[In]Securities Guest Blog: A Different Kind of Truth By Aegis Frumento Esq

October 23, 2020


A Different Kind of Truth

Notre Dame Law School advertises itself as the place to go to become "A Different Kind of Lawyer." In a 2006 commencement speech, then Associate Professor Amy Coney Barrett wondered what that meant, and ultimately concluded that "if you can keep in mind that your fundamental purpose in life is not to be a lawyer, but to know, love, and serve God, you truly will be a different kind of lawyer." 

After a dozen years in Catholic schools, I now belong to the most popular branch of Catholicism -- the lapsed. But I still recognize "to know, love and serve God" as what a Catholic high schooler would write to ace a religion exam, inarguably right since it's cribbed from the first paragraph of the Catechism. It is striking not for its dogmatism, but because it is so boringly pedestrian.

I start here because soon-to-be-Justice Barrett's common (and I don't mean that as a compliment) Catholicism rhymes, sort of, with her espoused legal textualism and originalism. Textualism is a way of reading statutes and the Constitution that looks only to the words on the page, and nothing else. Originalism goes one step further, and looks to the "original" meaning of those words when they were written and not their meaning today. All three privilege words over judgments, as if words were more important than the reality behind them. Sort of like saying "to know, love and serve God" without a clue what that means in the real world.

The Gospel of John starts, "In the beginning was the Word." Except that in the original Greek, the word for "word" -- "lexis" -- isn't there. What John really says is that in the beginning was the "logos." "Throughout most schools of Greek philosophy, this term was used to designate a rational, intelligent and thus vivifying principle of the universe." https://s3.amazonaws.com/snsocietymedia/wp-content/uploads/20170926172628/Logos-in-Greek-Culture.pdf
It might as easily be another way to say "God," but "In the beginning was God" doesn't say much. Logos connotes concepts and ideas, prior to and bigger than any "word" that tries to express them. The logos is always just beyond the reach of the lexis grasping for it.

But to equate "the Word" with "God" gives the word more weight than it deserves. That burden is what makes textualism and originalism creak. Textualists and originalists, like the late Justice Antonin Scalia, Barrett's mentor, argue that words must be primary because otherwise judges could read statutes and the Constitution as makes sense to them, thereby usurping the legislature's prerogative to make policy decisions. Absurd statutory or Constitutional results should be fixed by amendments, not by asking courts to "rewrite" them so they work better.

That's not a frivolous position, and all Supreme Court Justices are now textualists to a degree. Even the late RGB interpreted the Dodd-Frank whistleblower retaliation provisions as a textualist, leaving it up to Congress to fix the law if it wants to avoid results that some say don't make sense. See https://sterntannenbaum.com/wp-content/uploads/2018/10/SEC-Whistleblower-Retaliation-After-Digital-Realty-00070382xB16F4.pdf
Like everything in life, it's a matter of degree. It's when we become -- shall we say dogmatic? -- that trouble brews.

Socrates wrote nothing. He believed the only way to approach the logos was by dialogue, by talking things through. Something written acquires the aura of authority, and Socrates did not think that was a good thing. The mind gives authorities too much importance, and closes off avenues of thought in deference to them. As Zen master Shunryu Suzuki observed, "In the beginner's mind there are many possibilities, but in the expert's there are few."

Jesuit scholar Walter J. Ong knew this better than most. Ong studied how the 16th Century rise of what today we would call textbooks degraded education by diminishing the role of oral discourse. See Ramus, Method and the Decay of Dialogue (1958) and Orality and Literacy (1982). Ong's point was that over-reliance on dead words on a page was the start of a general dumbing down. Of course, education was made more efficient in the process, but something's always lost when something's gained.

In 1990, Ong wrote an essay on another misunderstood word -- "catholic." It is usually interpreted to mean "universal," but it doesn't. "Universalis contains a subtle note of negativity," Ong wrote. "Katholikos does not. It is more unequivocally positive. It means simply 'through-the whole' or 'throughout-the-whole.' " Drawing on one of Jesus's parables, Ong likened Catholicism to yeast, that interacts with all sorts of flour, to make many kinds of bread. "The church does not have from the start everything it will later become, any more than the yeast does . . . If, however, yeast nourishes itself on the dough in which it is placed, it does not do so in such a way as to spoil the dough. . . . It makes the dough more usable, more nourishing." https://www.bc.edu/content/dam/files/offices/mission/pdf1/cu13.pdf.

In much the same way, our own experiences necessarily nourish our understanding of the words we use. When I was a kid, a "telephone" was a heavy object wired into the wall, with a dial that you stuck your finger into and rotated. If you got the holes right you might end up talking to someone. My 10-year old self would never have included an iPhone within my original understanding of the word "telephone." Likewise, it's silly to pretend that Alexander Hamilton would have considered an AK-47 in the hands of a mad vigilante lexically equivalent to the bayoneted muskets of well-regulated militiamen. If that's what Judge Barrett means by originalism, the doctrine falls apart on many levels. Not the least of them, with respect to the Constitution at least, is that no one living today really knows what the Founders meant when they used their words, because none of us has any idea of the world they experienced. All we know are the meanings that our own experiences permit us to give their words.

But John Marshall did know. Marshall was a member of the Virginia House of Delegates and a leading Federalist when the Constitution was drafted. He led the ratification effort in Virginia. He later became our fourth and arguably most influential Chief Justice of the Supreme Court. This is how he thought the Constitution should be interpreted:  "We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." For an originalist view of constitutional interpretation -- from a genuine original at that -- look no further.

Ong's Catholicism too has endured for ages, because it adapted to and drew from the cultures it encountered. As he wrote about yeast, "It not only grows in what it feeds on, but it also improves what it feeds . . . The church transplanted from any given culture to a new culture can live in a way that fits that particular new culture without losing its own identity, just as in doing its work of leavening, yeast does not sacrifice its own identity but remains growing yeast." To be Catholic is to remain open to whatever comes of diverse dialogue and social interaction. It was in the spirit of Ong's Catholicism -- and even of Marshall's Constitution -- that Pope Francis famously said of a gay priest, "Who am I to judge?" -- and now comes to support same-sex civil unions. https://www.nytimes.com/2020/10/21/world/europe/pope-francis-same-sex-civil-unions.html.

Now the drama's done and Amy Coney Barrett will join the Supreme Court. She's the woman. But we really needn't worry about her being "too Catholic." If anything, she's not yet Catholic enough.


Aegis J. Frumento

380 Lexington Avenue
New York, NY 10168

Aegis Frumento co-heads the Financial Markets Practice of Stern Tannenbaum & Bell, New York City.  He represents persons and businesses in all aspects of commercial, corporate and securities matters and dispute resolution (including trials and arbitrations).  He has decades of experience representing SEC, CFTC and FINRA regulated firms and persons in regulatory enforcement investigations, hearings and lawsuits.  Drawing on his five years managing the Executive Financial Services Department of Morgan Stanley Smith Barney, Aegis has rare depth of experience in the securities and corporate governance laws affecting senior executives of public corporations.  When not litigating, Aegis enjoys working with new and existing broker-dealers, registered investment advisers, and private equity funds, covering all legal aspects from formation to capital raising. Those clients now include industry professionals looking to adapt blockchain technologies to finance and financial market enterprises, including the use of cryptosecurities to represent equity and debt interests. 

Aegis's long and distinguished career includes having been a Managing Director of Citigroup and Morgan Stanley, a partner and the head of the financial markets group of Duane Morris LLP, and the managing partner of Singer Frumento LLP.  He graduated from Harvard College in 1976 and New York University School of Law in 1979.  Aegis is a frequent author and speaker on securities law issues, and is often quoted in the media on current securities law developments.  He is the current Chairman of the New York City Bar Association's standing Committee on Professional Responsibility.

NOTE: The views expressed in this Guest Blog are those of the author and do not necessarily reflect those of BrokeAndBroker.com Blog.