal government may?

Well, thank God, the 1st Amendment has NOT been construed literally, strictly according to its text, its plain language.
Instead, it has been "interpreted" to apply to all government officials and institutions.
Even though "that's not exactly what it says."

But textualism and literalism are even worse than the foregoing suggests.

Let's try the "no law" language in the 1st Amendment.
To begin with, that plain language mentions only "law."
It does not mention executive orders, agency determinations, or judicial decrees, etc. that violate freedom of religion, speech, and press.
So those would be permitted to violate our basic 1st Amendment rights?
Again, thank God, "law" hasn't been literally applied either.

But back to that entire phrase, "no law."
No law? None? Not any?
Should that text, those plain words, that constitutional language be applied literally?
Exactly what it says?
So no law?
Not even if necessary for the health, safety, welfare, and security of the community and the nation?

No law prohibiting religious human sacrifices? (And let's remember, many if not most religions in history believed in them.)
No law requiring that a deadly sick child be provided life-saving medical health care regardless of the parents' religious objections?
No law forbidding flying into buildings or slaughtering heretics or infidels for religious religions?

No law prohibiting--you know--falsely shouting fire in a crowded theater?
No law prohibiting verbal threats (whether or not carried out)?
No law prohibiting a soldier from telling his military commander, "Go F yourself," when the soldier dislikes the commander or the commander's order?
No law prohibiting an individual from telling national security secrets to an enemy?

No law prohibiting the press from doing so?
No law prohibiting the press from publishing deliberately false stories that ruin someone's reputation?
No law prohibiting the press from publishing child pornography?

And of course we could go on indefinitely--if not interminably.

The point should be clear.
And that's just the very first amendment.

"Congress" means Congress.
"Law" means law.
"No law" means no law.

And yet, thank God, that plain language, that text, has not been literally applied--"interpreted" if you prefer (although it's hardly really that).
Thank God that, instead, over the years the Court (and lower courts and judges) have generally been more reasonable than that.
Thank God that, instead, over the years American constitutional jurisprudence has been concerned with the underlying principles, the broader constitutional concepts--not simply a literal, narrow reading of "plain words"--and not overly concerned with "that's not exactly what it says."

And we haven't even discussed textualism and literalism and plain meaning with regard to those terms in the Constitution such as "liberty," "due process," and "equal protection."
How are those to be applied literally?
What is their plain meaning?
Even if it were a good idea to "just apply the text," how would that be done?
Those terms, and so many others in the Constitution, simply have no fixed, pre-determined meaning.

"Liberty" includes exactly which rights and freedoms? and which does it not?
Then there's the old saw about liberty versus license. That's always clear!

"Due process" literally means the process or procedure that is due, or the right amount, or right amount owed or to which one is entitled.
And that is exactly what? and how much?

And "equal protection" of the laws?
Everyone to be treated equally under the law?
No differences in treatment? No distinctions at all?
Even when those differences or distinctions are entirely relevant? For example, academic ability and admission into state universities? Athletic ability and playing on a state university sports team? Substance abuse and rejection from a highly sensitive government position? Etc., etc., etc.

Oh, of course different treatment based on relevant criteria is fine, perfectly permissible.
But not based on irrelevant criteria--that would be "discrimination," not legitimate differentiation.
Ahhhh, so it's a matter of relevant versus irrelevant.
That's always clear!

So, to start with, "equal protection" really means "equal protection except when differences are constitutionally relevant."
But beyond that, what is constitutionally relevant is not exactly fixed or pre-determined--not by the text; and not by anything else.
Indeed, what is constitutionally relevant or irrelevant has been difficult and controversial throughout our history--and without the slightest help from the constitutional text which says nothing about it.

Consider that the Supreme Court did not rule that race was an irrelevant (and therefore impermissible) criterion for different treatment, at least for segregation, until 1954; and not for marriage until 1967.
It did not rule gender to be an irrelevant (impermissible) criterion for different treatment regarding government benefits, professions, education, etc., until 1971.
It did not rule sexual orientation to be an irrelevant  (impermissible) criterion for some different treatment until 2003; and for marriage until earlier this year.

And none of those criteria, or any seemingly countless others, are even implied in the text of the 14th Amendment's equal protection clause--let alone whether they, or any other criteria, are to be treated as relevant or irrelevant.

Well, we could go on and on with this.
But what should be more than clear without further examination is that the argument for textualism, for literalism, for just applying the plain words is nonsense.

Yes, it sounds right, sounds simple, sounds like the way to rein in a "rogue" judiciary that's "making law instead of just applying it."
But even the slightest examination shows the argument to be thoughtless or silly at best, and mindless or dangerous at worst.

Again, to close, consider textualism, literalism, "just apply the words" as applied to "liberty" and "due process" and "equal protection"--even to the 1st Amendment's terms of "religion" and "speech" and "press."
What is the clear, unmistakable, and specific meaning of each of those that would enable the Court to "just apply the words?"
And even if some of those terms--perhaps "speech"--were susceptible of a specific meaning, should the Court actually limit the Constitution's protection to that? Exclude all other forms of expression?

And then there are terms such as "no law" in the 1st Amendment.
Should the Court just apply the plain meaning of that?
"No law" against any religious, expressive, or press activities regardless of the dangers or risks they present to health, safety and security?

One would certainly hope not.
And certainly hope that those who advocate textualism, literalism, "just apply the words"--and complain "that's not exactly what it says"--would actually consider the realities and ramifications before they spout that utter nonsense.