# 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:** 2
**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, 2:23am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/21 "2013-07-29T02:23:14Z")
> [@Trinopus](#): > > 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.) It required only a simple majority. I am not proposing a simple majority to amend the constitution. But if you don’t want to simplify that process, no more griping when SCOTUS hands down a decision you don’t like. Talk about an easy way to amend!! ---
**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, 2:41am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/22 "2013-07-29T02:41:09Z")
> [@Little\_Nemo](#): > > 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. Of course, the punishments they did use were often pretty harsh. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [July 29, 2013, 2:48am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/23 "2013-07-29T02:48:39Z")
> [@John\_Mace](#): > > 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. I’m not sure how you make it easier to amend without eroding state sovereignty. The Constitution functions sort of as a treaty. The vast majority of states have to approve any changes. I guess you could make the House and Senate votes easier, but anything less than a 38-state requirement to ratify the changes would fundamentally change the nature of our federalist state. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [July 29, 2013, 2:50am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/24 "2013-07-29T02:50:07Z")
> [@BrainGlutton](#): > > Of course, the punishments they did use were often pretty harsh. I’d rather do the stockade, or get caned, and be free the next day, then to spend years in prison. Or even weeks. I knew someone who was in prison for just a week. He avoided anything really bad happening to him, but he probably wouldn’t have been able to avoid it for a second week. A caning would be far less awful than some of the things that would have happened had he stayed longer. ---
**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, 3:00am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/25 "2013-07-29T03:00:29Z")
> [@adaher](#): > > I’d rather do the stockade, or get caned, and be free the next day, then to spend years in prison. Or even weeks. Don’t forget, if you’re in the stocks or the pillory, anyone with a grudge can throw rocks at you. The 18th-C LEOs won’t stop them, it’s part of the punishment. You might lose an eye, or even die. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [July 29, 2013, 3:04am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/26 "2013-07-29T03:04:42Z")
Of course we’d modify that for the modern age.🙂 But ridicule and shame go a long way towards deterring crime. Put people in stockades, but protect them while they are in there. Jeering, okay, throwing things, not okay. ---
**Author:** ![LawMonkey](https://avatars.discourse-cdn.com/v4/letter/l/d6d6ee/32.png) [@LawMonkey](https://boards.straightdope.com/u/LawMonkey)\ **Post date:** [July 29, 2013, 3:10am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/27 "2013-07-29T03:10:43Z")
> [@IceQube](#): > > Wait what happened? Could you elaborate? Tangential to the main point of this thread, except in that their disagreement didn’t really have that much to do in a direct way with differences of thought/policy. This just happened to come up on the Jefferson Hour podcast I listened to earlier. Basically, Jefferson was of the opinion that Alexander Hamilton was the devil (if I exaggerate, I do so only slightly) and that he’d come to have too much influence over Washington. Because this couldn’t be because Washington, as near a god made flesh as ever the American republic has had, simply agreed with Hamilton over Jefferson, Jefferson came to the conclusion that Washington was going a bit soft in the head. He made a snide remark in a letter\* that referred to this. The letter was never intended for publication, but the recipient admired Jefferson’s turn of phrase, so he made it public. This got back around to Washington, and harmed his friendship with Jefferson in a very serious way. - I can’t find the damned quote right now. Roughly, it was something about how someone who had been “a Samson in the field and a Solomon in the temple” had had his “hair shorn”. Never referenced Washington directly, but fairly obviously about Washington and Hamilton. ---
**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, 3:15am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/28 "2013-07-29T03:15:08Z")
> [@adaher](#): > > I’m not sure how you make it easier to amend without eroding state sovereignty. The Constitution functions sort of as a treaty. The vast majority of states have to approve any changes. I guess you could make the House and Senate votes easier, but anything less than a 38-state requirement to ratify the changes would fundamentally change the nature of our federalist state. Post 15, please. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [July 29, 2013, 3:25am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/29 "2013-07-29T03:25:20Z")
Textualism. Original thinking can be considered, but shouldn’t dominate a literal reading in the modern context. It should be a little murky though, and kept that way. More important than easier amendments would be more turnover in the court by having a fixed length term for the justices and appointing the Chief Justice based on seniority. I’m leery of a simpler amendment process, there have been a lot of dumb amendments proposed. ---
**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, 4:04am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/30 "2013-07-29T04:04:37Z")
> [@John\_Mace](#): > > I disagree. Why? > [@John\_Mace](#): > > I was thinking more frequently, like every 5 years. Might was well make it 4 years, and members are elected during presidential years. Well, I’m thinking of a “Constitutional Convention” as a thing empowered not merely to propose amendments, but (like the first one was, at least after the fact) to scrap the whole Constitution and write a new one. As Jefferson once remarked, you cannot expect a man to wear a boy’s jacket. We wouldn’t want to do that every 5 years, that’s much too much. But, if we did it every 20 years – and if the Convention (unlike the first one) were elected – then every generation would have its chance, several times, to rewrite the American social contract from top to bottom. ---
**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, 4:12am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/31 "2013-07-29T04:12:03Z")
> [@adaher](#): > > The Constitution functions sort of as a treaty. No, it doesn’t. ---
**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, 4:13am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/32 "2013-07-29T04:13:08Z")
> [@adaher](#): > > I guess you could make the House and Senate votes easier, but anything less than a 38-state requirement to ratify the changes would fundamentally change the nature of our federalist state. And so much the better. ---
**Author:** ![Llama\_Llogophile](https://avatars.discourse-cdn.com/v4/letter/l/49beb7/32.png) [@Llama\_Llogophile](https://boards.straightdope.com/u/Llama_Llogophile)\ **Post date:** [July 29, 2013, 4:30am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/33 "2013-07-29T04:30:11Z")
Not knowing much about the subleties of constitutional law, I once asked a law professor friend to explain the basis of Scalia’s legal reasoning to me. He talked for a few minutes about originalism and textualism and then I asked this follow-up: Couldn’t two intelligent, principled people read the same law text and interpret it differently? Even if they had a good idea of the original intent? He thought for a moment and then replied, “Well… Scalia would say no.” I’ve been rather dubious about these concepts ever since. ---
**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, 4:49am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/34 "2013-07-29T04:49:46Z")
> [@adaher](#): > > The Constitution functions sort of as a treaty. The Constitution, like any such worthy of the name, is the Supreme Law of the Land and **not** a treaty. ---
**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, 5:31am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/35 "2013-07-29T05:31:09Z")
> [@2sense](#): > > 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. The problem is supreme court justices can’t avoid it. Their job is to make decisions. And they don’t get easy decisions. The obvious stuff doesn’t make it to the supreme court. They get the tough calls. Ask if the President can shut down the New York Times and the answer is obvious: no, because the Constitution protects freedom of the press. But ask if a high school principal can shut down a school newspaper and the answer is: ummmm…maybe? The only thing clear about that question is that there’s no clear answer in the Constitution. So the justices would have to decide and ultimately it’s going to come down to their opinions. Sure they can find precedents and principles that will say the answer is no. But they can also find precedents and principles that will say the answer is yes. Which precedents and principles that feel is more relevant to this case is a matter of opinion. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [July 29, 2013, 5:36am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/36 "2013-07-29T05:36:50Z")
> [@The\_Second\_Stone](#): > > …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. I did not know this about Dredd Scott. Ignorance fought. > [@](#): > > 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. Lets see him vote in favor of overturning the partial birth abortion. > [@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. Even the senate has 60%. The constitution is the thing that protects us from tyrannies of the majority. I would be ok with making it eaasier to amend if we hadn’t already had done it 17 times (12 times in the last 100 years). > [@John\_Mace](#): > > 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. Regularly scheduled constitutional conventions? Aren’t regularly scheduled elections enough? Are you so convinced that inertia prevents change that you wold grease the skids to changing the greatest bulwark of freedom the world has ever seen? ---
**Author:** ![IceQube](https://avatars.discourse-cdn.com/v4/letter/i/dfb087/32.png) [@IceQube](https://boards.straightdope.com/u/IceQube)\ **Post date:** [July 29, 2013, 6:03am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/37 "2013-07-29T06:03:47Z")
> [@John\_Mace](#): > > 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! I stand corrected. > [@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. > [@Clarence Thomas](#): > > a use of force which causes only insignificant harm to a prisoner is not cruel and unusual punishment. Note that this harm involved a broken dental plate and loosened teeth suffered by a handcuffed prisoner at the hands of a prison guard. > [@The\_Second\_Stone](#): > > 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. You forgot the word Justice and its accompanying scare quotes. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [July 29, 2013, 11:29am UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/38 "2013-07-29T11:29:26Z")
> [@BrainGlutton](#): > > The Constitution, like any such worthy of the name, is the Supreme Law of the Land and **not** a treaty. It’s not a treaty, it just functions like one. If the EU ever forms a single federal state, those documents which are now treaties will be the supreme law of that country as well. ---
**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, 2:13pm UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/39 "2013-07-29T14:13:53Z")
> [@IceQube](#): > > I stand corrected. Kudos. I wish more people would accept corrections so readily and pithily! No excuses, not but… but… but. OK, now that your only argument against originalism has been found to be invalid, do you have a better one? But please, keep in mind that originalism and textualism are not quite the same thing. ---
**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, 2:16pm UTC](https://boards.straightdope.com/t/originalism-and-textualism/664724/40 "2013-07-29T14:16:02Z")
> [@Llama\_Llogophile](#): > > Not knowing much about the subleties of constitutional law, I once asked a law professor friend to explain the basis of Scalia’s legal reasoning to me. He talked for a few minutes about originalism and textualism and then I asked this follow-up: > > Couldn’t two intelligent, principled people read the same law text and interpret it differently? Even if they had a good idea of the original intent? > > He thought for a moment and then replied, “Well… Scalia would say no.” > > I’ve been rather dubious about these concepts ever since. At any rate it leaves one dubious about Scalia’s legal intellect. [Previous page](https://boards.straightdope.com/t/originalism-and-textualism/664724.md?page=1) [Next page](https://boards.straightdope.com/t/originalism-and-textualism/664724.md?page=3)