In the beginning was the word

Judge Amy Coney Barrett, Supreme Court Nominee, swearing an oath before God

The Senate hearing in consideration of the nomination of Amy Coney Barrett to the Supreme Court has focused in large part upon her self-description as an “originalist” and “textualist.” As to the former, Barrett says her role as a jurist is to determine the intent of a given law, and as to the latter, her role is to apply the literal meaning of the words used in a law.

Originalism requires examining history, the actual record of debate leading up to the creation of a statute, and an effort to determine what situation the law was written to address. In the case of the Second Amendment governing citizen possession of firearms, for example, originalists like Barrett interpret the amendment as addressing government’s legal ability to deprive citizens of their firearms, and have concluded that the Second Amendment was intended to prevent government from abridging the right to bear arms. The textualist approach covers the meaning of words and phrases, and an interpretation that focuses upon those meanings. Accordingly, a phrase such as “the right to bear arms” is taken to mean firearms, and given the absence of any further elaboration of what constitutes the firearms in question, the term firearms is used to cover armaments of all types, up to and including today’s assault rifles and weapons used by the military.

Interestingly, an originalist view of the use of the term “arms” in a document written in 1787 would imply that it means front-loading, one shot muskets, but somehow, originalists consider that historical context irrelevant. The textualist evaluation also avers the historical context altogether.

This is just an example of the way in which Barrett views the law. She uses an analytical approach based upon language and the belief that judicial decision-making must rely exclusively on the text of a given law in determining its application. Her approach, while on one side of the philosophical approach to applying the law, is not unusual. Laws are, in fact, created using words, and when it comes to American law, words really matter. When it comes to cases that come before the Supreme Court, it’s our written constitution and its amendments that matter, words that have been elevated to nearly sacred status.

The creation of sacred words, words with absolute meaning and authority, traces a path at once concrete and metaphysical. Words, after all, are phonetic constructs embedded with meaning, and can be regarded as sacred or profane. Writer Georges Bataille explored sacred words in his book Theory of Religion, in which he traces the origins of religious belief to humankinds’ development of tools. Tools, Bataille offers, became sacred even before words, the first objects of utility that enhanced natural physical abilities. In this respect, tools offered a supernatural addition to our human experience.

The use of words as tools of the law is no accident, but rather a natural application of externality into the interior experience of being human. Our western world’s inclination to view causality as effective, simply a matter of “connecting the dots,” inevitably leads to a rational mode of interpretation of words of law. Legal arguments are thus reduced to applying circumstances to predetermined consequences, and words are used to convey both. Our symbolic, word-based frame of reference has become synonymous with reality, and lawyering is nothing more than our attempt to force the totality of human experience into that frame of reference. The Bible tells us so.

3 thoughts on “In the beginning was the word

  1. As regards the second amendment, I take your point that, strictly, it means muskets. Surely at that time private citizens were not allowed, for instance, to own and operate fully armed men of war or batteries of cannon? And now, no sane person could argue that the right to bear arms allows private citizens to own flamethrowers or attack drones, not to mention surface to air missiles or tactical nuclear arms.

    1. My Second Amendment example may be too distracting; my primary point is the elevation of words to nearly sacred status; western law does not give as much weight to the complexity of causation, just effective cause. Thus mitigating circumstances are difficult to use in matters of law, as is mercy, except in sentencing recommendations.

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