What Happens When An Originalist, Textualist, And Evolutionist Walk Into A Courtroom

What Happens When An Originalist, Textualist, And Evolutionist Walk Into A Courtroom

During Neil Gorsuch’s confirmation hearings senators and commenters are batting around words like ‘textualist,’ ‘originalist,’ and ‘evolutionist.’ Here’s an illustration.

The Senate’s consideration of Supreme Court nominee Neil Gorsuch will involve passionate debate over academic theories of constitutional interpretation. Arcane terms normally confined to law school seminar rooms—“textualist,” “originalist,” “evolutionist”—will be batted around.

Most will find this lawyer-speak boring and baffling. A recent panel discussion in which constitutional scholars applied these theories to Dashiell Hammett’s classic crime story, “The Maltese Falcon,” however, might help decode the arcane jargon.

Moderator: In The Maltese Falcon, who killed Miles Archer?

Textualist: Brigid O’Shaughnessy killed Miles Archer. In Chapter 20 Sam Spade confronts O’Shaughnessy with facts and reasoning, exposing her guilt. Although she at first denies it, Spade’s relentless grilling eventually brings O’Shaughnessy not only to confess to the murder but to disclose a chilling detail she couldn’t have known if she hadn’t committed the crime. The text of the novel unambiguously answers the question, and that is the end of our inquiry.

Originalist: Brigid O’Shaughnessy killed Miles Archer. The text of the novel indeed seems conclusive, but if ambiguity could somehow be teased out of it the original understanding of the first cadre of readers, commentators, and imitators who “ratified” the story as not just the genesis of a sub-genre but an icon of the American literary canon would clinch the issue.

That understanding is clear. Readers and commentators have overwhelmingly understood “The Maltese Falcon” as, in George J. Thompson’s phrase, a “renunciation story” in the tradition of “Sir Gawain and the Green Knight.” Sam Spade gave up the love of a beautiful and desirable woman to adhere to a code of honor (e.g., “When someone kills a man’s partner, he’s supposed to do something about it.”).

“The Maltese Falcon” would be incoherent as a renunciation fable if O’Shaughnessy weren’t Archer’s murderer. If she hadn’t killed Archer, Spade’s code wouldn’t require him to give her up. Hence, the principle of original understanding convicts O’Shaughnessy of Archer’s murder.

Evolutionist: “The Maltese Falcon” isn’t just a bunch of words written by a white male almost 90 years ago. It is a living, breathing document, and our understanding of it must evolve to meet the changing needs and conditions of our times. A rigid, text-bound interpretation freezes into “The Maltese Falcon” sexist, patriarchal misogyny going back to the Book of Genesis.

Although women commit fewer than 15 percent of murders in the United States, they are identified as the murderer in almost 40 percent of the American whodunits published since 1928. The very term “femme fatale” illustrates the persistence of this pernicious stereotype. Pinning Miles Archer’s murder on Brigid O’Shaughnessy is a classic exercise of white male privilege.

Nor, without injustice, can the murder be attributed to characters who are marginalized victims of vicious homophobia, ableism, and prejudice against those outside the mainstream. Joel Cairo is openly gay. Wilmer Cook is secretly gay, forced by social prejudice into a tragic, exploitative relationship with the bisexual Casper Gutman, whose morbid obesity Spade brutally ridicules when he tells the police that they can’t miss him—“he must weigh 300 pounds.” Floyd Thursby, finally, is a victim of a misguided policy of mass incarceration, based on his participation in such minor offenses as robbing card games.

The only murder suspect who meets the needs and conditions of our times is the white, male, straight, cis-gender, physically able Sam Spade. Although a blinkered view of the text might find him asleep in bed when Archer was killed—

At this point several law clerks rushed into the room from the adjoining law library, closely followed by reams of parchment covered by elegant eighteenth-century handwriting. The parchment was metastasizing at a terrifying rate, filling hallways, rooms, and stairwells, and engulfing everyone in its path as the frantic law students screamed, “IT’S ALIVE! IT’S ALIVE!” Only the textualist and the originalist escaped.

Michael Bowen, a recently retired lawyer, graduated from Harvard Law School in 1976. He is the author of numerous published mysteries -- most recently "Damage Control," published by Poisoned Pen Press in 2016 -- and a political satire novel about the first woman to play major league baseball. He lives in Fox Point, Wisconsin, a suburb of Milwaukee, with his wife Sara.
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