One of the bees in my bonnet is Justice Gorsuch’s decision in 2020’s Bostock v. Clayton County. In that case, Gorsuch said that the word “sex” in the 1964 Civil Rights Act, which then meant only biological sex, must be understood in light of modern “transgender” activism to mean a person’s self-chosen sexual identity.

By holding as he did, Gorsuch effectively greenlighted several recent district court opinions, two of which halted President Trump’s efforts to remove from the military so-called transgender people (i.e., mentally ill people with life-long, extreme medical needs should they have “gender affirming” care), and the other blocking Trump’s order requiring passports to recognize people’s sexual reality, not their perverse fantasies.

Gorsuch’s approach is known as a “textualist” approach to interpreting statutes, and it’s become a very dangerous weapon. If the administration is to counter other judges, including Gorsuch himself, in the future, it’s necessary to understand a few rules of statutory construction, rules that apply to the Constitution, as well.

Image by Grok

The unspoken rule we’ve become accustomed to from the left is an “activist” or “living” approach. What this boils down to is that activist courts can interpret the Constitution and statutes to mean whatever they want in order to achieve a desired outcome. They can find emanations, penumbras, and whole romance novels in the Constitution if needed. These are not actual rules of statutory construction, of course. They are leftist politics wrapped in judges’ robes.

However, there are real rules of statutory construction, which go back centuries. Rule Number 1 is that, whenever possible, Courts should look to the plain meaning of the words as written:

[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.

Lynch v. Alworth-Stephens Co., 267 U.S. 364, 370 (1925) (internal quotation marks omitted).

However, what happens if the meaning really isn’t so plain? After all, you don’t need to contort yourself when a statute says, “Dog owners must clean up their dog’s fecal matter from all locations other than their own property.” But what about a poorly written statute that is inherently ambiguous? For example, a statute saying “Dog waste must be removed” doesn’t put the onus on anyone. Will an innocent property owner who finds a strange Great Dane’s gift on his lawn be criminally liable if he doesn’t remove it?

Well, there’s a rule for that, too: “Courts should construe laws in harmony with the legislative intent and seek to carry out legislative purpose.” Foster v. United States, 303 U.S. 118, 120 (1938). And to give meaning to that determination, it’s apparent that the statutory language must be understood to mean what it meant at the time the statute was passed or the constitutional provision ratified.

The best way to understand this is to look at the First Amendment, with its provisions about a free press, and the Second Amendment’s right to bear arms. Back in the 18th century, the “press” quite literally used presses to print words on paper. However, we understand that the Founders meant the free exchange of news and ideas, so we’re not hung up on the medium used. Likewise, contrary to some gun-grabbers, we (and the Supreme Court) understand that the Founders did not mean to limit Americans to guns that had to be reloaded between each shot (e.g., muskets).

A textualist like Gorsuch, however, will override the reverse situation. Thus, the Constitution has old-fashioned words that apply to overarching principles that are still relevant today. However, there are situations—as with the word “sex”—when the word is the same, but the meaning has changed. You cannot pretend that legislators in the past were thinking of the same overarching meaning ascribed to the word in modern times.

Concrete examples of this principle are useful. A “spinster” was originally an unmarried woman who spun thread, but the term eventually became a demeaning pejorative. “Nice” used to mean precise or subtle, and now it means merely pleasant.

Most significantly, the word “happiness” in the Declaration of Independence has nothing to do with following your bliss and feeling good about yourself and your sexual choices. Grok, when asked “What did the word ‘happiness’ mean 250 years ago in English-speaking countries?” reveals that it had a significantly more profound meaning in the political and ideological context, and even in the most common usage, it wasn’t talking about self-fulfillment, including the sexual kind:

250 years ago, around 1775, the word “happiness” in English-speaking countries carried a meaning that was broader and more nuanced than today’s common association with personal joy or contentment. Rooted in philosophical and cultural contexts of the Enlightenment, it often encompassed ideas of well-being, virtue, and living a good life in alignment with moral and societal ideals.

·       Philosophical Context: Influenced by thinkers like John Locke and Aristotle (via classical revival), happiness was tied to “eudaimonia” — a state of flourishing achieved through virtue, reason, and fulfilling one’s purpose. It was less about fleeting emotions and more about a sustained state of living well.

·       Moral and Social Dimension: Happiness was often linked to moral conduct and contributing to the common good. For example, in religious contexts, it could mean living in accordance with divine will, as seen in Puritan or Anglican teachings.

·       Political Usage: The term gained prominence in documents like the U.S. Declaration of Independence (1776), where “the pursuit of happiness” referred to the right to seek prosperity, self-governance, and personal fulfillment, often within a communal framework.

·       Everyday Usage: In common speech, “happiness” could still denote joy or satisfaction but was frequently tied to external conditions like health, family, and economic stability rather than purely internal feelings.

For example, Samuel Johnson’s Dictionary of the English Language (1755) defined happiness as “1. The state of being happy; felicity” and “2. Good fortune; good luck,” emphasizing both a state of well-being and favorable circumstances.

In summary, “happiness” 250 years ago was a richer concept, blending personal contentment with moral virtue, societal contribution, and favorable conditions, reflecting Enlightenment values and classical influences.

All of this sounds rather abstruse (and there’s a cool, 16th-century word), but it’s not. Given the pivotal issues going before the Supreme Court, the DOJ must ensure that the Court rigorously follows the rules of statutory interpretation. That’s because in a world in which values, words, and word definitions are changing at warp speed, keeping the Court honest may be the difference between keeping our liberty or falling victim to perpetual government servitude.

(Thanks to my friend Nodrog Snave for his help with this essay.)