Bryan Garner Argues his Linguistic Case at the U.S. Supreme Court

Bryan Garner, renowned for his many books on legal writing, argued his first case at the United States Supreme Court. Here's an excerpt from the article: "Supreme Court Justices Appeared Dazzled by Legal Celebrity at Oral Arguments in Robocall Case Against Facebook":

In his authoritative baritone, which came through even in telephonic oral arguments, Garner walked the justices through his arguments on what statutory wording really meant and how it should be applied to Facebook’s wrongdoing. As Garner nimbly led the justices through a discussion of adverbial modifiers, “viperine” interpretation of statutes, and conjunctive versus disjunctive distinctions, the justices appeared content to assume the position as students in Garner’s classroom.

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British High Court Rules in Favor of Keira Bell: Restricts Use of Puberty Blockers and Cross-Sex Hormones

I applaud this recent decision by the British High Court, reported by The Guardian:

Children under the age of 16 considering gender reassignment are unlikely to be mature enough to give informed consent to be prescribed puberty-blocking drugs, the high court has ruled.

Even in cases involving teenagers under 18 doctors may need to consult the courts for authorisation for medical intervention, three senior judges have ruled in an action brought against the Tavistock and Portman NHS trust, which runs the UK’s main gender identity development service for children.

An NHS spokesperson welcomed the “clarity” the decision had brought, adding: “The Tavistock have immediately suspended new referrals for puberty blockers and cross-sex hormones for the under 16s, which in future will only be permitted where a court specifically authorises it. Dr Hilary Cass is conducting a wider review on the future of gender identity services.”

Now it's time to stop this mass child abuse on this side of the pond too, given that most girls move from "puberty blockers" to taking 10 to 40 times the natural female amount of testosterone, usually leading to infertility. How did it get to the point where the once-vocal anti-clitoridectomy crowd got so quiet when something comparable comes to our own communities? 12, 13, 14 and 15 year old girls have been allowed to make permanent "decisions" of this sort, without the need for any official medical diagnosis of gender dysphoria.

Instead of getting real diagnoses, they are cheer-led into drugs, hormones and surgery through social media, peer pressure and even Planned Parenthood (which supplies testosterone to many of these girls. All of this under the guise of "civil rights." The "decisions" of these girls to use "puberty blockers" are being made without the benefit of long-term studies as to dangers, physical and psychological. It's about time we got real adults into this conversation. There is a LOT of buyer's remorse out there, but it's being suppressed by left-leaning news media (you can find hundreds of cases on Reddit/detransition), It makes me wonder when the lawsuits will start flying over here. [More . . . ]

Continue ReadingBritish High Court Rules in Favor of Keira Bell: Restricts Use of Puberty Blockers and Cross-Sex Hormones

John McWorter Draws a Line in the Sand When Ibram X. Kendi Publicly Labels his Ideas “Racist.”

One of the things I find most disturbing about "anti-racists" is their demand that you must either agree to everything they say or else you are a "racist." Popular authors Ibram X. Kendi and Robin DiAngelo claim that if you are not an "anti-racist" you are a racist. There are only two options. Thus speak the anti-racists.  This false dilemma, this unjustified dichotomy, is just "because."

"Anti-racism" is not the opposite of racism, despite the misleading nomenclature. It is virulent new form of racism. To pull off this minor miracle of creativity, the "anti-racists" have invoked a new expansive definition of "racism" that has nothing to do with specific unfair attitudes or behavior of specific people. The "anti-racists" invoke a Manichean claim that it is OK to judge people as good and bad (respectively Blacks and whites) based on immutable physical appearance, just because. In doing this, they are dusting off that old disreputable idea that melanin should serve as a guilt barometer. This is something they have in common with racists of the Civil War and Jim Crow eras, although the new barometer is upside-down.

This "anti-racist" formula has worked all too well for the past several years. Well-meaning people who fervently disagree with this "anti-racist" claim, however, including the specific claim that "all white people are racist," are being held emotional hostage. They are afraid to speak up, to disagree in public places. It is truly bizarre to see so many people who disagree with these "anti-racist" claims who are afraid to speak up. I know this from numerous private conversations. It's starting to look like many religions, where the preachers preach at the flock and members of the flock merely nod their heads, even thought they know in every bone of their bodies that the Earth is not 6,000 years old, that virgins don't have babies and that (an example from my Catholic upbringing) eating the host is not literally eating bloody muscles and capillaries. Members of the flock sat in total silence when the NYT promoted claims that the American Revolution was primarily for the purpose of promoting slavery, a central claim of "The 1619 Project."

So this is where we are: the preachers are preaching and members of the flock keep sitting silently because they are afraid of going to "anti-racist" hell. For them, hell is what would happen is they were publicly called "racist."  Thus, members of the flock will sit in paralyzed silence, even when the anti-racists call all "white" people and their Black intellectual allies "racist" no matter how exemplary their lives have been. Isn't that weird? "White" people are already being called racists as a group merely by their skin color, yet they fear being called "racist" as individuals. And what drives this fear is, ironically, that they hate racism. This is stranger than any fiction any creative writer could concoct. These "anti-racist" threats of name-calling are successfully turning many people into Zombies (this reminds me of how many types of wasps sting and zombify other bugs to use as hatcheries). After getting stung by the threat of being called "racists," the fearful zombified flock is willing to sit in silence even when the "anti-racists" make patently false claims that no racial progress has occurred since 1619, since the Civil War or since the Civil Rights era.  They sit in silence while the "anti-racists" ridicule Martin Luther King's idea that we should not be judged by the color of our skin, but only by the content of character.

Once this creepy dynamic settled into place, anti-racists, such as Ibram X. Kendi and Robin DiAngelo, began getting free rides from individuals who knew better but who were afraid to speak out. More troublesome, the anti-racists' fact-free and oftentimes false diatribes also began getting luxury free rides from corporate HR departments, government agencies (and here) and many members of our sense-making institutions, including left-leaning legacy media. In addition to securing the silence of people who disagree under threat of being called names, the "anti-racists" employ another big weapon: the rage of Woke mobs who are willing to destroy the careers of anyone who dares to dissent (recent example).

Linguist John McWhorter has not been afraid to call out the anti-racists.  He has done this in many places, including his article in The Atlantic,  "The Dehumanizing Condescension of White Fragility: The popular book aims to combat racism but talks down to Black people." McWorther, a professor of linguistics, has taken a lot of flack from the far left for repeatedly calling out that the Emperor Has No Clothes.

McWhorter had more than his fill, however, when Ibram X. Kendi recently and publicly called McWhorter's ideas "racist."  Kendi has made dozens of claims that should be vigorously scrutinized by academics, book reviewers and the general public, but he has been surfing on the waves of fearful silence. That silence meant that the normally unflappable McWhorter had to fend for himself.  He decided it was time to push back dramatically, in a public way. Hence these excerpts from the November 23, 2020 episode of The Glenn Show with Glenn Loury:

Continue ReadingJohn McWorter Draws a Line in the Sand When Ibram X. Kendi Publicly Labels his Ideas “Racist.”

Would you Invite a Poisonous Snake to Run Loose at Thanksgiving Gathering?

I will not be attending any indoor holiday gatherings this year. I'll refrain for the same reason that I don't bring poisonous snakes to family gatherings. Imagine that it's one year ago, before COVID was a thing. Assume that your extended family invited you to a big holiday celebration. You mention to your family that you will be bringing your pet poisonous snake and letting it run loose in the house during the celebration. Your family is aghast. You reassure them: My snake is shy. It will probably slither under a couch and stay there the entire time. In fact, there is only a 1% chance that the snake would bite one or more people. There's only a 1% chance that people bitten by the snake would die and only another 5% of people who are bitten would have long-lasting residual physical complications.

What would your family say? How is this risk any different than the risk of COVID other than the dangerous being visible rather than invisible?

I've seen the stats. 38% of Americans plan to attend Thanksgiving gatherings with 10 or more people. I understand that we are intensely social animals and that the social isolation triggering depression and probably killing people. I know that there are still some lingering questions about exactly how contagious and how dangerous COVID is in various environments. That said, I won't be attending any indoor gatherings this holiday season. Instead, I'll be attending two short scaled-down family outdoor gatherings at a distance (it's supposed to be about 50 degrees where I live). I'm not willing to send anyone I love to the hospital in order to eat turkey in a warm room. Not when there are alternatives to visiting indoors, including Zoom. Not when the hospitals are almost filled and health care workers are stretched hard to handle this onslaught.

Have a safe holiday season!

Continue ReadingWould you Invite a Poisonous Snake to Run Loose at Thanksgiving Gathering?

Originalism, Redux: Amy Coney Barrett Trots Out a Mildewed Theory as Her Guiding Light

Here we go again. Amy Coney Barrett is proclaiming her belief in "Originalism." In a NYT article titled "The Philosophy That Makes Amy Coney Barrett So Dangerous: Do we really want our rights to be determined by the understandings of centuries ago?," highly-respected Law Professor Erwin Chemerinsky is not buying what newly appointed Justice Coney Barrett is selling about originalism:

Originalists believe that the meaning of a constitutional provision is fixed when it was adopted and that it can change only by constitutional amendment. Under this view, the First Amendment means the same thing as when it was adopted in 1791 and the 14th Amendment means the same thing as when it was ratified in 1868.

But rights in the 21st century should not be determined by the understandings and views of centuries ago. This would lead to terrible results. The same Congress that voted to ratify the 14th Amendment, which assures equal protection of the laws, also voted to segregate the District of Columbia public schools. Following originalism would mean that Brown v. Board of Education was wrongly decided in declaring laws requiring segregation of schools unconstitutional.

In fact, under the original public meaning of the Constitution, it would be unconstitutional to elect a woman as president or vice president until the Constitution is amended. Article II refers to them with the pronoun “he,” and there is no doubt that original understanding was that only men could hold these offices.

Throughout American history, the Supreme Court has rejected originalism and protected countless rights that cannot possibly be justified under that theory. For example, the court has interpreted the word “liberty” in the Constitution to protect the right to marry, to procreate, to custody of one’s children, to keep the family together, to control the upbringing of one’s children, to purchase and use contraceptives, to obtain an abortion, to engage in private adult consensual same-sex sexual activity, and to refuse medical treatment.

Chemerinsky notes that the rejection of originalism "is not new."  Indeed, it has repeated and deservedly come under withering attack. One needs only cruise at 1,000 feet to see that certain justices have selectively pulled out their "originalism" gambit only on certain cases, not others, revealing it to be an opportunistic excuse, not a respectable judicial philosophy.

For more on what should have been the last gasps of "originalism," see my previous article, "Judge Richard Posner skewers Justice Antonin Scalia’s so-called originalism."  If one is going to dismember a Justice of the United States Supreme Court in an article titled, "The Incoherence of Antonin Scalia," one better have the goods. My article celebrated Judge Posner's 2012 take-down of originalism, which was, indeed, swift and surgical. Posner's exceedingly clever approach was to actually read the cases on which Justice Scalia relied for his ballyhooing of originalism in his own book (co-authored with Bryan Garner): Reading Law: The Interpretation of Legal Texts.

Posner's take-no-prisoners detailed article exposes many deep flaws of originalism along with the suspect motives of those who bandy it about in their selective efforts to turn back some clocks but not others. Posner's article was so incredibly effective that I think of it as a remake of "The emperor has no clothes."  Here is an excerpt from Judge Posner's annihilation of originalism:

THERE IS A COMMON THREAD to the cases that Scalia and Garner discuss. Judges discuss the meanings of words and sometimes look for those meanings in dictionaries. But judges who consult dictionaries also consider the range of commonsensical but non-textual clues to meaning that come naturally to readers trying to solve an interpretive puzzle. How many readers of Scalia and Garner’s massive tome will do what I have done—read the opinions cited in their footnotes and discover that in discussing the opinions they give distorted impressions of how judges actually interpret legal texts?

Another problem with their defense of textual originalism is their disingenuous characterization of other interpretive theories, typified by their statement that textual originalism is the only “objective standard of interpretation even competing for acceptance. Nonoriginalism is not an interpretive theory—it is nothing more than a repudiation of originalism, leaving open the question: How does a judge determine when and how the meaning of a text has changed? To this question the nonoriginalists have no answer—or rather no answer that comes even close to being an objective test.” But “non-originalism” is not the name of an alternative method of interpretation. It is just a bogeyman, like what they call “so-called consequentialism”—“is this decision good for the little guy?”

A problem that undermines their entire approach is the authors’ lack of a consistent commitment to textual originalism. They endorse fifty-seven “canons of construction,” or interpretive principles, and in their variety and frequent ambiguity these “canons” provide them with all the room needed to generate the outcome that favors Justice Scalia’s strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, the death penalty, and guns.

Thus they declare that “a fair system of laws requires precision in the definition of offenses and punishments,” implying that judges are entitled to use a concept of “fairness” to interpret statutes creating offenses and punishments. How is that to be squared with textual originalism? They say that “textualism, in its purest form, begins and ends with what the text says and fairly implies” (emphasis added), but evidently Scalia and Garner are not committed to its “purest form,” for they say that “determining what is reasonably implied [by the words of a statute] takes some judgment” (emphasis in original). They endorse the “rule of lenity”—the interpretive principle that ambiguity in criminal statutes should be resolved in favor of the criminal defendant—without showing how it can be consistent with textual originalism.

They assert that what they call “fair reading” requires “an ability to comprehend the purpose of the text, which is a vital part of its context,” and though they add that “the purpose is to be gathered only from the text itself, consistently with the other aspects of its context,” they also say that “a sign at the entrance to a butcher shop reading ‘No dogs or other animals’ does not mean that only canines, or only four-legged animals, or only domestic animals are excluded.” That is certainly right, but it is not right by virtue of anything textual. It is right by virtue of the principle that meaning includes what “would come into the reasonable person’s mind,” or what we know an author has “in mind” in writing something. On such grounds (which surprisingly the authors embrace as well) a sign that says “No dogs, cats, and other animals allowed” must be read to include totally unrelated animals (contrary to the principle of eiusdem generis—the “canon,” which they also approve, that a last general term in a series is assumed to be of the same type as the earlier, specific terms) because “no one would think that only domestic pets were excluded, and that farm animals or wild animals were welcome.” Right again! But right because textualism is wrong. Similarly, although a human being is an animal, a sign forbidding animals in a restaurant should not be interpreted to ban humans from the restaurant. It is the purpose of the sign, not anything in the sign, that tells you what meaning to attach to the word “animals” among its possible meanings.

I would invite anyone interest in this topic of "originalism" to read Richare Posner's entire article. It is a classic and it should have been the last word on a topic. It's too bad that we will probably need discuss it for many years forward.

Continue ReadingOriginalism, Redux: Amy Coney Barrett Trots Out a Mildewed Theory as Her Guiding Light