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Originalism is degenerate legal philosophy. Textualism is all that is valid. We will look back at some of those ridiculous uncited rulings that speak about “how

Originalism is degenerate legal philosophy. Textualism is all that is valid. We will look back at some of those ridiculous uncited rulings that speak about “how the writers felt given the time” as foolishness.

socraticmethod 6y ago
Even textualism is an interpretive process by very human judges.
jeffdavis 6y ago
Which justices do you believe follows originalism, which follow textualism, and which follow neither?
rayiner 6y ago
History is relevant to both originalism and textualism in different ways. Originalists look to what the writers intended the words to mean. (This is how we interpret contracts in Anglo legal systems.) Textualists disregard what the writers intended, but do care about what the words meant at the time they were written. This often leads to the same result, but can sometimes produce divergent results. The drafters of the equal protection clause of the 14th amendment, for example, probably didn't intend to create a framework for striking down laws that treat women differently than men. Ginsberg's brilliance as an attorney was to make essentially textualist arguments that convinced courts that--regardless of what the drafters meant to say, the words they actually used plainly apply to discrimination between the genders is it did to discrimination between races.
shard 6y ago
Coming across these terms for the first time, and after reading some material online, it seems these two ideas are mildly compatible? Especially with Justice Scalia being identified as both a originalist and textualist. Would you mind explain the difference?
- jacobolus 6y ago
  In both cases, the Justice decides based on personal preferences or ideological agenda, but in one case the rationalization is based on cherrypicking snippets from contemporaneous sources to speculate about what authors or supporters (of a statue, treaty, constitution, ...) originally meant long ago, and in the other case the rationalization is based on nitpicking the vocabulary and grammar of the document. Both conveniently allow the Justice to pretend that their opinion is completely neutral/technical with no personal choice involved, even in cases where the justification is tendentious to an absurd extreme, and to attack those who disagree as radical unprincipled activists with no respect for the rule of law. They absolve the Justice from taking responsibility for the consequences of the decision. Both originalism and textualism are easily shed by their adherents when insufficient originalist/textualist justification can be found for the desired decision, and following the obvious original intent and plain textual meaning of the statute would lead to an outcome the Justice dislikes.
- zjs 6y ago
  (I have no real expertise on this; I'm just relaying my understanding.) Textualism involves interpreting words with the same meaning that they would have had at the time whey were written. Originalism involves interpreting words in the same way they would have been intended at the time when they were written. To express the crux of the difference, I've seen multiple sources use the example of "cruel and unusual punishment". Textualism would look at the words: what did "cruel" and "unusual" mean in the 1790? Do those definitions describe a particular punishment? Originalism would instead consider intent: would a particular punishment have been considered to be "cruel and unusual" in 1790? Beyond the obvious, what they have in common is what they don't consider: purpose, history, or present meaning. For fun: Purposivism would consider the purpose of the clause: is a punishment the sort of thing the clause was written to protect against? Doctrinalism would look at the way the clause has been interpreted by the court in the past: how does the punishment under consideration compare to punishments previously considered cruel and unusual? Structuralism would examine the clause and its relationship to the rest of the document in which it was written: perhaps the fact that the clause follows "Excessive bail shall not be required, nor excessive fines imposed ..." offers guidance. Judicial pragmatism would consider the context, apply inductive reasoning, and consider the future implications of a ruling. (I don't think I've summarized this one well https://www.iep.utm.edu/leglprag/#H2 https://www.iep.utm.edu/leglprag/#H2 may be useful.)
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jojobas 6y ago
Is there a more textual judge than Gorsuch?
- icelancer 6y ago
  Easily Breyer.

socraticmethod 6y ago

Even textualism is an interpretive process by very human judges.

jeffdavis 6y ago

Which justices do you believe follows originalism, which follow textualism, and which follow neither?

rayiner 6y ago

History is relevant to both originalism and textualism in different ways. Originalists look to what the writers intended the words to mean. (This is how we interpret contracts in Anglo legal systems.) Textualists disregard what the writers intended, but do care about what the words meant at the time they were written. This often leads to the same result, but can sometimes produce divergent results. The drafters of the equal protection clause of the 14th amendment, for example, probably didn't intend to create a framework for striking down laws that treat women differently than men. Ginsberg's brilliance as an attorney was to make essentially textualist arguments that convinced courts that--regardless of what the drafters meant to say, the words they actually used plainly apply to discrimination between the genders is it did to discrimination between races.

shard 6y ago

Coming across these terms for the first time, and after reading some material online, it seems these two ideas are mildly compatible? Especially with Justice Scalia being identified as both a originalist and textualist. Would you mind explain the difference?

jacobolus 6y ago
In both cases, the Justice decides based on personal preferences or ideological agenda, but in one case the rationalization is based on cherrypicking snippets from contemporaneous sources to speculate about what authors or supporters (of a statue, treaty, constitution, ...) originally meant long ago, and in the other case the rationalization is based on nitpicking the vocabulary and grammar of the document. Both conveniently allow the Justice to pretend that their opinion is completely neutral/technical with no personal choice involved, even in cases where the justification is tendentious to an absurd extreme, and to attack those who disagree as radical unprincipled activists with no respect for the rule of law. They absolve the Justice from taking responsibility for the consequences of the decision. Both originalism and textualism are easily shed by their adherents when insufficient originalist/textualist justification can be found for the desired decision, and following the obvious original intent and plain textual meaning of the statute would lead to an outcome the Justice dislikes.
zjs 6y ago
(I have no real expertise on this; I'm just relaying my understanding.) Textualism involves interpreting words with the same meaning that they would have had at the time whey were written. Originalism involves interpreting words in the same way they would have been intended at the time when they were written. To express the crux of the difference, I've seen multiple sources use the example of "cruel and unusual punishment". Textualism would look at the words: what did "cruel" and "unusual" mean in the 1790? Do those definitions describe a particular punishment? Originalism would instead consider intent: would a particular punishment have been considered to be "cruel and unusual" in 1790? Beyond the obvious, what they have in common is what they don't consider: purpose, history, or present meaning. For fun: Purposivism would consider the purpose of the clause: is a punishment the sort of thing the clause was written to protect against? Doctrinalism would look at the way the clause has been interpreted by the court in the past: how does the punishment under consideration compare to punishments previously considered cruel and unusual? Structuralism would examine the clause and its relationship to the rest of the document in which it was written: perhaps the fact that the clause follows "Excessive bail shall not be required, nor excessive fines imposed ..." offers guidance. Judicial pragmatism would consider the context, apply inductive reasoning, and consider the future implications of a ruling. (I don't think I've summarized this one well https://www.iep.utm.edu/leglprag/#H2 https://www.iep.utm.edu/leglprag/#H2 may be useful.)

deleted 6y ago

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jojobas 6y ago

Is there a more textual judge than Gorsuch?

icelancer 6y ago
Easily Breyer.