At issue in Chisholm was whether the state of Georgia could be sued by the executor of an estate who was seeking to recover money owed him by the dead man. The Supreme Court read what was then the brand new Constitution as saying that the states could be sued by private citizens. But that’s not what the framers and ratifiers of the Constitution intended, and the states and their representatives knew it.
They rebelled against the Supreme Court’s ruling. What would become the 11th Amendment was drafted, passed Congress in March 1794 and was ratified by the states in February 1795, a record time. The original intent of the Constitution was restored. A useful principle was established for all future justices considering future cases: Don’t mistake literalism for judging.
A common mistake that critics of the approaches known as “originalism” and “textualism” make is that they think one or the other or both are the same as “literalism.” Not so. The Supreme Court in 1793 went literal as opposed to “originalist,” and triggered a rebuke that echoes down the centuries. Let’s hope the court avoids the same mistake now. “Originalism” and “textualism” aim to interpret laws as they were understood by the public when they were passed, not elevating secret deals or “legislative intent” as tools of interpretation, but relying on the common, public understanding of the words used in the era they were employed to draft the law.
At issue in the pending Supreme Court case of R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission is whether Title VII of the 1964 Civil Rights Act prohibits discrimination against transgender people. Lots of people believe that such discrimination should be illegal. They have urged Congress repeatedly in recent years to pass amendments to Title VII to legislate such a bar. Those efforts have not been successful.
So a different method is being employed. Proponents of legislating against discrimination of the LGBTQ community are asking the court to rewrite the 1964 law. It would require a Chisholm v. Georgia level of indifference to obvious meaning and history to rule that the framers of the 1964 law intended their use of the word “sex” to apply to “gender” as we understand it in 2019. It’s a laughable argument. To read Title VII as applying to discrimination against transgender people is to import into Article III of the Constitution a legislative power for the federal courts. That Congress did not legislate on the subject of transgender rights in 1964 (or since) does not bar expansive state laws or congressional amendments to that effect in the future.
But this absence of legislative action should not lead the court to grab power. Thus, when Justice Neil M. Gorsuch announced from the bench on October 8 that the case was “really close” and then added “Assume for the moment I’m with you on the textual evidence,” originalists and textualists across the country were stunned. What? Was he serious, or just bending over backward to try and understand a preposterous proposition? But Gorsuch couldn’t possibly side with those arguing that the 1964 use of the word “sex” had to be stretched to mean “transgender,” could he?
If Gorsuch so holds, it will be a catastrophic blow to the originalism and textualist movement, which is really, simply, a “rule of law” movement and a defense of “separation of powers,” a demand that Congress legislate, presidents execute, courts judge and that they stay out of each other’s business. In that division resides liberty’s defense. Empower the courts to legislate, or rewrite old legislation, and the mask is off. The people will know that the government rules them, not they the government.
Oral argument is an exercise, but decisions are not. A test is upon the court. Will it accept its collective limits? The common folk know what Title VII means and what it meant to prohibit. It’s not even a hard case, much less a close one. A Chief Justice John Marshall quote from a different case, Barron v. City of Baltimore, should appear in this decision: “The question thus presented is, we think, of great importance, but not of much difficulty."