James C. Phillips, a scholar at Stanford law school’s Constitutional Law Center (and author of several National Review essays), has kindly forwarded to me an interesting new paper of his, “The Overlooked Textual Evidence in the Title VII Cases: The Linguistic (and Therefore Textualist) Principle of Compositionality.” As he explains, the principle of compositionality “is, simply put, the notion that a phrase is often more (or less) than the sum of its parts.”
From his abstract:
This short essay focuses on a linguistic (and therefore textualist) principle overlooked in the trio of Title VII cases currently before the U.S. Supreme Court: compositionality. By taking that principle seriously–a principle the Supreme Court has recognized in some form for a century–the essay uncovers corpus linguistic and dictionary evidence contemporaneous to the enactment of Title VII that sheds light on the relevant statutory language. That light provides an answer to the interpretive question the Court is facing.
Title VII makes it unlawful “to discriminate against any individual . . . because of such individual’s . . . sex.” Many observers seem to drop the word “against” and focus just on “discriminate.” Or if they do take “against” into account, they nonetheless fail to read the whole operative statutory phrase—including “discriminate,” “against,” and the relevant trait (in this case, sex)—as an indivisible whole. The argument for the plaintiffs, in particular, would require us to give “discriminate” and “against” the meaning each of them would have if it existed apart from the rest of the phrase. This “dissection” approach is most obvious in the most precise and careful formulations of the plaintiffs’ central textualist argument, as this Essay will show.
But that approach, as I will also show, violates the linguistic principle of compositionality. So it produces a demonstrably inferior reading of the text on purely linguistic grounds, prior to any appeal to subjective intent, purpose, policy concerns, or other modes of legal argument.
That is because, as it turns out, the phrase “discriminate against . . . because of [some trait]” was a linguistic unit (a composite) by the time of Title VII’s enactment, which makes the principle of compositionality relevant. And read as a composite, the phrase had more semantic content than one could glean from separately analyzing and then amalgamating its three parts (“discriminate,” “against,” and “sex”). While a “dissection” reading might suggest that Title VII covers any adverse treatment that even adverts to sex, as plaintiffs suppose, a linguistically superior reading (taking compositionality into account) proves that the operative text refers only to adverse treatment that rests on prejudice—i.e., unfair beliefs or attitudes—directed at some or all men, or at some or all women. And this defeats the plaintiffs’ textualist argument. Whatever the legal merits of their case overall, their textualist case fails because it violates a basic linguistic principle as applied to linguistic data from the era. But as it happens, the prejudice-based conception of discrimination that is required by the text properly read also fits well with all the Court’s precedents on sex discrimination.
By contrast, plaintiffs’ reading of Title VII’s text is irreconcilable with employers’ long-accepted practices of sex-specific dress codes, restrooms, and locker rooms and showers (e.g., in company gyms). Because that misreading would also apply to colleges and schools receiving federal funds under Title IX, it would also bar those institutions from continuing their long-accepted practices of sex-specific restrooms, showers, dormitories, and sports teams.