Originalism looks at the text and then looks at the intent when the law was passed. That’s the “original” part of originalism: literallyoriginal intent.
Textualism just stops at the first point.
I think Textualism is the most bullshit view one can have as a justice. I’m not a huge fan of Originalism either, but at least I get the idea. Textualism is a mine field of impossibility. Every law would have to be 500+ pages to cover literally every possible scenario that could occur, which means the unintended consequences are impossible to avoid not even considering the nearly inevitable paradox scenarios that will end up arising. This is how we end up with regulations that make no damned sense - trying to cover all the angles and loopholes until things are just a wall of insanity that barely works.
I mean according to Textualism we don’t have freedom of speech outside of actually speaking (maybe if you write it in a paper so it’s “press”). The First Amendment doesn’t say “freedom to post on the internet” anywhere in it. All technology past the 18th Century would be exempt. It’s just silly in every way and reminds me why I loathe Thomas.
Edit: Now mind you all that said, Textualism isn’t disqualifying.
Not necessarily. If Gorsuch believed that the President had the power to unilaterally dismiss Congress and rule as a dictator, that would be disqualifying. And if it turns out that a Justice on the Court already believed that the President had the power to unilaterally dismiss Congress and rule as a dictator, that belief would still be disqualifying. (Thomas never speaks; who knows what he’s thinking these days!)
Was Japanese internment Constitutional? I’m not comfortable answering: “Yes, obviously, because the Supreme Court once said so!” The Supreme Court in Dredd Scott said free states couldn’t exist seventy years after the Founding Fathers made it clear that “free states” were totally acceptable under the Constitution.
Originalism is a silly judicial philosophy that makes even less sense that Textualism. It’s a viewpoint that intentionally privileges the views of white straight rich men above all others, because those were the people who wrote our Constitution. (Look at the criticism of Justice Sotamayor’s self-identification as a “wise Latina”.)
Originalism also has a very tenuous link to the viewpoints of the rich straight white dudes who wrote the Constitution. When Scalia wrote about “the new police professionalism” every Founding Father shed tears in heaven. The whole vast edifice of modern American jurisprudence would be unrecognizable to the Founders. EULAs and airport security ought to awake the spirits of our Founders and summon them back to this realm to feast on the blood of the living, but “Originalists” eat that right up, and make logical contortions to explain why all the crazy Constitutional innovations they like were totally what the Founders were thinking of!
Finally, Originalism is also disqualifying today in a way it might not have been when Sclaia was confirmed because we literally have Scalia’s example to show why it’s not a coherent legal philosophy. (And don’t get me wrong: Scalia was brilliant, and I liked his writing. He just had blind spots to his own contradictions and hypocrisies, as most of us do.)
Originalism is just a ruse to disguise what’s going on below the surface. It’s not an accurate description of the legal process used to render decisions.
. . .
(PS: If this is duplicative of the content Quaro linked, sorry. I’m not going to listen to a podcast to explain legal concepts. Text > Podcasts!)
There’s nothing there… you can look at the writings themselves, presented in that article. They’re not identical at all. This criticism is pretty contrived.
While I wouldn’t go that far, I also agree there’s not much there; this doesn’t seem like a place for creative writing, so standard definitions and rote logical constructs get used to describe a specific case. I personally suspect it’s a case of regurgitation, not plagiarism.
[quote]
McCain, in remarks to reporters, said he had “no choice” but to go along with a change in rules ending a tradition of 60 votes in the 100-member Senate needed to advance Supreme Court nominees to a final vote. He said he would support the rule change “because we need to confirm Gorsuch.”
In the past, McCain has strongly opposed such a change.[/quote]
I mean, I haven’t bought the “maverick” thing for quite a while; clearly that was mostly PR not substance.
But McCain is 80. This is likely his last term in the Senate. He has nothing at all to lose by going his own way. Why bother to publicly disagree but then fall in line when it comes to action? Does he really want his tombstone to read, “Sure, I was a total hypocrite, but at least I did what Donald Trump told me to?”
Yeah, yeah the only thing Trump did was nominate the man, and the only thing the GOP did was lie to voters to make it sound like the POTUS never nominate seats in their last year… but tell us again how you feel about it Timex. You have been unclear the other twenty times you’ve said it.
Well, at least now we know that all the pious noises The Amazing Turtle-Human Hybrid Senator has made over the years about “hallowed Senate traditions” are just that–power is more important. His and his party’s hypocrisy is laid bare. They’ve got quite the raging tumescence going for Gorsuch and his sweet, sweet Textualism (which just happens to favor the powers that be most of the time).
Gorsuch is qualified. That doesn’t mean people like the way he has rendered decisions previously. It’s ok to be against a nominee because you think their views on law are pretty crap. This is the case with Gorsuch. Additionally, the GOP bent the rules over last year and didn’t lube. And now they are going to do it again, cause they’re the GOP and honestly don’t give a crap about anything but their own power. If the GOP wanted to have a candidate that more people would get in line behind, there’s a very qualified guy named Garland that I think they have heard about. I mean, Gorsuch has intimated that he’s against the roe v wade decision - and you expect dems to vote for him? Just cause?
I mean, Trump fit the qualifications for president (except maybe for some felonies that he hasn’t been tried and found guilty of yet). Doesn’t mean everyone should just agree that he’s a good choice for the job and fall in line.
Anyone who is nominated who has any care for the rule of law should hold the GOP accountable for their stonewalling of the constitution and decline to accept the nomination until Garland gets his vote.
Generally, the Senate has historically accepted the nominations of justices based on qualifications, not whether you like their decisions. Because it’s the choice of the president.
Hey, I absolutely agree that it was bull. I said so at the time.
But that shit is done. It doesn’t change anything about Gorsuch. It doesn’t make him unqualified.
And basically any conservative is going to support Gorsuch, regardless of their feelings about Trump, which was the point. Folks aren’t supporting Gorsuch because Trump says so.
The president chooses, but they can decide to choose someone with broad support and mainstream views or outliers. Garland was a moderate choice. Gorsuch is not. It’s ok for the DEMS not to confirm - that’s part of what they are allowed to do by the constitution, even if historically it hasn’t been done. If the GOP wants to throw tradition and history away, then the DEMS shouldn’t allow tradition and history to get in the way of doing what is principled and lawful. And voting against Gorsuch is both. He is anathema to an awful lot of what DEMS stand for, so voting no is not only appropriate, it is expected by their constituents.
The president can choose a fight, or choose an equally qualified candidate who isn’t a fight. Up to the president.
And that’s fine. It’s not sour milk and it’s not about making a measured political decision, it’s about doing the right thing, and the right thing from a dem perspective is to not vote for this guy. Simple as that. If the GOP wants to continue down the path of tearing down the senate traditions and rules, they are in power and can do so. It will bite them in the butt soon enough.
And you know that my comment about the president choosing a more moderate candidate wasn’t about trump pulling the gorsuch choice. It was about his original choice of Gorsuch vs every other candidate who would have been more palatable to the dems. Please don’t be snarky and take the discussion in ways that were obviously not intended. Neither of us is an idiot.
Posner writing a concurrence in a recent discrimination ruling:
I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of “sex discrimination” that the Congress that enacted it would not have accepted. This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch. We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963–1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught.
And from the ruling (linked in the above piece)
A diehard “originalist” would argue that what was believed in 1964 defines the scope of the statute for as long as the statutory text remains unchanged, and therefore until changed by Congress’s amending or replacing the statute. But as I noted earlier, statutory and constitutional provisions frequently are interpreted on the basis of present need and understanding rather than original meaning. Think for example of Justice Scalia’s decisive fifth vote to hold that burning the American flag as a political protest is protected by the free-speech clause of the First Amendment, provided that it’s your flag and is not burned in circumstances in which the fire might spread. Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990). Burning a flag is not speech in the usual sense and there is no indication that the framers or ratifiers of the First Amendment thought that the word “speech” in the amendment embraced flag burning or other nonverbal methods of communicating. 28 No. 15-1720 Or consider the Supreme Court’s holding that the Fourth Amendment requires the issuance of a warrant as a precondition to searching a person’s home or arresting him there. E.g., Johnson v. United States, 333 U.S. 10, 13–14 (1948). There is nothing in the amendment about requiring a warrant ever. All that the amendment says about warrants is that general warrants, and warrants that are vague or issued without probable cause, are invalid. In effect the Supreme Court rewrote the Fourth Amendment, just as it rewrote the First Amendment in the flag-burning cases, and just as it rewrote the Sherman Act, and just as today we are rewriting Title VII. We are Blackstone’s heirs.
