Notre
Dame Law School advertises itself as the place to go to become "A Different
Kind of Lawyer." In a 2006 commencement speech, then Associate Professor Amy
Coney Barrett wondered what that meant, and ultimately concluded that "if
you can keep in mind that your fundamental purpose in life is not to be a
lawyer, but to know, love, and serve God, you truly will be a different kind of
lawyer."
https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1013&context=commencement_programs.
After a dozen years in Catholic schools, I now belong to
the most popular branch of Catholicism -- the lapsed. But I still recognize
"to know, love and serve God" as what a Catholic high schooler would
write to ace a religion exam, inarguably right since it's cribbed from the
first paragraph of the Catechism. It is striking not for its dogmatism, but
because it is so boringly
pedestrian.
I start here because soon-to-be-Justice Barrett's common
(and I don't mean that as a compliment) Catholicism rhymes, sort of, with her
espoused legal textualism and originalism. Textualism is a way of reading statutes and the
Constitution that looks only to the words on the page, and nothing else.
Originalism goes one step further, and looks to the "original" meaning of those
words when they were written and not their meaning
today. All three privilege words over judgments, as
if words were more important than the reality behind them. Sort of like saying
"to know, love and serve God" without a clue what that means in the real
world.
The
Gospel of John starts, "In the beginning was the Word." Except that in the
original Greek, the word for "word" -- "lexis" -- isn't
there. What John really says is that in the beginning was the
"logos." "Throughout most schools of Greek philosophy, this
term was used to designate a rational, intelligent and thus vivifying principle
of the universe." https://s3.amazonaws.com/snsocietymedia/wp-content/uploads/20170926172628/Logos-in-Greek-Culture.pdf
It might as easily be another way to say
"God," but "In the beginning was God" doesn't say much.
Logos connotes concepts and ideas, prior to and bigger than
any "word" that tries to express them. The logos is always
just beyond the reach of the lexis grasping for
it.
But to equate
"the Word" with "God" gives the word more weight than it deserves. That burden
is what makes textualism and originalism creak. Textualists and originalists,
like the late Justice Antonin Scalia, Barrett's mentor, argue that words must
be primary because otherwise judges could read statutes and the Constitution as
makes sense to them, thereby usurping the legislature's prerogative to make
policy decisions. Absurd statutory or Constitutional results should be fixed by
amendments, not by asking courts to "rewrite" them so they work
better.
That's not a
frivolous position, and all Supreme Court Justices are now textualists to a
degree. Even the late RGB interpreted the Dodd-Frank whistleblower retaliation
provisions as a textualist, leaving it up to Congress to fix the law if it
wants to avoid results that some say don't make sense. See
https://sterntannenbaum.com/wp-content/uploads/2018/10/SEC-Whistleblower-Retaliation-After-Digital-Realty-00070382xB16F4.pdf
Like everything in life, it's a matter of
degree. It's when we become -- shall we say dogmatic? -- that trouble
brews.
Socrates wrote
nothing. He believed the only way to approach the logos was
by dialogue, by talking things through. Something written acquires the aura of
authority, and Socrates did not think that was a good thing. The mind gives
authorities too much importance, and closes off avenues of thought in deference
to them. As Zen master Shunryu Suzuki observed, "In the beginner's mind there
are many possibilities, but in the expert's there are
few."
Jesuit scholar
Walter J. Ong knew this better than most. Ong studied how the 16th Century rise
of what today we would call textbooks degraded education by diminishing the
role of oral discourse. See Ramus, Method and the Decay of
Dialogue (1958) and Orality and Literacy (1982).
Ong's point was that over-reliance on dead words on a page was the start of a
general dumbing down. Of course, education was made more efficient in the
process, but something's always lost when something's
gained.
In 1990, Ong
wrote an essay on another misunderstood word -- "catholic." It is usually
interpreted to mean "universal," but it doesn't.
"Universalis contains a subtle
note of negativity," Ong wrote. "Katholikos does not. It is
more unequivocally positive. It means simply 'through-the whole' or 'throughout-the-whole.' " Drawing on one of Jesus's parables, Ong likened
Catholicism to yeast, that interacts with all sorts of flour, to make many
kinds of bread. "The church does not have from the start everything it will
later become, any more than the yeast does . . . If, however, yeast nourishes
itself on the dough in which it is placed, it does not do so in such a way as
to spoil the dough. . . . It makes the dough more usable, more nourishing."
https://www.bc.edu/content/dam/files/offices/mission/pdf1/cu13.pdf.
In much the same way, our own experiences necessarily
nourish our understanding of the words we use. When I was a kid, a "telephone"
was a heavy object wired into the wall, with a dial that you stuck your finger
into and rotated. If you got the holes right you might end up talking to
someone. My 10-year old self would never have included an iPhone within my
original understanding of the word "telephone." Likewise, it's silly to pretend
that Alexander Hamilton would have considered an AK-47 in the hands of a mad vigilante
lexically equivalent to the bayoneted muskets of well-regulated militiamen. If
that's what Judge Barrett means by originalism, the doctrine falls apart on
many levels. Not the least of them, with respect to the Constitution at least,
is that no one living today really knows what the Founders meant when they used
their words, because none of us has any idea of the world they experienced. All
we know are the meanings that our own experiences permit us to give their
words.
But John Marshall did know.
Marshall was a member of the Virginia House of Delegates and a leading
Federalist when the Constitution was drafted. He led the ratification effort in
Virginia. He later became our fourth and arguably most influential Chief
Justice of the Supreme Court. This is how he thought the Constitution should be
interpreted: "We must never forget
that it is a constitution we are expounding . . . intended
to endure for ages to come, and consequently, to be adapted to the various
crises of human affairs." For an originalist view of constitutional
interpretation -- from a genuine original at that -- look no
further.
Ong's Catholicism too has endured for ages, because it
adapted to and drew from the cultures it encountered. As he wrote about yeast,
"It not only grows in what it feeds on, but it also improves what it feeds . .
. The church transplanted from any given culture to a new culture can live in a
way that fits that particular new culture without losing its own identity, just
as in doing its work of leavening, yeast does not sacrifice its own identity
but remains growing yeast." To be Catholic is to remain open to whatever comes
of diverse dialogue and social interaction. It was in the spirit of Ong's
Catholicism -- and even of Marshall's Constitution -- that Pope Francis
famously said of a gay priest, "Who am I to judge?" -- and now comes to support
same-sex civil unions. https://www.nytimes.com/2020/10/21/world/europe/pope-francis-same-sex-civil-unions.html.
Now the drama's done and Amy Coney Barrett will join the Supreme Court. She's the woman. But we really needn't worry about her being "too Catholic." If anything, she's not yet Catholic enough.