What do words mean?
Article II, Section 1 of the U.S. Constitution states that “Before he enter on the Execution of his Office, he shall take the following Oath...” Here, and in more than a dozen other places in Article II, the Constitution states that the president shall be male, and in so doing creates a serious problem for two law professors: James Heilpern at Brigham Young University, and Amy Coney Barrett, nominated to a be an associate justice of the Supreme Court.
Heilpern calls himself a “textualist,” and in a commentary published in The Salt Lake Tribune on Oct. 15, he tells us what textualists are and what they do: “Textualists set aside their own political, moral or religious beliefs in favor of the actual words on the page,” he writes. Heilpern sees Barrett as a compadre: “We need textualists like Barrett on the Supreme Court.”
Barrett seems to prefer being known as an “originalist.” “I interpret the Constitution as a law,” she recently testified. “That I interpret its text as text. And I understand it to have the meaning it had at the time people ratified it. So that meaning doesn’t change over time, and it is not up to me to update or infuse my own policy views into it.”
Here then, in a nutshell is their argument: The Constitution is the law; its words mean the same as they did in 1787; these meanings never change; and to make sense of them, we must set aside our political, moral and religious beliefs.
And here, once again, is one of their problems. Article II says the president — and vice president — shall be male: “He shall hold his Office during the term of four Years.” If they follow their beliefs as originalists and textualists and take these words literally, then it would be unconstitutional for either the president or the vice present to be a woman.
In her statement, Barrett makes two additional mistakes: First, the text of the Constitution has the same meaning today as it had when it was ratified; and, second, this meaning doesn’t change over time.
Her first claim can be quickly addressed: There is no meaning in a text. Words are nothing more than black marks on paper (or electronic impulses on computer screens). Meanings are in people, not in words. Words have meaning because, contrary to what Barrett asserts, people infuse meanings into words. Two examples in the form of questions: Where is the meaning of the word “abortion?” And what does “justice” mean?
As for the second, that the meanings inherent in words never change, efforts to read Chaucer or Shakespeare will quickly make clear that the meanings of the words they used to write their plays and poems have undergone dramatic changes. The words are the same now as then, yet without the guidance of scholars, we can’t make sense of many of them.
Heilpern makes a more egregious mistake. “Textualists set aside their own political, moral or religious beliefs,” he writes, “in favor of the actual words on the page.”
Some beliefs — superficial or peripheral ones — may be “set aside” and even ignored, but political, moral or religious beliefs that are important to us are central to our sense of self — our personal identity — and can never be set aside. They are what we stand for and, in a real sense, who we are.
We perceive and understand the world through the lenses of our political, moral and religious beliefs, and we depend upon them to help us make important decisions. It is with them and through them that we “live, move, and have our being.” Attempting to set them aside in order to examine a text is as futile as choosing to become invisible. The next time Heilpern “sets aside” his political, moral and religious beliefs in order to examine a text, I would like to sit in and see how he does it.
Amy Coney Barrett is a middle-class, white, American, Catholic, highly educated, lawyer, woman, mother, wife and law professor. James Heilpren is a middle-class, white, male, lawyer, Latter-day Saint, law professor. It is from these many identities that they, like all of us, create the meanings of the texts they read.
In summary, there is no meaning in words apart from those who read them. Meanings are in people, who then assign them to words. These personal meanings of things, acquired through years of experience and education, make us the individuals that we are. These differences can create problems for us, but they more than compensate for these problems by making our lives richer and much more interesting.
Joseph Bentley
Joseph C. Bentley, Ph.D., is an emeritus professor of management and organizational behavior at the University of Utah. His website is www.tamingwickedproblems.com. His book, “Exploring Wicked Problems,” written with Michael Toth Ph.D., was published in April of this year.