4 ms·

> Textualism doesn't care about intention or purpose and will gladly apply an interpretation that would have seemed absurd to anyone who drafted or voted for th

by User23 6y ago

> Textualism doesn't care about intention or purpose and will gladly apply an interpretation that would have seemed absurd to anyone who drafted or voted for the law before the implications (e.g. the insanity of the world) laid bare the ambiguity. This is probably why originalism is more what one hears about these days. One could argue that it's just textualism with the serial numbers filed off in practice, but in theory at least an originalist would reject an absurd interpretation that was obviously counter to original legislative intent. But my cynical side agrees that textualism or originalism is just another tortuous path to reach conclusions that have already been decided on before hand. > In Western legal philosophy it's usually considered a violation of separation of powers and of justice more generally for a legislature to directly overturn the result of a particular case, as distinguished from changing the law for future cases. There are various laws passed that granted veteran's benefits to specific individuals. There's also the Palm Sunday Compromise[1]. The latter was certainly politically controversial, and raised criticism along the lines you mention, but it was within Congress's power. [1] https://en.wikipedia.org/wiki/Palm_Sunday_Compromise https://en.wikipedia.org/wiki/Palm_Sunday_Compromise

wahern 6y ago
> This is probably why originalism is more what one hears about these days. I agree. I think most conservatives tend to identify more with self-styled Originalist scholarship and perspectives. But Scalia made a name for himself academically by coining Original Meaning, which is a twist on strict textualism in the context of constitutional interpretation intended to mitigate the harmful consequences--a legislature can't resolve textual ambiguities in constitutional text as easily as it can statutes. Scalia and others spilled much ink distinguishing Originalism from Original Meaning. At least in terms of scholarship Scalia was consistent that way. Regarding the Terry Schiavo case (which is a good point, BTW): that the Congress is empowered to do something doesn't mean using that power isn't a violation of general principles of the law. As the Trump years have proved, and which bitter partisanship was already making clear, much of the law as we understand it is normative even in the U.S. And while I think Congress' intervention in the Schiavo case was wrong on almost every level, it's also true that violations of general principles can be used to prevent an injustice. There's often a tension between equity (i.e. fairness) as it regards particular individuals, and the maintenance of general rules and principles. Justice can be a matter of perspective and priorities. That's one reason why courts can and should jealously guard certain discretions (see, e.g., the Michael Flynn, Judge Sullivan Rule 48(a) debate) and independent powers. (EDIT: I realized after the fact that by referencing the Flynn/Sullivan dispute it's ambiguous which discretion I'm referring to--the court's or the government's--but that ambiguity kinda drives home the point regarding the importance and role of discretion. For the record I support Sullivan's position, but it's a very technical debate.) Circling back to Originalism: resolving that tension is one reason behind the emergence and support of so-called Substantive Due Process, which can be construed as the court giving effect to a right (newly discovered or simply never before honored, depending on your perspective) by refusing to give effect to the government's nominal power to violate it--i.e. by procedurally blocking the government. Which is why it's unfair to characterize Substantive Due Process as an oxymoron, at least as it was originally developed by abolitionists at the turn of the 19th century. (Since then courts have been more aggressive at using their equitable powers, which means more than procedurally blocking government actions by, e.g., refusing to hear a prosecution for sodomy or a replevin action regarding an escaped slave, courts affirmatively give effect to a right by enjoining government actions that aren't gated behind a judicial process.)
- Reelin 6y ago
  > that the Congress is empowered to do something doesn't mean using that power isn't a violation of general principles of the law "Lack of elegance" or "violation of social norms" or similar would (IMO) be a better wording. I see the fact that a united congress is all powerful (can freely amend the constitution, remake the government, etc) as being perfectly in line with (even essential to) the general principles of US law - that the will of the people should rule.

by User23 6y ago

wahern 6y ago

> This is probably why originalism is more what one hears about these days. I agree. I think most conservatives tend to identify more with self-styled Originalist scholarship and perspectives. But Scalia made a name for himself academically by coining Original Meaning, which is a twist on strict textualism in the context of constitutional interpretation intended to mitigate the harmful consequences--a legislature can't resolve textual ambiguities in constitutional text as easily as it can statutes. Scalia and others spilled much ink distinguishing Originalism from Original Meaning. At least in terms of scholarship Scalia was consistent that way. Regarding the Terry Schiavo case (which is a good point, BTW): that the Congress is empowered to do something doesn't mean using that power isn't a violation of general principles of the law. As the Trump years have proved, and which bitter partisanship was already making clear, much of the law as we understand it is normative even in the U.S. And while I think Congress' intervention in the Schiavo case was wrong on almost every level, it's also true that violations of general principles can be used to prevent an injustice. There's often a tension between equity (i.e. fairness) as it regards particular individuals, and the maintenance of general rules and principles. Justice can be a matter of perspective and priorities. That's one reason why courts can and should jealously guard certain discretions (see, e.g., the Michael Flynn, Judge Sullivan Rule 48(a) debate) and independent powers. (EDIT: I realized after the fact that by referencing the Flynn/Sullivan dispute it's ambiguous which discretion I'm referring to--the court's or the government's--but that ambiguity kinda drives home the point regarding the importance and role of discretion. For the record I support Sullivan's position, but it's a very technical debate.) Circling back to Originalism: resolving that tension is one reason behind the emergence and support of so-called Substantive Due Process, which can be construed as the court giving effect to a right (newly discovered or simply never before honored, depending on your perspective) by refusing to give effect to the government's nominal power to violate it--i.e. by procedurally blocking the government. Which is why it's unfair to characterize Substantive Due Process as an oxymoron, at least as it was originally developed by abolitionists at the turn of the 19th century. (Since then courts have been more aggressive at using their equitable powers, which means more than procedurally blocking government actions by, e.g., refusing to hear a prosecution for sodomy or a replevin action regarding an escaped slave, courts affirmatively give effect to a right by enjoining government actions that aren't gated behind a judicial process.)

Reelin 6y ago
> that the Congress is empowered to do something doesn't mean using that power isn't a violation of general principles of the law "Lack of elegance" or "violation of social norms" or similar would (IMO) be a better wording. I see the fact that a united congress is all powerful (can freely amend the constitution, remake the government, etc) as being perfectly in line with (even essential to) the general principles of US law - that the will of the people should rule.