Statutory Originalism

February 26th, 2017

In most cases, originalism is associated with the interpretation of the Constitution. To understand provisions ratified in 1789, 1791, or 1868, scholars turn to contemporary sources to ascertain their original meaning. However, this modality is in no sense limited to the Constitution. It also applies to statutes, in what I think of as statutory originalism.

Many of the critiques of constitutional originalism apply with much weaker force to statutory originalism. First, the so-called “dead hand” problem is not present. While binding constitutional provisions are extremely hard to change–thus allowing the “dead hand” to control our polity–statutes can be easily changed with a mere majority vote in Congress. Second, while constitutional provisions are always present and binding, statutes that are unimportant often fall into desuetude due to a lack of enforcement. In this sense, bad statutes fade away, while (potentially) bad constitutional provisions linger indefinitely.

Third, and most importantly, it is far easier to ascertain the original understanding of a statute–especially one of fairly recent vintage–then a provision drafted two-hundred years ago. The volume of information attending the clandestine convention of 1787, while significant, is dwarfed by the legislative records of fairly mundane provisions enacted today. (Although I’ve written that the relevance of modern legislators’ statements–which may be motivated by a contrived attempt to affect judicial review–ought to be diminished). Further, lexicography–the study of language–is far more sophisticated today than it was two centuries ago. When reading a statute of some vintage, where the present-day meaning of a word has shifted, jurists can, and should look, to dictionaries at the time the provision was drafted, to ascertain its original understanding. Indeed, it is neither necessary, nor desirable, to find a dictionary from the same year as the statute. As Justice Scalia and Bryan Garner observed, “Dictionaries tend to lag behind linguistic realities.” If you are seeking the meaning of a well-established term in an 1819 statute, they wrote, ” it is generally quite permissible to consult an 1828 dictionary.”

Statutory originalism is most useful when the meaning of a word undergoes a fairly rapid linguistic evolution. Imparting a present-day meaning into a phrase that was selected by Congress some decades ago converts the U.S. code into a living breathing, document (a sort of living constitutionalism for statutes). Any arguments that support living constitutionalism–Article V is hard, and our laws must move with the time–apply with minimal force to statutes, which can be tweaked on the fly.

Perhaps there is no greater illustration of this dynamic today than the word “sex.” Title IX of the Education Amendments of 1972 prohibits discrimination “on the basis of sex.” 20 U.S.C. §1681(a). The 4th Circuit in GG v. Gloucester County School Board relied extensively on dictionaries to ascertain the meaning of “sex” in 1972. Judge Niemeyer’s dissent canvassed five contemporary dictionaries to establish the proposition that “sex” refers to the “physiological distinctions between males and females, particularly with respect to their reproductive functions.”:

Title IX was enacted in 1972 and the regulations were promulgated in 1975 and readopted in 1980, and during that time period, virtually every dictionary definition of “sex” referred to the physiological distinctions between males and females, particularly with respect to their reproductive functions. See, e.g., The Random House College Dictionary 1206 (rev. ed.1980) (“either the male or female division of a species, esp. as differentiated with reference to the reproductive functions”); Webster’s New Collegiate Dictionary 1054 (1979) (“the sum of the structural, functional, and behavioral characteristics of living beings that subserve reproduction by two interacting parents and that distinguish males and females”); American Heritage Dictionary 1187 (1976) (“The property or quality by which organisms are classified according to their reproductive functions”); Webster’s Third New International Dictionary 2081 (1971) (“the sum of the morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination which underlie most evolutionary change …”); The American College Dictionary 1109 (1970) (“the sum of the anatomical and physiological differences with reference to which the male and the female are distinguished …”).

The majority opinion by Judge Floyd likewise focused on the American College Dictionary (1970) and Webster’s Third  to “inform our analysis of how the term “sex” was understood at that time.” The full definition from Webster’s Third, is, by far, the most capacious:

the sum of the morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination which underlie most evolutionary change, that in its typical dichotomous occurrence is usu[ally] genetically controlled and associated with special sex chromosomes, and that is typically manifested as maleness and femaleness.

There is a reason why Webster’s Third was Justice Scalia’s bête noire. As I noted in Unraveled:

Scalia and Garner strongly criticized the follow-up edition, Webster’s Third, because of “its frequent inclusion of doubtful, slip-shod meanings without adequate usage notes.” Antonin Scalia and Bryan A. Garner, A Note on the Use of Dictionaries, 16 Green Bag 2d 419 (2013). See also MCI Telecomms. Corp. v. AT& T Co., 512 U.S. 218, 228 n. 3 (1994) (per Scalia, J.) (noting that “[u] pon its long-awaited appearance in 1961, Webster’s Third was widely criticized for its portrayal of common error as proper usage,” and citing as an instance “its approval (without qualification) of the use of ‘infer’ to mean ‘imply’”). Merriam-Webster’s editor-in-chief Frederick C. Mish was not troubled. “I regret having to say that Judge Scalia is in error on this matter,” Mish said, “but at least he has the satisfaction of knowing that his error is not reversible by a higher court.” William Safire, On Language: Scalia v. Merriam-Webster, N.Y. Times (Nov. 20, 1994),

Blackman, Josh. Unraveled: Obamacare, Religious Liberty, and Executive Power (p. 500). Cambridge University Press. Kindle Edition.

We should never forget that Justice Stevens concluded in Gonzales v. Raich that the cultivation of locally grown marijuana was an “economic activity” by citing Webster’s Third.

Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. “Economics” refers to “the production, distribution, and consumption of commodities.” Webster’s Third New International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.

In any event, relying on Webster’s Third, the GG majority finds that these dictionary definitions are not dispositive:

Although these definitions suggest that the word “sex” was understood at the time the regulation was adopted to connote male and female and that maleness and femaleness were determined primarily by reference to the factors the district court termed “biological sex,” namely reproductive organs, the definitions also suggest that a hard-and-fast binary division on the basis of reproductive organs—although useful in most cases—was not universally descriptive. The dictionaries, therefore, used qualifiers such as reference to the “sum of” various factors, “typical dichotomous occurrence,” and “typically manifested as maleness and femaleness.” Section 106.33 assumes a student population composed of individuals of what has traditionally been understood as the usual “dichotomous occurrence” of male and female where the various indicators of sex all point in the same direction. It sheds little light on how exactly to determine the “character of being either male or female” where those indicators diverge.

This analysis does not really work. There is no evidence that the use of “sum of,” and the word “typical,” were in any way directed at what we gender identity, or behavior aspects of “sex.” Indeed, these qualifying words referred specifically to physiological differences related to reproduction, not identification.  Even in 1972, society was aware of people who were not, from a  physiological, perspective, strictly male or female. This is what Webster’s Third was likely trying to capture, and is distinct from the notion of gender identity. The phrase “gender identity” appears nowhere in any of the contemporary dictionaries. To quote Justice Scalia from MCI v. AT&T, the Court will not accept a definition derived from “a single dictionary … which not only supplements the meaning contained in all other dictionaries, but contradicts one of the meanings contained in virtually all other dictionaries.”

In a footnote, Judge Floyd provides contemporary definitions, which (anachronistically) bolster its interpretation.

Modern definitions of “sex” also implicitly recognize the limitations of a nonmalleable, binary conception of sex. For example, Black’s Law Dictionary defines “sex” as “[t]he sum of the peculiarities of structure and function that distinguish a male from a female organism; gender.” Black’s Law Dictionary 1583 (10th ed.2014). The American Heritage Dictionary includes in the definition of “sex” “[o]ne’s identity as either female or male.” American Heritage Dictionary 1605 (5th ed.2011).

Such latter-day definitions are irrelevant for purposes of statutory originalism. In MCI v. AT&T, Justice Scalia further rejected reliance on a dictionary “not yet even contemplated” when the statute was drafted.

Judge Niemeyer’s dissent dismissed the majority’s efforts to disentangle the word “sex” from its traditional definition, involving physiological characteristics.

Any new definition of sex that excludes reference to physiological differences, as the majority now attempts to introduce, is simply an unsupported reach to rationalize a desired outcome.

In the end, however, the majority does not actually assert that the meaning of “sex” in 1972 included the notion of gender identity. Rather, under the uber-deferential Auer framework, Judge Floyd concludes that though the Department’s interpretation is not “intuitive,” it is “not plainly erroneous.”

We conclude that the Department’s interpretation of how § 106.33 and its underlying assumptions should apply to transgender individuals is not plainly erroneous or inconsistent with the text of the regulation. The regulation is silent as to which restroom transgender individuals are to use when a school elects to provide sex-segregated restrooms, and the Department’s interpretation, although perhaps not the intuitive one, is permitted by the varying physical, psychological, and social aspects—or, in the words of an older dictionary, “the morphological, physiological, and behavioral peculiarities”—included in the term “sex.”

On appeal to the Supreme Court, however, this argument will no longer cut it. Even accepting the definition from Webster’s Third (the late Justice is indeed rolling around in his grave), GG’s construction of the word “sex” to include gender identity is not consistent with how the phrase was originally understood. Judge Floyd’s opinion is not the best interpretation, nor is it even a good interpretation of Title IX. It only works, as the 4th Circuit explained, in the Auer context, where–so long as it is not inconsistent with the statute–it will be upheld. That argument no longer controls.

There is indeed a certain appeal to this mode of statutory originalism. During his February 23 press conference, White House press secretary Sean Spicer employed a statutory originalist mode of thinking, asking how members of Congress would have understood the provision in 1972. Here are a few excerpts:

“I mean, if you look at this, the law that was passed in 1972 did not contemplate or consider this issue.”

“The reality is, is that when you look at Title IX, it was enacted in 1972.  The idea that this was even contemplated at that is preposterous on its face.”

“There’s no way that you can read Title IX from 1972 — anybody — and say that that was even contemplated back then.  It just — there’s nobody that is possibly suggesting that the law that was passed in 1972 did that.”

Spicer, not a lawyer, was probably repeating what the Attorney General told him. But it works in very simple sound bites that people can understand. This is likely a preview of what the Justice Department’s position in this case will look like.

Mike Dorf argues to the contrary, citing Justice Scalia.

The district might argue that the Congress that enacted Title IX did not have trans cases in mind, but so what? As Justice Scalia wrote for the unanimous Court in the 1998 Oncale case, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

Dorf’s argument conflates original intent with original public meaning. (Seeking the framer’s intent has long ago been abandoned by originalists of all stripes). Likewise, the GG Brief in Opposition states “When the regulation was drafted, few would have conceived that students like G. would have been assigned a female sex at birth and yet, as a result of hormone therapy, have facial hair and other male secondary sex characteristics, have a male designation on his government ID card, and live all aspects of life in accordance with his male gender identity.” (p. 31). All this may be true, but is irrelevant to understanding original meaning.

Title VII prohibits “discriminat[ion] . . . because of . . . sex.” Oncale presented the question whether Title VII is violated “when the harasser and the harassed employee are of the same sex.” That is, would male-on-male sexual harassment run afoul of Title VII? Justice Scalia’s analysis disregards what the drafters intended, instead focusing on what the provisions they enacted mean (or really meant, though he presumes the meaning of “sex” was unchanged in the three decades from the enactment of Title VII and Oncale, which he was almost certainly right about):

We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.

“The provisions of the law,” that is how statute is understood, trumps the drafter’s “principal concerns.”

To bring this back to GG, it is most certainly the case that the drafters of Title IX in 1972 were not concerned with how transgender students access bathrooms. (To the contrary, there is evidence in the legislative record of a concern that schools would not be able to separate male and female intimate facilities). However, the “provisions of the law” in Title IX cannot be interpreted as was the provision in Title VII. The word “sex” in Title VII had an ascertained meaning in 1968 and 1998, based on physiological characteristics.

There was no jurisprudential principle that would prevent Justice Scalia from applying Title VII to circumstances not envisioned by its drafters (male-on-male harassment) because the language they chose was susceptible to different conditions. The same cannot be said for Title IX, in which the language was not susceptible to sex-discrimination-based-on-identity. To make this originalist case, GG will have to provide contemporary evidence that in 1972, the word “sex” embraced not only physiological differences, but also–in the words of Respondent (p. 30)–“behavioral aspects of sex.” Citing later precedents about sex stereotypes may provide a rule of decision, but does not get you to original meaning. The merits brief has not yet been filed–I will report back once it is posted.

In closing, I’ll note that I predicted–even before the election–that the Chief Justice would rule for the government, by narrowing Auer deference, but ruling that the word “sex” is best understood to embrace gender identity. This would be King v. Burwell redux–strangling administrative deference, without issuing a controversial 5-4 decision on a weighty social issue. But who knows. My predictions are always wrong.