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Tangent, but you said something I find really telling, in conjunction with OP's post. Textualism to its proponents is very much like exploiting a system; figur

Tangent, but you said something I find really telling, in conjunction with OP's post. Textualism to its proponents is very much like exploiting a system; figuring out the exact rules it defines and finding workarounds. It may not even be to a person's own goals (hence the individual not feeling biased when thinking this way), but is enjoyable in its own right in finding those loopholes (like the meme of the referee allowing Airbud to play, "there's nothing in the rule book!"). To its critics, it's like blindly implementing the ticket as written, rather than asking questions and making sure the intent is understood and the problem is being solved correctly. Which explains, in a surprisingly empathetic way, why I am not a textualist, and why some of my family are, when it comes to political discussions.

zhengyi13 6y ago
In the D&D world that I'm familiar with, we call these sort of people "rules lawyers", and there too, they ruin the game for everyone.
- lostcolony 6y ago
  Oh, 100%. I shared Thousand Year Old Vampire with a relative that matches this, thinking his love of history would make it an interesting thing, and his response was "I can already think of ways to beat the system", even before he actually read the system. It's like...yeah, it's a single player pen and paper RPG. You probably can. Why...why would you though? But that's what I mean; exploiting perceived flaws in the system is a greater goal -even when it ruins the game for themselves-. Because there is a greater sense of satisfaction in finding loopholes. And I understand that sense; I just find more value in understanding the underlying goal and intent and delivering on that.
dpifke 6y ago
My understanding of strict textualists' arguments (especially Gorsuch), is that they view it as a separation of powers issue. By only looking at the text of the statute, the Court—which consists of unelected officials with lifetime terms—is trying to limit its power. If the text is unclear, they feel it should fall on elected officials to clarify it.
- lostcolony 6y ago
  Certainly, but there's a problem with that. Because an outcome will still happen; an outcome determined by the law, -and its interpretation-. Even an interpretation of "we should (overturn lower court's decision/uphold lower court's decision) because the law is unclear" is an interpretation of the law. After all, it is as equally fair to say "The wording of this law leads us to a clear understanding of the intent to mean X, and if the legislative body feels that to be in error they should pass new legislation to clarify it" as it is to say "The wording of this law leads us to an unclear understanding, and irrespective of intent we will decide !X until the legislative body passes new legislation to clarify it". While the non-textualists may be explicit in trying to understand the intent of a law in accordance with their own biases, the textualists are still interpreting the law according to their own biases. There have even been some...really interesting cases of logic to try and do so (i.e., earlier generations' understanding of 'sex' matters when interpreting anti-discrimination statutes, but earlier generations' understanding of 'gun' does not matter when interpreting the 2nd amendment). It's incredibly rare (pretty much unheard of in the case of a few of them) for them to decide against their own predictable biases because a law is ambiguous, or a situation is novel.
ncmncm 6y ago
Textualism invariably turns out to be a shuck: people who claim to be textualists are textual only when they can find a way to make textualism produce the answer they wanted. Legal language is slippery enough that this is almost always possible. On the few occasions when it is not possible, we learn the truth. Scalia famously revealed his true colors on occasion.
gorgoiler 6y ago
...sic that most American of phrases, getting off on a technicality.
js2 6y ago
> At least at the Supreme Court level, whether a justice professes textualism, purposivism, intentionalism, or pastafarianism as a method of statutory interpretation is likely to play less of a role in his or her decisions than ideological druthers. None of these approaches or any other is close to fully determinate, giving a good deal of room for a judge's values to play a major role. Moreover, even when a methodology appears to point reasonably clearly towards a result, judges sometimes disregard their methodological commitments in favor of their ideological ones. http://www.dorfonlaw.org/2016/06/does-textualism-have-bias.html http://www.dorfonlaw.org/2016/06/does-textualism-have-bias.h... Here's Richard Posner on Scalia: > Does an ordinance that says that “no person may bring a vehicle into the park” apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes. After all, an ambulance is a vehicle—any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so. And perverse results are a small price to pay for the objectivity that textual originalism offers (new dictionaries for new texts, old dictionaries for old ones). But Scalia and Garner later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout their book. > One senses a certain defensiveness in Justice Scalia’s advocacy of a textualism so rigid as to make the ambulance driver a lawbreaker. He is one of the most politically conservative Supreme Court justices of the modern era and the intellectual leader of the conservative justices on the Supreme Court. Yet the book claims that his judicial votes are generated by an “objective” interpretive methodology, and that, since it is objective, ideology plays no role. It is true, as Scalia and Garner say, that statutory text is not inherently liberal or inherently conservative; it can be either, depending on who wrote it. Their premise is correct, but their conclusion does not follow: text as such may be politically neutral, but textualism is conservative. https://newrepublic.com/article/106441/scalia-garner-reading-the-law-textual-originalism https://newrepublic.com/article/106441/scalia-garner-reading...

zhengyi13 6y ago

In the D&D world that I'm familiar with, we call these sort of people "rules lawyers", and there too, they ruin the game for everyone.

lostcolony 6y ago
Oh, 100%. I shared Thousand Year Old Vampire with a relative that matches this, thinking his love of history would make it an interesting thing, and his response was "I can already think of ways to beat the system", even before he actually read the system. It's like...yeah, it's a single player pen and paper RPG. You probably can. Why...why would you though? But that's what I mean; exploiting perceived flaws in the system is a greater goal -even when it ruins the game for themselves-. Because there is a greater sense of satisfaction in finding loopholes. And I understand that sense; I just find more value in understanding the underlying goal and intent and delivering on that.

dpifke 6y ago

My understanding of strict textualists' arguments (especially Gorsuch), is that they view it as a separation of powers issue. By only looking at the text of the statute, the Court—which consists of unelected officials with lifetime terms—is trying to limit its power. If the text is unclear, they feel it should fall on elected officials to clarify it.

lostcolony 6y ago
Certainly, but there's a problem with that. Because an outcome will still happen; an outcome determined by the law, -and its interpretation-. Even an interpretation of "we should (overturn lower court's decision/uphold lower court's decision) because the law is unclear" is an interpretation of the law. After all, it is as equally fair to say "The wording of this law leads us to a clear understanding of the intent to mean X, and if the legislative body feels that to be in error they should pass new legislation to clarify it" as it is to say "The wording of this law leads us to an unclear understanding, and irrespective of intent we will decide !X until the legislative body passes new legislation to clarify it". While the non-textualists may be explicit in trying to understand the intent of a law in accordance with their own biases, the textualists are still interpreting the law according to their own biases. There have even been some...really interesting cases of logic to try and do so (i.e., earlier generations' understanding of 'sex' matters when interpreting anti-discrimination statutes, but earlier generations' understanding of 'gun' does not matter when interpreting the 2nd amendment). It's incredibly rare (pretty much unheard of in the case of a few of them) for them to decide against their own predictable biases because a law is ambiguous, or a situation is novel.

ncmncm 6y ago

Textualism invariably turns out to be a shuck: people who claim to be textualists are textual only when they can find a way to make textualism produce the answer they wanted. Legal language is slippery enough that this is almost always possible. On the few occasions when it is not possible, we learn the truth. Scalia famously revealed his true colors on occasion.

gorgoiler 6y ago

...sic that most American of phrases, getting off on a technicality.

js2 6y ago

> At least at the Supreme Court level, whether a justice professes textualism, purposivism, intentionalism, or pastafarianism as a method of statutory interpretation is likely to play less of a role in his or her decisions than ideological druthers. None of these approaches or any other is close to fully determinate, giving a good deal of room for a judge's values to play a major role. Moreover, even when a methodology appears to point reasonably clearly towards a result, judges sometimes disregard their methodological commitments in favor of their ideological ones. http://www.dorfonlaw.org/2016/06/does-textualism-have-bias.html http://www.dorfonlaw.org/2016/06/does-textualism-have-bias.h... Here's Richard Posner on Scalia: > Does an ordinance that says that “no person may bring a vehicle into the park” apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes. After all, an ambulance is a vehicle—any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so. And perverse results are a small price to pay for the objectivity that textual originalism offers (new dictionaries for new texts, old dictionaries for old ones). But Scalia and Garner later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout their book. > One senses a certain defensiveness in Justice Scalia’s advocacy of a textualism so rigid as to make the ambulance driver a lawbreaker. He is one of the most politically conservative Supreme Court justices of the modern era and the intellectual leader of the conservative justices on the Supreme Court. Yet the book claims that his judicial votes are generated by an “objective” interpretive methodology, and that, since it is objective, ideology plays no role. It is true, as Scalia and Garner say, that statutory text is not inherently liberal or inherently conservative; it can be either, depending on who wrote it. Their premise is correct, but their conclusion does not follow: text as such may be politically neutral, but textualism is conservative. https://newrepublic.com/article/106441/scalia-garner-reading-the-law-textual-originalism https://newrepublic.com/article/106441/scalia-garner-reading...