• Benkei
    3.5k
    The SC has employed several interpretation methods since its creation. What motivates people to ignore other possible interpretations isn't very interesting, it just makes them bad at their job.

    Also, it's rather ludicrous to claim American exceptionalism in this area.
  • tim wood
    5.5k
    genus textualism, species originalism. Obviously there is a text - there has to be a text. And at first cut, the question must be what does it say? My slight understanding of law is that a law both intends and means what it says, and not what it does not say. And of course for best fit the courts of the day have to make bespoke adjustments as if to an off-the-rack suit.

    And originalism - and original intent - imo is just handwaving and voodoo. Scalia's brand of voodoo was his excuse not to rule. That is, he found many issues not represented in the constitution, and consequently, he said, they were properly legislative issues and not judicial issues, whether he, Scalia, liked it or not. Not, in the practical world the court actually occupies, an honorable or defensible stance or argument. I look for the judgment of history to either revile or forget him.

    Aside from that, original intent claims to understand an author's intent, in other words the author's mind. All there ever is, is what the author wrote, and while the text may be claimed to represent the author's mind, it at the same time always blocks and obscures that mind from clear view. And if it differs from the law with or against which it is juxtaposed, then the law must prevail. Else interpretation is just a cookbook full of recipes for trouble. Equally, whatever any interpretation says as to original intent, it, because it is not itself original intent, cannot be original intent. It's all mirrors, smoke, and rabbit holes. And I suspect Scalia was covertly, or from the evidence of his recorded s***-eating grins not so covertly, very proud of his rabbit abilities. Originalism, then, as a method of interpretation for the US Supreme Court, a scam.
  • Benkei
    3.5k
    genus textualism, species originalism.tim wood

    Originalism is not a subset of textualism.
  • tim wood
    5.5k
    Scalia thought it was. He said so. And if you challenge then I will go to the considerable trouble of finding it, thus learning that one if us is right, the other wrong. Let's grant, however and for the sake of discussion, that you are correct. What, then, is originalism based in? And my claim that originalism - presumably the effort to find the mind behind the words and its intentions - is a scam, what to that?
  • Benkei
    3.5k
    Scalia also thought he was an expert historian which led to several mistakes, not the least of which was Heller.

    Textualism has no "intent" involved, it doesn't question what the lawgiver intended, it's solely concerned with what the text to a reasonable person is supposed to mean. Or to put it bluntly: "Fuck the lawgiver". Given that, I don't see in what world originalism can be a subset of textualism if the principle of intent is paramount in one and to be totally ignored in the other.

    EDIT: subsuming originalism under textualism is of course a political play. Textualism is a primary interpretation technique; if a law is clear the other interpretative techniques aren't going to move the interpretation. That's why a textual (or as we call it in thet Netherlands "grammatical") interpretation is paramount and considered the most pure; a clear law only needs textual interpretation. By pretending that including the intent of the lawgiver is still a textual interpretation, the suggestion is it is as pure as an actual textual interpretation. It isn't. Originalism is just a bunch of regressives worrying that a static text will necessarily affect a changing world differently than a bunch of wig-wearing racist scumbags could predict.
  • Echarmion
    1.5k


    Scalia's method was to ask what the text would have meant to an ordinary person at the time it was passed.

    He believed that only the text of the law became operative, not the intent behind it, but that the text needed to be viewed in it's historical context. He was an originalist in outlook, but originalism is not a specific technique.
  • 180 Proof
    2k
    I'm now betting Uncle Justice Thomas will resign, as told to, after the Biden landslide next week so that Moscow Mitch & Putin's Bitch can pack the court with a fourth much younger, rightwingnut before TR45H is evicted from the WH on January 20, 2021. Fuck.

    Dear 117th Congress:

    Impeach Justices Kavanaugh & Barrett. Also, impeach any new justices appointed after Trump loses the election.

    Extend the court 2-3 seats. Review, remove & replace unqualified judges with which the GOP Senate packed the Federal Courts from 2017-2020.

    End the Senate filibuster.


    Sincerely,

    :victory: :mask:
  • Bitter Crank
    8.9k
    A laudable and economical proposal.
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