Is Originalism a Sandwich?

In the latest iteration of her "notable sandwiches" series, Talia Lavin tackles the age-old question "Is a hot dog a sandwich?" She gathered a host of experts from a range of different disciplines to give their take, and while there wasn't a consensus, it seemed to me (I didn't count) that more leaned against it being a sandwich. The general thrust of the argument that most resonated with me, from sociolinguistics professor Matt Garley, was to frame the question as "Do people commonly or regularly refer to a hot dog (outside of this particular debate) as a sandwich?" In that light, the answer seems to be generally "no", even if it seems to formally meet the dictionary definition of a sandwich ("two or more slices of bread or a split roll having a filling in between.").

Later in the post, Talia gets a quote from Jesse Sheidlower, a lexicographer and former editor of the Oxford English Dictionary, who gave some insight on how dictionaries themselves approach this problem. Contrary to (perhaps) popular belief, dictionaries are not in the business of trying to give precise definitions that perfectly include and exclude everything that descriptively falls within the category-type of a given word. I'll quote him at length:

The general thing to know about dictionaries is that you're usually not trying to capture the complete and exact description of something; you're trying to get a general picture of what something means. This is hard enough for concrete nouns that we more or less know, like "horse" or "sandwich"; it's impossible with abstract nouns like "freedom" or "beauty". One of the most famous definitions in lexicography is the one for "door" in Webster's Third of 1961:

"a movable piece of firm material or a structure supported usually along one side and swinging on pivots or hinges, sliding along a groove, rolling up and down, revolving as one of four leaves, or folding like an accordion by means of which an opening may be closed or kept open for passage into or out of a building, room, or other covered enclosure or a car, airplane, elevator, or other vehicle."

This is what happens when you try to be exact—you get something useless.

So most dictionaries, that are written for native speakers and that assume a good-faith effort to understand the definition, give a reasonably broad definition, that will include most things that should be included and exclude most things that should be excluded.

There are, conventionally, two main types of lexicographers: lumpers and splitters. Lumpers include as much as possible ('liquid food' for soup); splitters write a dozen super-narrow definitions, and when a new variant comes up, they write another one.

Dictionaries are generally more lumpy than splitty. A sandwich is a food with something inside a bready thing. Trying to be super-precise is only going to lead to frustration (or the "door" definition above): Most people feel that a meatball sub is a kind of a sandwich but a hot dog isn't, but that's very hard to explain, so unless you have a definition like "… or a split roll having a cold or hot filling (that is not a solid length of sausage)…", you're kind of stuck.

If I can turn serious for a moment—and this is very serious—the reason that this is genuinely important, and not just a parlor game, is that people sometimes put a lot of faith in dictionary definitions. In particular, courts use old dictionaries to try to determine what words meant at a time when laws were written. But that is very much not how dictionaries should be used. If it's this hard to determine what a "sandwich" is, what are we supposed to do about words like genocide, or to bear arms? Or woman in reference to a trans woman? People literally die because dictionaries are misused. There are ways to attempt to answer these questions—corpus linguistics, sociolinguistic interviews—but thinking that a dictionary is an exact map of reality is not a correct one of these.

I wasn't expecting to see this point made in a fun post about the concept of a hot dog, but here we are. And it did crystallize for me an objection I've been flagging recently about "vulgar" textualism or originalism; a practice of judicial interpretation that purports to distinguish itself by close and careful reading of texts, but actually is just very bad at reading texts. Many of the cases that take this approach begin with a very close parsing of dictionary definitions in order to fix textual meaning. But this from the jump misunderstands what dictionaries are even trying to do. Even at the moment they are written, dictionaries are an at best imperfect map onto actual public meaning (the idea being that even if we were looking at a dictionary published today to answer the question "is a hot dog a sandwich", we'd likely be heading off in the wrong direction). And that gap only grows wider as time passes, because the actual meaning of words depends on a host of agreed-upon implicit assumptions and cultural horizons that are constantly shifting and temporally-contingent. 

We run into this question when trying to figure out how to apply an old word ("search") to technology that hadn't been invented yet when the word was written ("heat scanning"). One way of answering "is heat scanning a search under the Fourth Amendment" is to look at the dictionary definition of "search" circa 1789 and figure out if it fits. But that actually wouldn't really be the accurate answer, because what we'd actually want to know is if the relevant interpretive community would have generally used "heat mapping" as falling under the category of search. And that question, in turn, is essentially incoherent unless we also import into that community a host of surrounding cultural and linguistic practices that make "heat mapping" a legible concept that could be part of a robust linguistic pattern to begin with (if you plop down a heat mapper into 1789 without all of that context, then it's going to be seen less as a "search" and more as "eldritch magical witchcraft"). So what we're really asking when trying to figure whether heat mapping qualifies as a search today is "how would the relevant class of interpreters understand the relationship between these words, if they had the full cultural and linguistic context that we have today -- and at that point, our "originalism" is essentially just living constitutionalism.

Is the President Congress' Babysitter?

A newly-ascendent doctrine the Supreme Court has used to strike down disfavored executive regulations is the so-called "Major Questions Doctrine". The MQD, in essence, says that we should not assume that Congress has legislated on issues of major social or economic importance unless it does so very, very clearly. This means that even where the plain statutory text seems to authorize presidential action, courts can still nullify it if they decide that Congress' language was not "clear" enough given the magnitude of the policy at issue.

For example, in NFIB v. OSHA, the Supreme Court invalidated the Department of Labor's vaccine mandate despite statutory text authorizing OSHA to issue emergency rules when necessary to protect employees against "grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards." COVID-19, of course, is an "agent" which poses "grave danger" to employees, so it would appear based on the plain language that Congress had authorized this course of action. But no, said the Supreme Court -- if Congress wanted to authorize OSHA issuing blanket rules covering essentially all employers across the entire economy, it needed to be even clearer than that.

Many critics have assailed the MQD as the Court abandoning textualism when it conflicts with conservative policy preferences. In response, conservatives have tried to argue that the doctrine can be reconciled with textualism because the MQD comports with how ordinary readers read texts. In the student loan case, Justice Barrett made a popular version of this argument:

Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: "Make sure the kids have fun." Emboldened, the babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter's trip consistent with the parent's instruction? Maybe in a literal sense, because the instruction was open-ended. But was the trip consistent with a reasonable understanding of the parent's instruction? Highly doubtful. In the normal course, permission to spend money on fun authorizes a babysitter to take children to the local ice cream parlor or movie theater, not on a multiday excursion to an out-of-town amusement park….

Problem one with this defense is that it turns out Justice Barrett's intuitions may not be accurate. A new article actually empirically tested Justice Barrett's example and found that most respondents did not find the babysitter's actions to be unreasonable. Whoops. (Kudos to Ilya Somin for at least acknowledging that this study is countervailing evidence against his own affinity for the MQD).

But my problem with this analogy is a little different: is it really fair to characterize the President as akin to Congress' babysitter? The Executive and Congress are coequal branches of government. Their relationship is not as one-sidedly hierarchical as the parent who makes a one-off hire of a babysitter. If we adjusted the hypothetical so it was two parents, one leaving on a business trip and who tells the other "make sure the kids have fun this weekend!", I doubt anyone would find the choice of the stay-at-home parent to take the kids to an amusement park to be even remotely problematic.

Now, I'll concede a potential problem with the revised hypothetical: the relationship between two parents doesn't generally involve delegations of authority. Mom and dad both are generally authorized to make choices about the kids on their own initiative. By contrast, nominally under our separation of powers system the executive is only empowered to act upon authorization by Congress.

I'm not sure this objection fully holds, however, and in any event it can be easily traversed. It doesn't necessarily hold because -- as any couple knows -- lack of a formal hierarchy between spouses does not mean that it's impossible for there to be instructions and acrimony where they're not followed. If mom says "make sure the kids take a bath", and dad lets them get away with just running through the sprinkler -- well, woe is about to fall upon dad, and it'll be worse for him still if he comes back with "as a co-equal parent, I am equally authorized to make parenting decisions on my own initiative."

But even if we think the parent-to-parent relationship doesn't quite work, it still seems clear that the relationship between Congress and the President is still more distant from a parent and babysitter. So how about parent and grandparent. Take Justice Barrett's hypothetical, but it's grandma watching the kids for the weekend. Grandma, unlike dad, does only have delegated authority to look after the kids. But nonetheless, I think very few people would think that grandma's amusement park trip would be unreasonable or out-of-bounds. The fact that grandma is herself part of the family, and not some random acne-faced fifteen year old, makes a huge difference in terms of what should be deemed reasonable.

When Congress passes laws for the executive to enforce, it is not "delegating" power to some ad hoc temporary babysitter who may or may not ever be hired again for $20/hour plus tips. It is interacting with an intimate family member with whom it has a long-standing relationship that will continue across a multitude of cases into perpetuity. That sort of relationship, it seems to me, makes the MQD less feasible. That Congress wouldn't be presumed give some random stranger authorization to make "major" alterations to social or economic policy does not mean that Congress wouldn't be presumed to give the President of the United States such alterations -- particularly when we're talking about legislation that is by its nature inherently imbricated in issues of major social and economic concern (workplace safety, environmental protection, educational access, and so on).

The Era of Conservative Legal Formalism is Over

When I was in law school, most legal liberals had a touch of anxiety that we were supporters of "activist judging".

That isn't to say we thought we were lawless. We just knew what our sin was, and our sin was being too tempted to be "flexible" with the law in order to secure important progressive ends of justice or equality. Legal conservatives had the opposite sin -- a too-rigid commitment to legal formalism that might cause them to unnecessarily endorse suffering or injustice based on slavish fidelity to legalistic principles. Whether earned or not, conservatives were seen as the mantle-holders of technical legal prowess (albeit perhaps at the expense of the bigger picture).

These were just fears, and so perhaps they never reflected reality. What I can say is that these days, those fears even as fears are gone. I know of no legal liberals these days who think of judicial conservatives as being the guardians of (too much) legal formalism. 

Reading folks like Steve Vladeck or Rick Hasen -- who if nothing else are technical experts in their respective domains (of federal courts and election law, respectively) has emphasized not just the moral objectionability of many recent right-wing rulings, but their legal sloppiness. They are absolutely not instances where a slavish devotion to legal formalism is leading to unpalatable results. They're instances where judges are just completely ignoring legal forms in order to stretch to the unpalatable result.

The era where the battle lines were "conservative formalists" versus "progressive pragmatists" are over. Conservatives have lost even the perceived dominion over being committed to formal legal procedures -- no small feat, if I'm right that even legal liberals for a long time had tacitly conceded that to be a conservative strength. But this is indeed the era where conservative judicial activism is running amok; right-wing judges running roughshod over any sort of professional legal principle in the manic pursuit of conservative policy objectives. If nothing else, it's restoring confidence among the legal liberals in our own technical aptitude. Small consolation, I know, but perhaps it will lay the foundation for a broader backlash.

You Can't Take "Intent" Out of "Discriminatory Intent"

There is currently a debate regarding whether courts can use President Trump's campaign statements regarding his Muslim ban -- to wit, that it was indeed a "Muslim ban" -- as evidence of its unlawful character. Matthew Segal at Just Security says yes. Jeffery Toobin at The New Yorker says no. I confess I find Toobin's position baffling, verging on incoherent, and resting on fundamental confusion about how "intentions" might or might not matter in legal interpretation (a quick note: Toobin says he is basing his view on a forthcoming article by Cardozo Law Professor Kate Shaw. I haven't been able to locate a copy of Shaw's piece, so my critique is not directed at her or her arguments). Perhaps most alarmingly, Toobin's view continues a trend of making discrimination cases virtually impossible to win even in concept.

As we know, many of the judges who struck down Trump's travel ban did so, in part, by relying on statements by Trump and his aides telling us that this ban was designed to target Muslim immigration to the United States -- an unconstitutional motive. Toobin finds this "unsettling", as it implies that "an identical order would be upheld if Barack Obama had issued it, but that this one was invalidated because Trump was the author." As far as Toobin is concerned, either the "Muslim ban is constitutional or it's not" -- Trump's words don't matter; the constitutionality of the same legal text can't depend on extra-textual utterances by whoever happened to be the author.

I said that Toobin's argument rests on a fundamental confusion regarding how authorial intent might matter in legal interpretation, so let's parse that out. Consider a rather famous case where a federal statute criminalized the "use" of a firearm "during and in relation to . . . [a] drug trafficking crime." The defendant traded a gun for narcotics, the question was whether this qualified as a "use" under the statute. Imagine two universes, where the statutory text was identical, but had different primary authors:

In Universe A, the author says he is introducing this law because "I want to get as many criminals involved in drug trafficking off the street, for as long as possible. And since I know many drug traffickers carry guns, many drug traffickers will face stiffer penalties under this law."

In Universe B, the author says he is introducing this law because "the use of guns to commit or threaten violence is a scourge on our cities, and it is essential that we differentiate between violent and nonviolent instances of the drug trade."

Legislator-A's statement seems to suggest that he intended for "use" to include use as a means of exchange, Legislator-B's statement may suggest that he did not so intend. But, one might argue, the same legal text (again, recall that the text of the law is the same in both universes) should not have different meanings simply because of extramural utterances by the author that are not contained inside the text itself. The law means what it means; these statements simply have nothing to do with it either way. On this score, Toobin would have many followers (albeit not universal agreement).

In the above example, the question is whether stated intentions matter in determining what the law means -- who is included, who is excluded, what acts are allowed, what acts are illicit. But note that's not how intention is being used in the Muslim ban case. Courts are not using Trump's statements to determine whether or not the order does or does not encompass John Q. Muslim -- that is at least somewhat clear (relying on questions like whether he is coming from one of the covered countries). Rather, the question is whether or not the ban is lawful in the first instance -- not about its meaning, but about its legitimacy.

I stated that Toobin's argument basically makes discrimination cases impossible to win, and this distinction explains how. Suppose that Zack, an African-American man, has just been told by his boss Andrea "you're fired." Again, divide ourselves into two universes:

In Universe A, Andrea is racist, and she fired Zack because Zack is African-American.

In Universe B, Andrea is not racist, and she fired Zack because she doesn't like the color of Zack's shirt (in an at-will employment context, the reason doesn't have to be a "good" reason).

In both universes, Andrea has taken the same action -- she's fired Zack. Even more clearly than in the "use a firearm" case, the meaning of what Andrea did does not change based on her intentions -- it is unambiguous that she fired Zack. But the legitimacy, the legality, of her action absolutely depends on what her intentions were: in Universe A, Andrea has engaged in unlawful racial discrimination, in Universe B, she hasn't. That's because in American law the intention that motivates the action is what distinguishes discriminatory versus non-discriminatory conduct. And so here we have a clear example of what Toobin derides as absurd: the same action, the same text, is lawful or unlawful based entirely on who did it -- or more properly, based on the licit versus illicit motivations of who did it.

In this, discrimination cases are somewhat of an outlier in American law (though not completely so). For the most part, we assess the permissibility of a given law based on its effects, not based on the psychological motives that prompted it. In deciding whether a law imposes an "undue burden on a woman's right to choose" to have an abortion, for example, we're more concerned with the degree to which the law actually obstructs the ability to terminate a pregnancy. Intentions may be correlated -- it stands to reason that someone who wanted to impose such a burden is more likely to have written a law that does impose such a burden -- but they ultimately are not dispositive. A law intended to impose a significant burden that, in fact, does not do so will pass constitutional muster; a law that was not intended to seriously burden a woman's right to choice but turns out to be immensely burdensome should fail.

One could argue that discrimination law should operate in the same way -- it matters less what is in the headspace of any given actor and more the impact that it has on discrete and marginalized groups. So with respect to the Muslim ban, we might say that it doesn't matter why Trump did it, what matters is whether it has a disparate impact on Muslims (clearly it does), or whether it impedes their equal standing in American society (quite plausibly). But, for better or for worse, that's been firmly rejected by the judiciary. What matters is the intentions, and effects are only relevant insofar as they are probative of intent. In the inverse of the abortion case, we might think that an action that disproportionately and deleteriously impacts Muslims is more likely to have been motivated by anti-Muslim intentions than one which has no such disparate impacts; but ultimately the inquiry is solely about trying to figure out what motivated the action. And so again, it is entirely plausible given how anti-discrimination law operates that the same order, with the same impacts, could be lawful under one author (with neutral intentions) and unlawful under another (with racist intentions).

Obviously, lawyers are rarely stupid enough to simply admit that their client harbored a discriminatory motive. So much of discrimination litigation is about trying to suss out the actual motive in situations where the defendant insists that his or her intentions were pure as driven snow. It should go without saying that among the most powerful pieces of evidence one can put forward to establish a discriminatory motive is a declaration by the defendant that "I am doing this because of race/sex/religion".

Many people have commented on the emerging American trend of being less "racist" than "anti-anti-racist." Instead of affirmatively preaching racist policies, they instead stand aghast at anything actually being labeled "racist". How uncouth, how vulgar, how meanspirited! This instinct is the only thing that lets me make sense of simultaneously holding (a) that one can't call something discriminatory unless it was motivated by discriminatory intent and (b) that it's dirty pool to actually use someone's own direct statement of motivation as a means of establishing said intent. Talk about heads-I-win-tails-you-lose! If Toobin says we can't consider explicitly stated motives in assessing discrimination claims in a legal world where motive is legally dispositive, it becomes increasingly unclear what sort of evidence could establish an instance of discrimination even in concept. If (as Toobin holds) proper judicial interpretation doesn't incorporate statements of intention that lie outside the formal legal document, and "discrimination" only occurs where there is an illicit intent, then discrimination claims are impossible to win except in the absurdly rare case where the bad intention is somehow written into the document.

Quote of the Day

Johann Gottlieb Fichte previously gained mentioned on this blog for advocating that, as a prerequisite for their getting civil rights, Jewish "heads should be cut off in one night and replaced with others not containing a single Jewish idea." This quote, while equally revealing, is somewhat less revolting:

"What sort of philosophy one chooses depends, therefore, on what sort of [person] one is; for a philosophical system is not a dead piece of furniture that we accept or reject as we wish; it is rather a thing animated by the soul of the person who holds it."

Johann Gottlieb Fichte, The Science of Knowledge (Wissenschaftslehre) 16 (Heath and Lachs, trans., Appleton-Century Crofts 1970) (1797).

To some extent, our philosophies act as constraints on what sorts of behaviors we're willing to engage in, but to a much larger extent what behaviors we feel are important or valuable or worthwhile constrain the philosophies we are willing to accept. When last I made this point (with respect to our judicial interpretative philosophies), I illustrated it by a conversation in Firefly between River Tam and the bounty hunter Jubal Early:

River: You hurt people.

Early: Only when the job requires it.

River: Wrong. You're a bad liar. [...] You like to hurt folk.

Early: It's part of the job.

River: It's why you took the job.

Sometimes the fruits of our philosophical positions are just "part of the job." More often though, I suspect, they're why we adapted the philosophy in the first place.

Judicial Activism and Nazi Germany

Justice Scalia reportedly credited "judicial activism" of the style he attributes to modern liberals as being a driving force for the Holocaust.

This is an interesting critique less because of its inflammatory nature, or even because of its hypocrisy given the highest profile SCOTUS case of the last term was the notably originalism-less Shelby County decision, and more because of how it clashes with prior contributions to the "your preferred school of judicial interpretation is responsible for the rise of Nazism" school of critique. The most famous of these was the argument by natural law scholars (such as Lon Fuller) against legal positivists (such as H.L.A. Hart). A key point of disagreement between the two was whether an immoral "law" truly could be considered law. Fuller said no, while Hart contended that Fuller's position mistook what the law ought be from what the law is. Fuller rejoined that it was this outlook that allowed Nazism to be sanctioned by Germany's judiciary, as they felt obliged to follow the law as written.

I'm not saying I side with Fuller in this debate. I only observe that historically, the criticism leveled at WWII German jurists was not that they were too willing to adopt contemporary standards of "moral authority", but rather that they were too content to apply the law as it was written and understood by those who drafted it. Justice Scalia's argument is, to my knowledge, a distinct outlier and I'm curious to know what support, if any, there is for his position.

Quote of the Evening

Tonight's quote of the evening was found while reading Joseph William Singer's The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1 (1984), which ranks quite high on my list of "titles I'm bitter are already taken." But the quote itself isn't from Singer, but rather Nelson Goodman:

A rule is amended if it yields an inference we are unwilling to accept; an inference is rejected if it violates a rule we are unwilling to amend.

Nelson Goodman, Fact, Fiction, and Forecast 64 (4th ed. 1983).

20 Years

When one hears of a theory that posits that judicial decisions are caused by nothing more sophisticated than "what the judge had for breakfast", one assumes that it is the creation of some academic too long ensconced within the ivory tower. The phrase is attributed to the legal realist movement through Jerome Frank, and while it is a slight exaggeration of Frank's views (and thus a considerable exaggeration of the realist position, as Frank was well on their fringe), it does at least cast some illumination.

Frank believed that legal decisions are the product, not of legal doctrine, but of the fact-situation presented to the judge. Legal reasoning is just dressing to make it sound good. Moreover, Frank believed that how judges react to various fact-situations is nearly entirely idiosyncratic -- in that sense, it might as well go back to what the judge ate that day, for all the prediction one might do.

But Frank was not actually an academic at all. He was a trial attorney for 20 years, then chair of the SEC, and then a judge on the 2nd Circuit. Which I think makes his legal realist philosophy sound less ivory-towerish -- and more like a depressed drunk:

Let me tell y'somethin'. *hic* I've been, been practisin' law for 20 years. And it's all random. All of it. It's just whatever, whatever the judge thinks is right that day. Law -- you can find law for anything. Judges don't care. They just do whatever they think is right, and who knows what that is. 20 years of practice and it's, it's all random.

Or maybe not.