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Textual Literalism and Legal Positivism: On Bostock and the Western Legal Tradition

For centuries, judges, lawyers, and legislators agreed that the object, end or purpose of the law—more precisely, the “mischief” that it was enacted to overcome—is crucial for determining its meaning. Any uncertainties in the meaning of the terms employed by the lawgiver must be resolved in accord with general custom and common usage at the time the law was enacted. Bostock is the most recent example of the Supreme Court violating this foundational principle of the rule of law.

Much ink has been spilled about the Supreme Court’s decision in Bostock v. Clayton County, in which Justice Neil Gorsuch held that the plain meaning of the relevant words in Title VII of the Civil Rights Act of 1964 entails forbidding employment discrimination on the grounds of sexual orientation and gender identity as part of forbidding discrimination based on “sex.” The decision appears to be a major step toward bringing to completion the Court’s legal institutionalization of the sexual revolution that began in 1965 with its fabrication of a general right of privacy in matters concerning sexual intimacy.

While the dissenting opinions of Justices Alito and Kavanaugh are sufficiently persuasive to defeat the majority’s inclusion of sexual orientation and gender identity within Title VII’s understanding of “sex,” I wish to bring to light another feature of the issue before the Court in Bostock. This feature is the wider jurisprudential background that bears upon not merely the issue in these cases, but legal interpretation more generally. One can only hope that the approach offered in the majority opinion does not become the new normal, because such a move would trash more than two millennia of legal development.

The Rules of Interpretation in Western Jurisprudence

Justice Gorsuch’s opinion for the Court in Bostock has been hailed as an exercise in “textualism,” an “-ism” that is often touted for its apparent simplicity—a simplicity that is, sadly, most often illusory. The “textualism” employed by Justice Gorsuch in Bostock is not merely wrong (as Justice Kavanaugh effectively demonstrates), but a blatant circumvention of time-honored rules of statutory interpretation in the Western legal tradition. Mere analysis of the words in a legal text is not—and has never been—an end in itself for courts. Rather, it is a means of assisting courts in ascertaining the will of a lawgiver. In the section on “Powers and Duties of Judges,” Justinian’s Institutes declares that “[a]bove all he [the judge] must be sure not to depart from the statutes, imperial pronouncements, and custom.”

Following Justinian, in the Anglo-American legal tradition the most important conventions for interpreting legal documents embody various mixtures of text, tradition and logic. All have the sole purpose of directing courts in their search for the legislative will. In other words, these rules are all “intentionalist”: they are premised on the idea that there is a “true” meaning underlying any written legal text, and that this meaning is founded on the historical intentions of the makers of that text.

In the words of William Blackstone, the most influential legal commentator of the American Founding era, one must interpret the law “by signs the most natural and probable.” These signs include the words, not construed literally, but “understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use.” Also included for consideration are the context, the subject-matter, the effects and consequences, and the reason and spirit of the law, or “the cause which moved the legislator to enact it.” On this last point, Blackstone adds that “when this reason ceases, the law itself ought to cease with it.”

Blackstone did not invent these rules. They are based on a tradition that runs back at least as far as the Twelve Tables of Roman Law. Indeed, Blackstone relies on the Twelve Tables, Cicero, Samuel Pufendorf, and canon law in his exposition of the rules. In a formulation almost identical with Blackstone’s, the great seventeenth-century Dutch jurist Hugo Grotius says that the “measure of correct interpretation is the inference of intent from the most probable indications.”

Likewise, Emmerich de Vattel insists that words “are only designed to express the thoughts; thus the true signification of an expression, in common use, is the idea which custom has affixed to that expression. . . . For, by a true interpretation, we endeavor to discover the thoughts of the persons speaking.” Thus “the reason of the law . . . that is to say, the motive which led to the making of it, and the object in contemplation at the time,—is the most certain clue to lead us to the discovery of its true meaning. When once we certainly know the reason which alone has determined the will of the person speaking, we ought to interpret and apply his words in a manner suitable to that reason alone.” Finally, Vattel concludes that “in unforeseen cases, that is to say, when the state of things happens to be such as the author . . . has not foreseen, and could not have thought of, we should rather be guided by his intention than by his words.”

These are just a few of the most prominent examples in a seemingly endless train of commentary —with few if any contrary examples. They attest to a centuries-long agreement that the law cannot be read from the mere words of a legal text, but only from the will, or intention, of the lawgiver. Discernment of intent must begin from a consideration of the words used by the lawgiver to express the law, but it cannot end there. The object, end or purpose of the law—more precisely, the “mischief” that it was enacted to overcome—is crucial for determining its meaning. Any uncertainties in the meaning of the terms employed by the lawgiver must be resolved in accord with general custom and common usage at the time the law was enacted.

This principled approach to determining the meaning of legal texts is not a mere convenience to be disregarded whenever it is found inconvenient by a judge or court. It is a set of universal rules developed by civilian and common lawyers alike over a long stretch of time from the dawn of civilized legal order in the West. It has never been disavowed even by a modern Supreme Court bent on imposing its will on the American people via an illegitimate “living constitution.” Rather, the Court simply ignores the tradition when it is inconvenient, and pays it lip service when convenient. To abandon this long-standing approach is to risk a descent into lawlessness, and that is exactly what the Court’s Bostock opinion portends.

Textual Literalism and Legal Positivism

Textual literalism is an illicit preoccupation with the words of a writing divorced from consideration of the meaning being communicated by the writer. According to Vattel, it is a species of fraud: “Good-faith adheres to the intention; fraud insists on the terms, when it thinks that they can furnish a cloak for its prevarications.” Pushed to its logical extreme, as was done in the Bostock opinion, this kind of textual preoccupation generates meaninglessness—which is exactly what an interpreter wishing to attribute meanings not intended by the writer wants to do. Under this approach, words become mere empty vessels into which interpreters can pour anything they like.

We have been heading down this road since legal positivism began its rise in the late nineteenth and early twentieth centuries. Prior to the onset of legal positivism, the judge’s art was universally conceded to be a process of discovery, and what is to be discovered is the ratio legis, the “reason of the law.” Recall that in the formulations of Blackstone and Vattel noted above, the reason of a law is the motive that impels the lawgiver to enact it, the mischief that is to be overcome. Since the ratio legis constitutes the main ground and justification of the law, it follows that the meaning of the law transcends the words and the text has a source outside itself. That meaning is the objective truth of the law that is to be discovered and applied by the court.

Under positivism, however, there is no objective truth—legal or otherwise—and so the court can make up any meaning that it likes to fill the empty vessel that constitutes the text of the law. Thus textual literalism is simply a judicial variant of legal positivism in action. It is the logical outgrowth of a jurisprudence that has been emptied of objective truth, in which law is merely the command of a sovereign bully having the power to visit pain upon subjects. Ironically, it is also—at bottom—lawless.

Thomas Aquinas says in his Treatise on Law that an unjust law is not fully law, except in a purely conventional or “perverse” sense. For a law to be just, it must be oriented to the common good, and it must be legislative. Thus judicial application of law is not law. After quoting Aristotle, who said that it is “better that law direct all things than that they be left to the decisions of judges,” Thomas goes on to explain why:

First, indeed, it is easier to find the few wise persons sufficient to establish right laws than the many wise persons necessary to judge rightly about particular matters. Second, lawmakers consider over a long time what to impose by law, but judges reach decisions about particular deeds as cases spontaneously arise. And human beings can more easily perceive what is right by considering many instances than they can by considering only one deed. Third, lawmakers decide in general and about future events, but presiding judges decide current cases, and love or hatred or covetousness affects such decisions. And so their decisions are perverted. Therefore, since few embody the justice required of a judge, and since that justice can be perverted, it was necessary that law determine, whenever possible, what judges should decide, and commit very few matters to the decisions of human beings.

This statement is no less true today than it was in the thirteenth century. The will of the lawgiver, not the will of the judge, is the law. It is the lawgiver who is charged with the job of advancing the common good through legislation. The common good cannot be advanced through adjudication, which is about advancing the good of particular individuals involved in cases and controversies by impartial administration of justice according to standing law. According to Chief Justice John Marshall in Marbury v. Madison, “[t]he province of the court is, solely, to decide on the rights of individuals.” That is why the Constitution carefully limits the judicial power to “cases and controversies.” It is not the job of the courts to advance the common good, the public interest, the general welfare, or any such equivalent goal. But that is what the Court tries to do in Bostock, as it has been trying to do since the onset of the living constitution in the twentieth century, in derogation of the constitutional separation of powers and to the ruination of our culture. Hence Justice Alito is correct when he pejoratively describes the Court’s ruling as “legislation.”

Bostock reminds us why faithful adherence to the traditional rules of interpretation is so important. When the Court employs Bostock-style textual literalism, unmoored from the constraints imposed by a more rigorous originalism tied to the will of the lawgiver, it abdicates the judicial function and intrudes into the legislative domain, as salivating progressives began to envision on the very day of the decision. As an illegitimate exercise of judicial supremacy, Bostock should not be regarded as law. Justice Alito calls it an act of pure legislation. I would add that it is an act of legislation the Court has no legitimate authority to make.

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