Recent weeks have seen a sudden slew of bureaucratic and judicial action on the question of public accommodation of self-identified transgendered individuals. In one of the latest moves, a decision from the Fourth Federal Circuit struck down a Virginia school board ruling that children must use the bathroom corresponding to their biological sex. As Hadley Arkes notes, one of the ruling judges argued that while the text of the Civil Rights Act barred discrimination based on sex, that text could now be interpreted to preclude discrimination based on “gender,” a term the modern use of which would have been utterly foreign to the lawmakers who composed that bill. Here, a judge has effectively re-written one statute in order to invalidate another statute with which he disagrees. This is a phenomenon with which we are becoming all too familiar, and it is no exaggeration to call it a danger to true freedom.
The root of republican democracy is the consent of the governed. Citizens elect representatives to make laws, and if laws are passed that are opposed to public sentiment, the citizens can respond by removing the legislators. This mechanism is intended to keep politicians accountable to those whom they represent—if their legislative action ceases to be representative, then the legislators will cease to be representatives.
The judicial branch of government is meant to serve as a link between the legislature that crafts laws and the executive that enforces them. Laws are written generally, and they must be applied to particular cases. The judge has the responsibility of determining whether a given case falls within or outside of a law. Chief Justice John Roberts in his confirmation hearings described his judicial philosophy with an analogy that is both intelligible and accurate: “I am an umpire; my job is to call balls and strikes.” Let’s tease this out. The perimeter of the strike zone is clearly defined in the official baseball rulebook using terms clearly intelligible to any reasonable person. The umpire is trained to judge whether or not a pitch has fallen within the strike zone. Likewise, a judge learns laws and precedents to train himself to determine whether a given case falls within the bounds of a law.
Orthodox. Faithful. Free.
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But let us extend the analogy. Imagine that the baseball teams’ owners wanted to institute a rule change expanding the strike zone, but knew that the teams would object. What if an umpire shared this conviction and started calling pitches differently? What if he defended his decisions, not by simply saying, “I call ‘em like I see ‘em,” but by challenging the definitions of the terms? Or perhaps not so much challenging them as calling them into question: “Who’s to say where the shoulders or the knees begin or end?” The umpire’s justification is an obvious twisting of the plain meaning of the text and intent of the rule. So the teams petition the head of umpires, the final court of appeal, so to speak, to make a judgment on the umpire’s motives. But the head of umpires is in sympathy with the umpire’s motives and finds in his favors. The teams are shocked, and finally appeal to the commissioner. And the commissioner, who works for the owners, agrees with the umpires and upholds the decision. Thus, the meaning of the rule is changed without the text of the rule being changed, against the will and the plain understanding of the players involved. The game has been hijacked from the teams.
This sort of “plain understanding” sense of law is crucial to an ordered society. In order for a law to be crafted, the legislators must be confident that the words they use will be understood to hold the meaning that the legislators intend. Likewise, in order for a law to be followed, the citizen must be confident that the words will be interpreted to mean what any reasonable person would interpret them to mean. Otherwise, the legislators could never be sure of the policy they were setting, and citizens could never be sure that they were following the law, or that they would be found to be following the law. Once judges feel free to interpret statutes widely, that confidence of the legislator and the citizen that is necessary for the rule of law evaporates.
Even more so, when the system begins to operate such that a judge can interpret the law or a statute or an article of the Constitution in a blatantly activist way with no repercussions, the opportunity to insert one’s own policy preferences or ideological stances into the law of the land will be all too tempting. And once this situation becomes the norm, as it increasingly is, politicians will speak outright about “ideological balances” on the court and will speak of judges in political terms, e.g. about “conservative” or “progressive” judges, rather than “competent” or, heaven forbid, “just” judges. Once this judicial mindset becomes the norm, confirmation hearings will not focus on the judgment of judges, but on the ideological positions they hold in certain key areas. Once this situation becomes the norm, important and fundamental questions in our society will be determined not by the will of the people nor by their governing texts, but by the arbitrary caprice of a small group of unelected individuals—and when the court has some semblance of “ideological balance,” these great decisions will turn on the will of just one person. And while these judges will still be tied to the words of the text to some degree, such that they will have to undergo verbal acrobatics to try to justify their conclusions, they will not require much, and will require less and less as they realize the lack of consequences that would follow, such that a justice could contradict the crux of his own argument within his opinion without any repercussions.
The point here is not to attack or uphold any particular political position, for the point precisely is that the interpretation of texts should not be a political exercise. There are some philosophers of the last century who argued that any act of interpretation is necessarily an arbitrary exercise of the will and an act of oppression, but these are the very same thinkers who argue so strongly for the fluidity of texts. So, it would seem, if you believe in the inherent fluidity of texts, you must also hold that interpretation is arbitrary and requires enforcement.
This is not to say that keeping one’s biases out of interpretation is easy. Much of twentieth-century philosophy was concerned with the problems of interpretation and the difficulty in achieving anything like an objective viewpoint. But one need not adopt an objective viewpoint in the case of interpreting law, but merely a common sense one. If I put a sign in the lawn saying “keep off the grass,” I reasonably expect people will understand that to mean that I am asking them not to go onto the grass. If someone were to walk onto the lawn and, when confronted, argue that they interpreted it as an advertisement against drug use, no one would call this interpretation equally valid to that intended by the sign’s maker. While some more artistic styles of writing are intended to have their meaning formed in the mind of each reader, the public and normative nature of legal documents necessitates that they have a public and common meaning. If the interpretation (and hence the meaning) of the document is fluid, then no one person’s interpretation can be said to be any more valid than any other’s.
So, when, as in the case with legal documents, a single interpretation is required, the defender of a “living constitution” must suddenly make an about-face and admit that their position at any given point requires an appeal to authority and force. That is, they are forced ultimately to say, “This is the meaning of this text because I am the judge and I say so.” Those who argued for the use of a fluid interpretation of the Constitution often say that such an hermeneutic is necessary to avoid oppression and authoritarianism; yet what is more authoritarian than “It is so because I say so”?
When the text of a law is no longer binding, the law is no longer a rule, but a tool to be manipulated by those who interpret and enforce it. We are left de facto with a government with fiat power, the de jure all but neutered. Such a society is no longer a nation of laws, but of wills. Such a nation will find its course hinging on the appointment of one judge to one seat on one court, praying that the judge has good judgment, and knowing that is a question that will not be asked. Such is nation is not a nation of laws, but a nation of lawyers. Who would want to live in such a place?