Professor Harold Lloyd publishes, ‘Neil Gorsuch? Originalism and the Ten Commandments,’ on Huffington Post blog

Photo of Professor Harold Lloyd

Professor Harold Lloyd published the following, “Neil Gorsuch? Originalism and the Ten Commandments,” on The Huffington Post blog on Feb. 27, 2017.

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Current Supreme Court nominee Neil Gorsuch claims that judges should “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be . . . .”

On its face, this is at best an odd claim. Laws are generally forward looking in their desire to govern future behavior. And even if we could always focus back to determine legal meaning, why would we want to disconnect meaning from ongoing life in such a way? Why, for example, should the absence of email in George Washington’s day mean our modern use of email isn’t covered by our modern notions of “speech”? Excluding email from “speech” today would be silly and we have refined “speech” to include email in both law and in life. Of course, if we refine meaning for “speech” and “email,” why shouldn’t we do the same for other things in other contexts as they change with time? It’s hard to see how Originalism’s odd backwardness isn’t fatal from the outset.

Unsurprisingly, Originalism has more problems. By focusing on the understanding of a contemporaneous “reasonable reader,” Gorsuch’s Originalism confuses audience understanding of speaker text with speaker meaning itself. This is a big mistake. To see why, first imagine that I write the following: “I will point to a monarch tomorrow.” (For the fun of it, I’ve made this statement’s truth and meaning turn on a future context.) If I mean a butterfly when I use “monarch” in the text, that is by definition what I mean. Even if every other current “reasonable” person in the world thinks I mean to point to a king since a king is to be in town tomorrow, “monarch” still means a butterfly here. To claim otherwise turns expression on its head: the audience becomes the speaker. Originalism would similarly turn law on its head. Subjects would effectively trump sovereigns since audience meaning would trump sovereign meaning (no pun intended). How can this make sense?

Another problem with Originalism is that speaker meaning includes references, concepts, and understandings that speakers often expect to be updated and corrected over time. Imagine, for example, that I endowed a fund in 1990 “to explore the planets in our solar system.” If another planet is discovered tomorrow, I would consider that additional planet to be covered by my initial term “planet” even though I couldn’t have known of the additional planet back in 1990. I can say that with certainty because I’m the speaker. However, mustn’t the “reasonable” reader of 1990 exclude the new planet from the list since he couldn’t have known of the planet? I would hope Gorsuch would respond that the reasonable reader of 1990 could include the new planet because he could interpret “planet” to mean that term as it is understood from time to time. But wouldn’t that response effectively abandon Originalism?

Were such paradox, confusion, and error not bad enough, confusing “a reasonable reader’s understanding” (whatever this might arguably mean) with speaker meaning provides tempting cover for activist judges to pick definitions of words that best suit their politics in reaching a result. Just pick up any dictionary, flip through it, and you’ll see what I mean. You’ll soon find terms with conflicting definitions permitting an expansive judicial license. Additionally, reactionary judges can actively work to take us back in time since the very method they use involves such retrogression. Why would we wish to encourage any of this?

Given the multiple problems with Originalism, I remain amazed at how many reasonable people (especially reasonable conservatives who often define themselves in large part by the high value they put on justice and the rule of law) take the doctrine seriously. Baffled by this, I’ve written at length about the problems with such an approach. I’ve also written about Justice Scalia’s confusion and inability even to articulate a consistent definition of Original Meaning. In addition to words, I’ve even tried using art to point out the flaws in Originalism.

Since I suspect many non-lawyers feel uncomfortable exploring Originalism with legal texts and therefore embrace their Originalism mostly out of political loyalty, I’ll try an approach here that avoids such discomfort. Since the logical and practical problems with Originalism are the same whether we take religious or secular rules and laws, I’ll use Originalism to explore the Ten Commandments. How does Originalism fit with a conviction that there are Ten Commandments setting out God’s clear message to the world? Since Originalism elevates contemporaneous “reasonable reader” meaning (here ancient people reading stone tablets) over speaker meaning (here God’s meaning), the prognosis can’t be good.

In performing our inquiry, let’s again remember that an Originalist like Gorsuch would look backward to “text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.” However, when we look “backward” for the text of “Ten” Commandments listed and numbered in the Bible, we won’t find such a list of ten. Instead, we’ll find two places in the Bible (Exodus 20:1–17 and Deuteronomy 5:4–21) which support such a list though we could come up with different numbers and texts of Commandments. Our results will depend on what we choose to include or exclude—for example is the prohibition of bowing down to other gods included in not putting other gods first or is it a separate command? Our results will also depend upon how we group what we find. Thus, neither the precise text of the refined rules nor the number “ten” is mandated by these block sections of text from Exodus and Deuteronomy. To show what I mean, I point to a nice Vatican outline of sources to back up one suggested list of “Ten” Commandments to take us forward (not just backward) in life.

This outline nicely underscores the framing choices required before one can even get to a text to interpret. The Vatican clips off parts of Exodus and Deuteronomy that I think should be included as shown by comparing the Vatican’s citations with mine above. I would ask readers to look at the Scriptures here and come to their own initial judgments. They in fact must do this before they can be sure that they are on solid ground in any further exploration of the Commandments.

Before Gorsuch could reasonably purport to find how any “reasonable reader at the time of the events in question” would read the Commandments, he, too, must first ask if he has the right text before him. “Objective” talk of a “reasonable reader at the time of the events in question” can’t hide the flexible framing choices Gorsuch also has to make before he can have any text to interpret. Interpretation and framing of text itself (which process as we see here can be unobjectionably flexible) must precede framing and interpretation of the meaning of that text—how else can we have a text to interpret?

Once we’ve used our judgment as to the content and number of the list of Commandments (a process where reasonable minds can differ), we next have to interpret the text that we have framed. Purporting to rely on the hypothetical conclusions of a “reasonable reader at the time of the events in question” in light of “text, structure, and history” won’t lead us to any clear answer about what God meant. In addition to our own (modern?) judgment that we must bring to what “reasonable” means here (which opens a whole new line of debate in itself), any such “reasonable” readers of the time would would almost certainly disagree on what the text, structure, and history all mean. If you can’t covet your neighbor’s wife, can you covet the wife of someone in another tribe or country? Why use “neighbor” if you meant that as a universal prohibition? In ancient tribal societies whose understandings Gorsuch would presumably find determinative (or at least very strong evidence of meaning), these are not frivolous questions. Is a wife free to covet another’s husband? If not, why wasn’t “spouse” used instead of “wife”?

“Kill” can’t be taken literally since, among other reasons, we swat insects that bite us, the Bible speaks of animal sacrifices, we pull up weeds, and we must have reasonable rights of self-defense. Should we therefore take “kill” to mean “murder” as some translators would do? But if we do this, are manslaughter and abuse of animals, for example, then okay? I don’t think this would be reasonable (at least by today’s standards—I’ll leave it to Gorsuch to divine ancient tribal understandings here). But if we reject “murder” as the right term, such rejection doesn’t give us a proper reading. We’re still going to find that reasonable people will differ on what if anything should replace “kill.”

Even worse, wouldn’t using “reasonable readers at the time of the events in question” risk leading us to some obviously-wrong answers? Does the prohibition of “strange Gods before me” presuppose there are other gods? Wouldn’t the common polytheism of the time suggest that many reasonable people of the time would say “yes”? But isn’t this the wrong answer? And how would the Trinity square with a prohibition of “strange Gods”? “Reasonable readers at the time of the events in question” would have had no inkling of such a notion and would no doubt have found it “strange” to say the least. But this would again lead us in the wrong direction—at least for those of us who are Christians. What does a prohibition of adultery mean to people who had multiple wives? Do we really want their understanding driving today’s meaning? And would period dictionaries of “original meaning” really help Saint Peter find the nonsense in the Polemics of Herod Antipas had Herod truly spoken these verses at Heaven’s Gates?

We need Justices who understand how language really works. I at least have no trouble saying that the First Commandment’s prohibition of “strange Gods” doesn’t prohibit faith in the Trinity despite what a “reasonable reader at the time of the events in question” would have thought. The fact that “reasonable reader(s) at the time of the events in question” wouldn’t have known of the Trinity and would have had different notions of marriage from our own doesn’t mean that God’s meaning did not embrace the Trinity and the monogamous marriage concepts we have today. Similarly, the fact that people considered to be “reasonable” readers in our earliest history (and even at such later times as the Lincoln-Douglas debates) could not see blacks as fellow souls “created equal” who were also “endowed by their Creator with certain unalienable Rights” including “Life, Liberty and the pursuit of Happiness” doesn’t mean that blacks ever lacked or lack such status

Originalism just doesn’t work. A “reasonable” contemporaneous reader’s “understanding” of “equal protection” or other law simply cannot trump the actual meaning of such law any more than ancient audiences’ understanding of the Decalogue can trump God’s meaning. This isn’t a mere point of logic. As Lincoln recognized, “reasonable” people can be terribly wrong about original speaker meaning and error needs to be correctable. We must therefore have a functional judiciary that that operates in the present and looks forward as well as backward. This means there can be no place in a just and rational Supreme Court for Originalism, a doctrine that focuses “backward, not forward,” that reduces chances of correcting error by miring itself in the past, that rejects basic truths about us, about our language, and about our law, that subordinates speaker meaning to definitions plucked from dictionaries, that encourages judicial activism in choosing which definitions to pluck, and that shrouds itself in the pretense of objective justice.