3 ms·

It's almost as if textualism is just an excuse, and not actually a coherent legal view... I have mixed feelings on the ruling. It sounds to me like a crime did

It's almost as if textualism is just an excuse, and not actually a coherent legal view... I have mixed feelings on the ruling. It sounds to me like a crime did occur. But the CFAA is also overly vague... Without reading the details of the case and the statue, it's hard for me to be sure what to think here. I guess looking forward, this will force police departments and others to be more explicit in their access policies, which it sounds like here there just wasn't any? I guess that's a win?

mardifoufs 5y ago
As opposed to the very coherent legal view of a "living constitution"? Because sure, textualism can seem arbitrary at times, but it at least tries not to be. I don't understand what's more coherent about judges basically ignoring or rewriting the laws in whatever way they want, and do it openly under the pretext that they felt like "things just change bro, society is just different now & they didn't mean what they wrote anyways" It sounds pretty harsh but to me it's boils down to this: while textualism can lead to excesses & dubious interpretations by judges...The alternative can lead to any interpretation since it surrenders the entire judicial process to the judges while hoping they won't go too far because they just wouldn't dare?
cletus 5y ago
That is in fact exactly the problem with strict textualism: It's actually not that strict. I am sympathetic to the criticisms of the "living document" ideology. It's populism masquerading as jurisprudence. Or, as Scalia put it, it's no philosophy at all. HOWEVER, textualism is not as clean as it's advocates will argue. Case in point: The post-Civil War era Supreme Court (the so-called "Redeemer" court) went out of it's way to essentially dismantle legislation aimed to protecting minorities in the name of textualism. This was the origin of hate crime legislation, which came about because of jury nullification, essentially. Consider the aftermath of the Colifax massacre [1]: > This decision, in United States v. Cruikshank, the legal historian Lawrence Goldstone argues, provided a guide for the campaign of racist terrorism that would suppress the black vote and enshrine a white man’s government for generations. “The Colfax defendants would have had to announce their plan to violate their victims’ rights on account of the color of their skin in order to be culpable,” Goldstone wrote. “Justice Bradley had thus communicated to any Redeemer with violent intent that to avoid federal prosecution one need simply to keep one’s mouth shut before committing murder.” [1]: https://www.theatlantic.com/ideas/archive/2018/09/redemption-court/566963/ https://www.theatlantic.com/ideas/archive/2018/09/redemption...

mardifoufs 5y ago

As opposed to the very coherent legal view of a "living constitution"? Because sure, textualism can seem arbitrary at times, but it at least tries not to be. I don't understand what's more coherent about judges basically ignoring or rewriting the laws in whatever way they want, and do it openly under the pretext that they felt like "things just change bro, society is just different now & they didn't mean what they wrote anyways" It sounds pretty harsh but to me it's boils down to this: while textualism can lead to excesses & dubious interpretations by judges...The alternative can lead to any interpretation since it surrenders the entire judicial process to the judges while hoping they won't go too far because they just wouldn't dare?

cletus 5y ago

That is in fact exactly the problem with strict textualism: It's actually not that strict. I am sympathetic to the criticisms of the "living document" ideology. It's populism masquerading as jurisprudence. Or, as Scalia put it, it's no philosophy at all. HOWEVER, textualism is not as clean as it's advocates will argue. Case in point: The post-Civil War era Supreme Court (the so-called "Redeemer" court) went out of it's way to essentially dismantle legislation aimed to protecting minorities in the name of textualism. This was the origin of hate crime legislation, which came about because of jury nullification, essentially. Consider the aftermath of the Colifax massacre [1]: > This decision, in United States v. Cruikshank, the legal historian Lawrence Goldstone argues, provided a guide for the campaign of racist terrorism that would suppress the black vote and enshrine a white man’s government for generations. “The Colfax defendants would have had to announce their plan to violate their victims’ rights on account of the color of their skin in order to be culpable,” Goldstone wrote. “Justice Bradley had thus communicated to any Redeemer with violent intent that to avoid federal prosecution one need simply to keep one’s mouth shut before committing murder.” [1]: https://www.theatlantic.com/ideas/archive/2018/09/redemption-court/566963/ https://www.theatlantic.com/ideas/archive/2018/09/redemption...