# Originalism and Textualism **URL:** \ **Category:** Great Debates\ **Created:** [July 28, 2013, 5:31am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724 "2013-07-28T05:31:31Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![IceQube](https://avatars.discourse-cdn.com/v4/letter/i/dfb087/32.png) [@IceQube](https://boards.straightdope.com/u/IceQube)\ **Post date:** [July 28, 2013, 5:31am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/1 "2013-07-28T05:31:31Z")
Are you for or against a reading of the Constitution ground in the framers’ intent? One argument for originalism is that it eschews the problem of a slippery and changing Constitution. Change is inevitable, but not all change is good, so let’s deny any evolution of views since the moment Thomas Jefferson and his colleagues laid ink on paper. This, taken to its logical extreme, has resulted in some asinine opinions, such as the one in which Justice Clarence Thomas found lethal injection to be legal despite controversy regarding whether pain is inflicted through injection. Because in the 18th century, people were frequently quartered, which caused pain, the eighth amendment cannot be understood to deny any infliction of pain expect gratuitous pain - not pain designed to enhance death sentences. ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [July 28, 2013, 7:03am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/2 "2013-07-28T07:03:50Z")
Jefferson wasn’t at the Constitutional Convention as he was in Paris at the time. As Ambassador if my recollection of history serves me well. Drawing and quartering was exactly the kind of treatment that the “cruel and unusual” punishment clause was trying to end. In my opinion. Keep in mind that a “scholar” like Thomas obviously disagrees. The problem with originalism/textualism is that it posits that the framers were all of a like mind that the framers were all of a like mind and all had exactly the same thing in mind and we have to do everything the way they did it. Nothing could be further from the truth. They disagreed mightily on just about everything, the same way we do today. And they knew damn well that things would change over time and hoped they would. For some the immediate continuity of political power for slavery and slave owners was hugely important. But men like Jefferson and Washington (who came to the point eventually of never speaking to each other) who owned slaves hoped and assumed it would end some day. Just like treaties today have ambiguity deliberately, so did the constitution have them then, so that later generations could deal with the consequences of new developments. Scalia’s originalism is complete hogwash and just a fig leaf over his conservative results oriented politics. A true originalist utterly rejects the judicial power of judicial review as seized by the court in Marbury v. Madison because the founders never specified in the constitution that it was there. And supposedly the federal government is a government of limited powers. Marbury v. Madison was the first time the court struck down a statute on the grounds of constitutionality, and the second time wasn’t for another 50 years, with Dred Scott. This insistence on only allowing “enumerated powers” for the legislative and executive branches for Scalia, doesn’t apply to the judicial branch over the very basic and well accepted doctrine of judicial review, which Scalia uses all the time when it suits him. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 28, 2013, 1:45pm UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/3 "2013-07-28T13:45:19Z")
Since we’re discussing Originalism, can we get a cite of Thomas’ original statements about drawing and quartering? BTW, does the OP know the difference between Originalism and Textualism? They aren’t the same thing. Originalism is the method of trying to understand the “original intent” of the framers when they wrote the words they did. To do that, you have to somehow get inside the mind of the framer. Textualism depends on the text itself, without regard to the original intent of the framers, generally. Textualists will take pains to understand the meaning of words at the time of their writing since word meanings do change over time. ---
**Author:** ![Robb](https://avatars.discourse-cdn.com/v4/letter/r/a183cd/32.png) [@Robb](https://boards.straightdope.com/u/Robb)\ **Post date:** [July 28, 2013, 5:22pm UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/4 "2013-07-28T17:22:36Z")
Using the intent of the ratifiers can be helpful when you can determine their intent. Using the intent of the framers is less helpful. Ratifying the Constitution gave it force, writing didn’t. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [July 28, 2013, 6:16pm UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/5 "2013-07-28T18:16:41Z")
The problem I see is a lot of times the “originalist” position seems to be “this is what the Constitution would have meant if I had written it” - a justice is just forming his own opinion and then claiming historical authority for it. Another problem is that originalist justices will happily ignore original intent when the founder’s intent is undeniable - but conflicts with the opinions of the justice. Personally, I have no problem with justices forming their own opinions within reasonable limits. Interpreting the meaning of the Constitution is their role. But I don’t like it when some justices start arguing that their opinions are somehow truer than the opinions of other justices. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 28, 2013, 7:00pm UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/6 "2013-07-28T19:00:13Z")
Originalism is fine as a last resort. It’s useless as the first method of interpretation, because the decision to ratify depends on the interpretation of all those voting, not just the proponent. Textualism is a much more sensible approach, but still depends on interpreting the language of people speaking a long time ago. ---
**Author:** ![IceQube](https://avatars.discourse-cdn.com/v4/letter/i/dfb087/32.png) [@IceQube](https://boards.straightdope.com/u/IceQube)\ **Post date:** [July 28, 2013, 7:28pm UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/7 "2013-07-28T19:28:25Z")
> [@John\_Mace](#): > > Since we’re discussing Originalism, can we get a cite of Thomas’ original statements about drawing and quartering? > > BTW, does the OP know the difference between Originalism and Textualism? They aren’t the same thing. Originalism is the method of trying to understand the “original intent” of the framers when they wrote the words they did. To do that, you have to somehow get inside the mind of the framer. Textualism depends on the text itself, without regard to the original intent of the framers, generally. Textualists will take pains to understand the meaning of words at the time of their writing since word meanings do change over time. > **[BAZE v. REES](https://www.law.cornell.edu/supct/html/07-5439.ZS.html)** > [@Clarence Thomas](#): > > “ ‘That you and each of you, be taken to the place from whence you came, and from thence be drawn on a hurdle to the place of execution, where you shall be hanged by the necks, not till you are dead; that you be severally taken down, while yet alive, and your bowels be taken out and burnt before your faces—that your heads be then cut off, and your bodies cut in four quarters, to be at the King’s disposal. And God Almighty have mercy on your souls.’ ” G. Scott, History of Capital Punishment 179 (1950).\*\* > > ``` > The principal object of these aggravated forms of capital punishment was to terrorize the criminal, and thereby more effectively deter the crime. Their defining characteristic was that they were purposely designed to inflict pain and suffering beyond that necessary to cause death. As Blackstone put it, “in very atrocious crimes, other circumstances of terror, pain, or disgrace [were] superadded.” 4 Blackstone 376. These “superadded” circumstances “were carefully handed out to apply terror where it was thought to be most needed,” and were designed “to ensure that death would be slow and painful, and thus all the more frightening to contemplate.” Banner 70. > > ``` > > Although the Eighth Amendment was not the subject of extensive discussion during the debates on the Bill of Rights, there is good reason to believe that the Framers viewed such enhancements to the death penalty as falling within the prohibition of the Cruel and Unusual Punishments Clause. > > […] > > In light of this consistent understanding of the Cruel and Unusual Punishments Clause as forbidding purposely torturous punishments, > > […] > > - As gruesome as these methods of execution were, they were not the worst punishments the Framers would have been acquainted with. After surveying the various “superadd[itions]” to the death penalty in English law, as well as lesser punishments such as “mutilation or dismembering, by cutting off the hand or ears” and stigmatizing the offender “by slitting the nostrils, or branding in the hand or cheek,” Blackstone was able to congratulate his countrymen on their refinement, in contrast to the barbarism on the Continent: “Disgusting as this catalogue may seem, it will afford pleasure to an English reader, and do honor to the English law, to compare it with that shocking apparatus of death and torment to be met with in the criminal codes of almost every other nation in Europe.” 4 Blackstone 377. > [@The\_Second\_Stone](#): > > But men like Jefferson and Washington (who came to the point eventually of never speaking to each other) Wait what happened? Could you elaborate? ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [July 28, 2013, 9:48pm UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/8 "2013-07-28T21:48:15Z")
I prefer textualism, personally. I do believe that where the COnstitution allows for changing social standards, it should be interpreted in that light. The 8th amendment is a great example. What is cruel and unusual? Whatever is cruel and unusual today, IMO. Same goes for the 9th amendment. The founders may not have intended to create reproductive rights, but they foresaw that they wouldn’t think of everything and so included the 9th amendment. However, some things have a very specific meaning and were meant to be very strict. The 1st amendment couldn’t be clearer in its admonishment that Congress may pass no law restricting the foregoing freedoms listed. Of course, Congress has passed such laws, but they are more and more likely to get struck down due to being unable to survive strict scrutiny. Whatever the interpretation of the Constitution, however, it is law, and should be interpreted using the same standard as we would use to interpret say, Davis-Bacon or the Social Security Act. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 28, 2013, 10:51pm UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/9 "2013-07-28T22:51:47Z")
> [@IceQube](#): > > [BAZE v. REES](http://www.law.cornell.edu/supct/html/07-5439.ZS.html) You’re reading it exactly the opposite way it was written. He’s saying that something like “drawing and quartering” would have been considered cruel and unusual by the framers. The point he is making is that it is “cruel and unusual” to devise methods which purposely add pain to the punishment, but that is different from saying the punishment must not be painful in any way. Read this sentence again carefully: _Although the Eighth Amendment was not the subject of extensive discussion during the debates on the Bill of Rights, there is good reason to believe that the Framers viewed such enhancements to the death penalty as falling within the prohibition of the Cruel and Unusual Punishments Clause._ “falling with the prohibitions” means it’s a no-no. If the pain is great, It violates amendment eight! ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [July 28, 2013, 11:28pm UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/10 "2013-07-28T23:28:55Z")
I’d say that the conditions in most prisons violate the 8th amendment. Which is why prison should be reserved only for the most incorrigible and violent. All others, those not likely to repeat their crimes and those who are non-violent, should be given alternative punishments. ---
**Author:** ![Jragon](https://avatars.discourse-cdn.com/v4/letter/j/e19b73/32.png) [@Jragon](https://boards.straightdope.com/u/Jragon)\ **Post date:** [July 28, 2013, 11:44pm UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/11 "2013-07-28T23:44:13Z")
I personally take the approach that the text should be taken as literally as possible, but there’s always a bit of relativism that should be exercised when allowed. For instance, while one should understand the intent of “cruel and unusual punishment”, I do think that what exactly “cruel and unusual” entails should be scaled for its time period, by which I mean that as less and less cruel methods become available, the standard for what constitutes cruelty becomes stricter and stricter. In other words, allowing for a little interpretation due to linguistic drift, old laws and amendments should be interpreted as if they were written verbatim yesterday. After all, that’s why you can change the Constitution and repeal laws, so you can update things when they become impractical and messy. Is this always ideal? Definitely not, but I think it’s better than the alternative of everybody and their mom trying to read their own intent into what the founders “really meant”. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 29, 2013, 12:16am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/12 "2013-07-29T00:16:13Z")
I favor textualism because I’m not a mind reader. But I think we need to make it somewhat easier to amend the constitution. That mitigates any serious, negative effects that might occur due to a textualist reading being out of tune with the times. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 29, 2013, 12:46am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/13 "2013-07-29T00:46:04Z")
> [@IceQube](#): > > Because in the 18th century, people were frequently quartered . . . But not **here.** Colonial Americans convicted of witchcraft were not even burned at the stake, they were hanged. Torture was (for the most part, and not counting slave-lashings) a thing only Indians did. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 29, 2013, 12:49am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/14 "2013-07-29T00:49:22Z")
> [@John\_Mace](#): > > But I think we need to make it somewhat easier to amend the constitution. I’d go for a process allowing amendment by national referendum requiring something more than 50%+1 majority, but not two-thirds. 55%, maybe. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 29, 2013, 12:54am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/15 "2013-07-29T00:54:30Z")
> [@BrainGlutton](#): > > I’d go for a process allowing amendment by national referendum requiring something more than 50%+1 majority, but not two-thirds. 55%, maybe. Definitely a super-majority, but I’d want it to be a super-majority of the states, not the general electorate. Maybe we cut out the approval needed by Congress and just have 3/4 or 2/3 of the state legislatures approve any change. Or, it might be a good idea to have regularly scheduled Constitutional Conventions to deal with this. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 29, 2013, 1:01am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/16 "2013-07-29T01:01:25Z")
> [@John\_Mace](#): > > Definitely a super-majority, but I’d want it to be a super-majority of the states, not the general electorate. Why? That’s 18th-Century thinking, I should hope we’ve outgrown it. We’re a **nation** now, not a confederation. Even the Senate is an embarrassing anachronism, and don’t get me started on the Electoral College. > [@John\_Mace](#): > > Or, it might be a good idea to have regularly scheduled Constitutional Conventions to deal with this. Say, every 20 years? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 29, 2013, 1:12am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/17 "2013-07-29T01:12:37Z")
> [@BrainGlutton](#): > > Why? That’s 18th-Century thinking, I should hope we’ve outgrown it. We’re a **nation** now, not a confederation. Even the Senate is an embarrassing anachronism, and don’t get me started on the Electoral College. I disagree. > [@](#): > > Say, every 20 years? I was thinking more frequently, like every 5 years. Might was well make it 4 years, and members are elected during presidential years. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [July 29, 2013, 1:45am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/18 "2013-07-29T01:45:19Z")
> [@adaher](#): > > I’d say that the conditions in most prisons violate the 8th amendment. Which is why prison should be reserved only for the most incorrigible and violent. All others, those not likely to repeat their crimes and those who are non-violent, should be given alternative punishments. You could probably make a strong originalist argument for that. The idea of long-term imprisonment being the primary punishment for crime didn’t exist when the Eighth Amendment was enacted. ---
**Author:** ![2sense](https://avatars.discourse-cdn.com/v4/letter/2/e47774/32.png) [@2sense](https://boards.straightdope.com/u/2sense)\ **Post date:** [July 29, 2013, 1:51am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/19 "2013-07-29T01:51:49Z")
I do not count myself as an avid court watcher. I accept that there is much about judicial decision making that I am not aware of. So I perhaps I am wrong about this. But it seems to me that there is far more hand wringing over theories of interpretation than the practice. I am far less concerned how a judge reaches a conclusion about what a constitutional provision means than I am in how they apply those beliefs to actual cases. I think we need far more humble judges who follow the traditional interpretations and far less with the hubris to use their Revealed Rightful Real True Truth to upset the apple cart. Overturning a law enacted by the representatives of the people should be something rarely done by courts and only after much effort to avoid doing so or to limit the effects of their decision. Overturning practices generations old should never ever be done by the courts. Judges shouldn’t take it upon themselves to remake society to fit their beliefs. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [July 29, 2013, 1:52am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/20 "2013-07-29T01:52:23Z")
Easier to amend the Constitution? That way lies Alabama, and madness. (California’s own Prop. 8 showed that our state constitution is too easy to amend. A level of difficulty would have avoided a huge amount of expense and embarrassment.) [Next page](https://boards.straightdope.com/t/originalism-and-textualism/664724.md?page=2)