• Benkei
    3.8k
    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
    5.6k
    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
    3.8k
    genus textualism, species originalism.tim wood

    Originalism is not a subset of textualism.
  • tim wood
    5.6k
    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
    3.8k
    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
    1.6k


    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
    2.1k
    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.
  • Hanover
    5.9k
    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.Benkei

    From Wiki:

    "The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text to be. Most originalists, such as Antonin Scalia, are associated with this view."

    "Bret Boyce described the origins of the term originalist as follows: The term "originalism" has been most commonly used since the middle 1980s and was apparently coined by Paul Brest in The Misconceived Quest for the Original Understanding.[1] It is often asserted that originalism is synonymous with strict constructionism.[6][7][8][9]


    Supreme Court Justice Antonin Scalia was a firm believer in originalism
    Both theories are associated with textualist and formalist schools of thought, however there are pronounced differences between them. Scalia differentiated the two by pointing out that, unlike an originalist, a strict constructionist would not acknowledge that he uses a cane means he walks with a cane (because, strictly speaking, this is not what he uses a cane means).[10] Scalia averred that he was "not a strict constructionist, and no-one ought to be"; he goes further, calling strict constructionism "a degraded form of textualism that brings the whole philosophy into disrepute".[11]"

    https://en.wikipedia.org/wiki/Originalism

    I take this to mean that it's impossible to interpret text without some reference to what the original meaning of the terms are. I also see Scalia's distinction between textualism and strict constructionism to mean he does allow for contextualizing any law with other bodies of law and making sense of the whole.
  • Benkei
    3.8k
    I was referring to the difference between textualism, which isn't concerned with what the drafter intended, and originalism, which does. That wasn't to suggest textualism is idiotic literalism.

    I find adhering to a mode of interpretation as the interpretation idiotic. And originalism in particular has been a sorry excuse to push regressive interpretations with judges overestimating their ability to understand language and history. Prefatory clause indeed. :lol:
  • Hanover
    5.9k
    I find adhering to a mode of interpretation as the interpretation idiotic.Benkei

    You've got to choose some mode, and you ought to be consistent, not jumping from mode to mode as the whim hits you, unless you choose to adhere to the whimsical mode, which is good because it leaves them guessing.

    What the mode ought to be is a matter of debate, but I assume you have to provide some reason for your preference, and whatever those reasons, you ought be able to defend them. The basis for a restrictive method of interpretation is in protecting the democracy from an overly ambitious group of 5 people who wish to impose their wisdom on the entire populace. I don't think that reasoning is stupid, and I think there is some wisdom in letting the citizens decide. Even though the democracy does drag its feet in bringing about change, I'd submit its the legitimate way to do it.
  • Benkei
    3.8k
    No, there's no whim to it, it's to understand the various nuances different interpretations offer and then select the one that is most in accordance with the dictates of public conscience of the current times. That might mean a different interpretation of the same text at different times.

    Edit: or even combine them. But these things are obvious if you're trained in the Netherlands. A judge here is expected to research the different interpretations.
  • Hanover
    5.9k
    No, there's no whim to it, it's to understand the various nuances different interpretations offer and then select the one that is most in accordance with the dictates of public conscience of the current times. That might mean a different interpretation of the same text at different times.Benkei

    How is the zeitgeist determined that will dictate which interpretative scheme you use? This sounds like you're getting close to allowing public sentiment to enter the judge's decision making process, which seems antithetical to the concept of objective justice.

    Edit: or even combine them. But these things are obvious if you're trained in the Netherlands. A judge here is expected to research the different interpretations.Benkei

    I know, things are soooo much better in the Netherlands.
  • Benkei
    3.8k
    How is the zeitgeist determined that will dictate which interpretative scheme you use? This sounds like you're getting close to allowing public sentiment to enter the judge's decision making process, which seems antithetical to the concept of objective justice.Hanover

    Objective justice. :rofl:

    And no, we're not talking about public sentiment, we're talking about the dictates of public conscience or, if you prefer, ordre public.

    These dictates do not inform interpretation, they are employed to distinguish between the different interpretations and select the most appropriate one.
  • Echarmion
    1.6k
    How is the zeitgeist determined that will dictate which interpretative scheme you use? This sounds like you're getting close to allowing public sentiment to enter the judge's decision making process, which seems antithetical to the concept of objective justice.Hanover

    The idea is that you figure out what the law is, in a given situation. Laws are after all made for real people in real life. They're not some kind of artefact to carefully preserve in a glass case. They're made to be applied.

    It's not an algorithm that you input some facts into and it'll spit out the result. You weigh different aspects, you decide which ones are the most important ones, and you make a decision. The constraining factor is that you have to be able to justify your decision, and that justification has to obey a bunch of rules. Acting as if there was one single rule which solves cases is merely obfuscating the actual decision making process.
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