Justice Gorsuch and the Anarchy of Judicial Textualism

Philip Pilkington re-examines the philosophical errors which lead to civilizational suicide.

It is not often commented, but judicial textualism bears many of the same hallmarks as philosophical postmodernism. When this is properly appreciated, many of the results of textualist legal reasoning can be better understood. Textualism is founded in much the same principles as postmodernism. Understood in this way, textualism operates as a sort of system of gears allowing postmodern culture to infiltrate the legal apparatus. Since postmodernism’s aim is ultimately to undermine the legal apparatus, textualism thus becomes an instrument of subversion.

These questions have been brought into much sharper focus with the recent ruling in Bostock vs Clayton County where the Supreme Court expanded the protections offered in the Civil Rights Act of 1964 to include not just discrimination based on race, color, religion, sex or national origin, but also ‘gender identity’ and ‘sexual orientation’.

Those criticizing the ruling have tended to fall into two camps. In the first camp are those that argue that the Bostock ruling was a perversion of textualism. This position is untenable. Textualism claims to be a positive, not a normative theory. If there is no agreement on core issues within the textualist canon then the theory is manifestly a vehicle for something else. In the second camp are those that point out that textualism is an empty formalism and that this leads to a lack of resistance against nihilistic liberal political culture. Recently this second position has been expanded by Adrian Vermeule who posits that the key driver of controversial court decisions is what he calls the “hidden constitution”. This is a set of liberal presuppositions about culture that exert what he calls a sort of “gravitational force” on court decision-making (Vermeule 2020).

In this essay, I want to expand on this second view and, in a sense, radicalize it. I want to make the case that the “hidden constitution” is, in fact, an anti-constitution; something resembling a legal computer virus that is geared toward undermining the legal apparatus itself by exploding the implicit hierarchy on which it rests. Textualist theory is where the rubber meets the road. Like utilitarianism in ethics, textualism is an instrumentalist theory that allows corrosive, nihilistic and anarchistic theories to gradually undermine the legal apparatus from within. Lacking a positive telos of its own, textualism automatically adopts the anti-telos that has been embedded in our culture by the postmodernists.