5 ms·

>Originalists/textualists just think the words on the page are the words on the page. That is incorrect. >No, it's logic that mandates you interpret the meani

>Originalists/textualists just think the words on the page are the words on the page. That is incorrect. >No, it's logic that mandates you interpret the meaning of the words on the page by what they would've meant to those who wrote the words. Only if you think the original meaning is what governs today. Obviously many others do not, hence the mix of people you see on the Supreme Court today. Arguing that there is one and only one correct way (because "logic dictates" or whatever else) is an ideological argument on theories of constitutional interpretation. It's an ongoing and lively debate if you're into constitutional law.

dragonwriter 10y ago
> Obviously many others do not, hence the mix of people you see on the Supreme Court today. Even the ones that aren't "originalists" (textualists aside) tend to view that the original meaning governs, they just tend to believe that the original meaning itself of many important provisions incorporated sensitivity to changing external context than the people that label themselves "originalists" do.
rayiner 10y ago
> Only if you think the original meaning is what governs today. That's a circular argument: "The meaning of the words to the people who wrote the words doesn't matter because we don't think the original meaning is what governs today." > Obviously many others do not, hence the mix of people you see on the Supreme Court today. I think that's actually a bit of a strawman of the "living Constitution" position. If I write a letter that is read 100 years from now, it would be absurd to say that what my words "mean" should be interpreted in any way other than how I would have understood them. Clearly, very smart people would not subscribe to a patently absurd idea like that. Instead, I think they subscribe to the idea that the meaning of the words on the page isn't the be-all end-all. That the framers intended the independent judiciary to exercise discretion within the general bounds of the Constitutional text. Which was the point of my original post upthread: it's not really unclear what the text "means"--we just disagree about what to do with that information.
- SmellTheGlove 10y ago
  >That's a circular argument: "The meaning of the words to the people who wrote the words doesn't matter because we don't think the original meaning is what governs today." That's not circular. That's pretty much exactly what you do when you take a balancing approach to conflicting interests. Some part of the original meaning is often tossed out. It happens a lot in Speech cases, and (in my opinion) is happening more frequently with 4th Amendment cases. >I think that's actually a bit of a strawman of the "living Constitution" position. Maybe. >Clearly, very smart people would not subscribe to a patently absurd idea like that. It doesn't matter what we think very smart people would or wouldn't do. The constitution means what the Supreme Court says it means, and the justices themselves are free to interpret however they wish. The current bench contains a variety of approaches, some fairly divergent from originalism, which it sounds like you prefer. At this point you're probably a little bit surprised to learn that I do ascribe to originalism as my preferred approach to constitutional law. I can appreciate the other approaches, but there's the slippery slope of making the constitution fit whatever it is that we're trying to accomplish today, and at that point we might as well be like the British again and have no written constitution. Constitutional positions aside, though, I'm not a huge fan of capital punishment, whether or not the 8th amendment permits it (it does).

dragonwriter 10y ago

> Obviously many others do not, hence the mix of people you see on the Supreme Court today. Even the ones that aren't "originalists" (textualists aside) tend to view that the original meaning governs, they just tend to believe that the original meaning itself of many important provisions incorporated sensitivity to changing external context than the people that label themselves "originalists" do.

rayiner 10y ago

> Only if you think the original meaning is what governs today. That's a circular argument: "The meaning of the words to the people who wrote the words doesn't matter because we don't think the original meaning is what governs today." > Obviously many others do not, hence the mix of people you see on the Supreme Court today. I think that's actually a bit of a strawman of the "living Constitution" position. If I write a letter that is read 100 years from now, it would be absurd to say that what my words "mean" should be interpreted in any way other than how I would have understood them. Clearly, very smart people would not subscribe to a patently absurd idea like that. Instead, I think they subscribe to the idea that the meaning of the words on the page isn't the be-all end-all. That the framers intended the independent judiciary to exercise discretion within the general bounds of the Constitutional text. Which was the point of my original post upthread: it's not really unclear what the text "means"--we just disagree about what to do with that information.

SmellTheGlove 10y ago
>That's a circular argument: "The meaning of the words to the people who wrote the words doesn't matter because we don't think the original meaning is what governs today." That's not circular. That's pretty much exactly what you do when you take a balancing approach to conflicting interests. Some part of the original meaning is often tossed out. It happens a lot in Speech cases, and (in my opinion) is happening more frequently with 4th Amendment cases. >I think that's actually a bit of a strawman of the "living Constitution" position. Maybe. >Clearly, very smart people would not subscribe to a patently absurd idea like that. It doesn't matter what we think very smart people would or wouldn't do. The constitution means what the Supreme Court says it means, and the justices themselves are free to interpret however they wish. The current bench contains a variety of approaches, some fairly divergent from originalism, which it sounds like you prefer. At this point you're probably a little bit surprised to learn that I do ascribe to originalism as my preferred approach to constitutional law. I can appreciate the other approaches, but there's the slippery slope of making the constitution fit whatever it is that we're trying to accomplish today, and at that point we might as well be like the British again and have no written constitution. Constitutional positions aside, though, I'm not a huge fan of capital punishment, whether or not the 8th amendment permits it (it does).