# Originalist Justices: What the heck are they thinking? **URL:** \ **Category:** Great Debates\ **Created:** [September 14, 2005, 9:01pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664 "2005-09-14T21:01:24Z")\ **Posts on this page:** 20\ **Page:** 10
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 21, 2005, 7:31pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/181 "2005-09-21T19:31:12Z")
> [@Gfactor](#): > > Second, what about the poor schmucks who go to prison while the legislature is voting on other stuff, or hasn’t noticed yet? That problem exists no matter what method we adopt. What about the poor schmucks who went to prison convicted of evidence obtained without a warrant, before _Mapp_ decided to collect lewd books? What about the poor schmucks that were sold into slavery before the Thirteenth Amendment was passed? ANY system suffers the flaw of not incorporating positive changes until the changes are made. > [@](#): > > And the Bill of Rights didn’t originally apply to the states. Indeed, incorporation of the Bill of Rights was not the norm immediately after the 14th Amendment was passed. I guess all of this takes me back to my first objection above. What makes you so sure the legislature would, or could, fix it. If nobody blinked twice, why would you expect the legislature to fix it? The legislature is responsive to the will of the people. It might take longer for the legislature to fix a problem than for a judge to fix a problem. By the same token, it’s easier for the King to declare war than for Congress to do it. The King’s actions are always more efficient; he has only to convince himself that a course of action is necessary. But we have chosen to live governed by elected officials, accepting that they may not act as swiftly as a monarch. We accept this flaw in return for the positive effects of self-governance - namely, we can fire the elected officials and elect new ones relatively frequently. The King, on the other hand, is on his throne for life. > [@](#): > > Unless the textualist happens to be a strict constuctionist. Yes. Or unless he happens to be taking bribes from one side. Or psychotic. Or a robot. Or an alien disguised as a judge. Or a judge’s robe, stuffed with straw. I’m not advocating strict construction. I’m advocating a reasonable reading of the text. Don’t impute to my theory flaws which would arise if my theory isn’t followed. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 21, 2005, 7:33pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/182 "2005-09-21T19:33:29Z")
> [@John Mace](#): > > **GFactor** : I don’t think I can add much to what \*\*Bricker \*\*said. except I would like to re-emphasize the points he made about your hypothetical-- you are saying, let’s assume everything is the same except this one thing. But everything **wouldn’t** be the same. It’s like saying: Let’s assume everything is the same except that Blacks had never been enslaved. Again, everything **wouldn’t** be the same, things would be different in many, many ways. And I repeat my rebuttal. Those things got changed by the court because the legislatures were unresponive. None of them (except presumption of innocence, perhaps) were the original interpretations by the courts. And why should it make a difference? The constitution says what it says. It has said it for a very long time. Legislatures have seen bad decisions and ignored them. Judges who took the textualist approach expecting legislative intervention would have been sorely disappointed. It seems most didn’t expect it. And I think you are micharacterizing my hypothetical. It is certainly a possibility that several new justices will be appointed who do not respect precedent. Thomas doesn’t. Scalia doesn’t that much. So what happens if they decide to overrule precedents establishing these rights? Will the legislature fix the boo-boos? I’d like to see some evidence that that will really happen. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 21, 2005, 7:40pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/183 "2005-09-21T19:40:00Z")
> [@](#): > > Yes. Or unless he happens to be taking bribes from one side. Or psychotic. Or a robot. Or an alien disguised as a judge. Or a judge’s robe, stuffed with straw. [Judge Roberts, the legal automaton.](http://www.washingtonpost.com/wp-dyn/content/article/2005/09/14/AR2005091400626_pf.html) Run for your lives. . . 😃 ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 21, 2005, 8:08pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/184 "2005-09-21T20:08:18Z")
> [@Bricker](#): > > That problem exists no matter what method we adopt. What about the poor schmucks who went to prison convicted of evidence obtained without a warrant, before _Mapp_ decided to collect lewd books? What about the poor schmucks that were sold into slavery before the Thirteenth Amendment was passed? ANY system suffers the flaw of not incorporating positive changes until the changes are made. A very good point. And this specific objection does beg the question. The question is what the proper interpretation of the Constitution is, not what is the most fair result in a single case. > [@](#): > > The legislature is responsive to the will of the people. It might take longer for the legislature to fix a problem than for a judge to fix a problem. By the same token, it’s easier for the King to declare war than for Congress to do it. The King’s actions are always more efficient; he has only to convince himself that a course of action is necessary. But the Bill of Rights was intended to protect us from the legislature’s version of the will of the people. > [@](#): > > But we have chosen to live governed by elected officials, accepting that they may not act as swiftly as a monarch. We accept this flaw in return for the positive effects of self-governance - namely, we can fire the elected officials and elect new ones relatively frequently. The King, on the other hand, is on his throne for life. The Founders didn’t see this as sufficient protection. That is why they wanted the Bill of Rights: They (or some of them anyway) didn’t trust the legislature to protect their rights. > [@](#): > > I’m not advocating strict construction. I’m advocating a reasonable reading of the text. Don’t impute to my theory flaws which would arise if my theory isn’t followed. I know you are not. 😃 ---
**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:** [September 21, 2005, 8:53pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/185 "2005-09-21T20:53:05Z")
> [@Gfactor](#): > > And I repeat my rebuttal. Those things got changed by the court because the legislatures were unresponive. None of them (except presumption of innocence, perhaps) were the original interpretations by the courts. But a strong case can be made that the courts don’t act either until public sentiment is well on the way of shifting. And the courts aren’t immune from error either. But when the courts interpret the constitution to mean “X”, if they make a mistake it takes a constitutional amendment to correct it. I suspect you would be arguing in favor of textualism if the couts had been stacked with conservative activists-- ie, justices who interpreted the constitution along politically conservative lines. That is, not just narrowly, but broadly in order to advance a socially conservative political agenda. > [@](#): > > And why should it make a difference? The constitution says what it says. It has said it for a very long time. Legislatures have seen bad decisions and ignored them. Judges who took the textualist approach expecting legislative intervention would have been sorely disappointed. It seems most didn’t expect it. Why should the judges version be that which wins out? Legitimate arguments can be made by either side that things like the Miranda ruling were good or bad for society as a whole. > [@](#): > > And I think you are micharacterizing my hypothetical. It is certainly a possibility that several new justices will be appointed who do not respect precedent. Thomas doesn’t. Scalia doesn’t that much. So what happens if they decide to overrule precedents establishing these rights? Will the legislature fix the boo-boos? I’d like to see some evidence that that will really happen. You are assuming that there is an objective standard of dertermining what a boo-boo is. Was forced bussing a great soical experiment or a fiasco of left-wing social planning gone wild? Take your pick. But I do agree that a textualist approach which ignores the value of stability in the law is not a good approach. OTOH, I think many of the predictions of social upheaval are themselves exagerated, or can at the very least be ameliorated by a delayed implementation of the overturned precedent. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [September 22, 2005, 12:23am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/186 "2005-09-22T00:23:08Z")
Miranda is a good thing, when it requires tha suspects be told of their legal rights, and/or when it limits an overzealous policeman. It is a bad thing when for example a professional hit man gets off on a Miranda tehnicality, in what otherwise would be an airtight case. Some suspects that get arrested are innocent and should know their rights to remain silent and make one phone call and have legal representation. Some suspects that get arrested are guilty as hell and should not get off because the police didn’t say “mother may I”. It’s a double edged sword. Bussing was a bad thing in my mind. It didn’t fix anything. It was like putting a bandaid on a sucking chest wound. Yeah, it’s a dramatic exaggeration. Delayed or gradual implementation is a good thing. But, just like anyone else, I admit there are times when I will join the chorus of “I want it and I want it now”. On this one you will neve please anybody - that’s a given. There is one thing about gradual implentation - you can work the bugs out a few at a time, instead of being buried under all the bugs at once. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 22, 2005, 3:35am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/187 "2005-09-22T03:35:39Z")
> [@John Mace](#): > > But a strong case can be made that the courts don’t act either until public sentiment is well on the way of shifting. And the courts aren’t immune from error either. 1. I never suggested that courts act in advance of public sentiment. I’m not sure we have a good working definition of the topic. OTOH, legislatures, according to **Bricker** and others, embody public sentiment. So I suppose \*\*Bricker \*\*has to argue that the courts did act in advance of the will of the people. My response to that is that I don’t see that system working. Indeed the Bill of Rights was adopted precisely because the people expected the legislature to get ambitious and start infringing on rights that everyone thought they already had. Therefore, the let-the-legislature-fix-it seems to contradict the very assumptions about legislative behavior that designers of the Bill of Rights entertained. If they had believed that it would be that easy for rights to be created, clarified, or modified, why did they bother with a Bill of Rights in the first place? 1. I never suggested that courts were immune from error. The problem is that they have to answer hard questions. We can expect mistakes. > [@](#): > > But when the courts interpret the constitution to mean “X”, if they make a mistake it takes a constitutional amendment to correct it. Now it is you who wants to ignore the last couple of centuries.\* See,\*\* e.g., \* [\*Brown v. Board of Education \*](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=347&invol=483) (overruling Pless v. Ferguson) [_Mapp v. Ohio_](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=367&invol=643) (overruling Wolf v. Colorado) [_United States v. Dixon_](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=509&invol=688) (“We therefore accept the Government’s invitation to overrule Grady [v. Corbin]”) [_Garcia v. San Antonio Metro. Trans. Auth._](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=469&page=528) (Overruling National League of Cities v. Usery) [_Erie R.R. v. Tompkins_](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=304&invol=64) (Overruling Swift v. Tyson). Courts change their minds all the time. And besides, if it is as easy for the legislature to react to bad precedent as you and \*\*Bricker \*\*claim, then I fail to see why it is any sort of obstacle for unpopular decisions to be reversed by amendment. After all, the legislature reflects the will of the people, right? > [@](#): > > I suspect you would be arguing in favor of textualism if the couts had been stacked with conservative activists-- ie, justices who interpreted the constitution along politically conservative lines. That is, not just narrowly, but broadly in order to advance a socially conservative political agenda. I’m not so sure about that. > [@](#): > > Why should the judges version be that which wins out? I’ll let Chief Justice Marshall answer this one: > [@](#): > > If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. > > It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. > > If then the courts are to regard the constitution; and he constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply. > > Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. > > This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. > > That it thus reduces to nothing what we have deemed the greatest improvement on political institutions-a written constitution, would of itself be sufficient, in America where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection. > > The judicial power of the United States is extended to all cases arising under the constitution. Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? > > This is too extravagant to be maintained. > **[FindLaw's United States Supreme Court case and opinions.](https://caselaw.findlaw.com/us-supreme-court/5/137.html)** > > FindLaw's searchable database of United States Supreme Court decisions since In constitutional litigation, each party claims that the Constitution entitles them to some relief. The Court’s job is to decide those disputes. In order to decide the disputes, the Court has to interpret the Constitution. That makes the Court, under our system, the final arbiter. Of course, the Constitution could be amended to modify that system. > [@](#): > > Legitimate arguments can be made by either side that things like the Miranda ruling were good or bad for society as a whole. Legitimate arguments can also be made about whether The Patriot Act is good or bad for society as a whole, or whether that is even the relevant question in either case. Legitimate arguments can also be made about whether Congress exceeded its authority or infringed civil rights when it adopted the act. Congress has the first whack at the apple on these issues. The Supreme Court only gets to decide the last one. But the way the system is built right now, what the Court’s decision is the last one. > [@](#): > > You are assuming that there is an objective standard of dertermining what a boo-boo is. No. I’m simply responding to **Bricker’s** claim that if the Court actually applied the text of the Constitution to the statute that I suggested, the legislature would step in and adopt statutes [or amendments?] to repair the damage. I think that the evidence is tha they won’t. > [@](#): > > Was forced bussing a great soical experiment or a fiasco of left-wing social planning gone wild? Take your pick. The issue isn’t whether I liked it or not, nor is it whether it was good policy: The issue is whether it was constitutionally mandated. The Court said it was. > [@](#): > > But I do agree that a textualist approach which ignores the value of stability in the law is not a good approach. So the wrong answer becomes right, even though the constitution is against it? Where in the text of the Constitution do you find the doctrine of stare decisis? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 22, 2005, 3:40am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/188 "2005-09-22T03:40:38Z")
Here is a cool compilation of supreme court cases overruling prior supreme court cases. [http://www.gpoaccess.gov/constitution/pdf/con041.pdf](http://www.gpoaccess.gov/constitution/pdf/con041.pdf) ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 26, 2005, 2:03am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/189 "2005-09-26T02:03:15Z")
This is a good [article](http://www.randybarnett.com/pdf/trumpingprecedent.pdf) on the uncomfortable relationship between originalism (including original meaning textualism) and precedent in constitutional cases. The author suggests that accepting originalism requires one to reject precedent. He then argues that “it is not incompatible with original public meaning originalism to adhere to precedent in cases involving (a) nonconstitutional issues, (b) matters of constitutional construction, © detrimental reliance by identifiable individuals, (d) epistemic concerns about the correctness of originalist claims, and perhaps also (e) where the text was originally ambiguous.” Interesting argument. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 26, 2005, 3:07pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/190 "2005-09-26T15:07:13Z")
> [@Gfactor](#): > > > [@John Mace](#): > > > > I suspect you would be arguing in favor of textualism if the couts had been stacked with conservative activists-- ie, justices who interpreted the constitution along politically conservative lines. That is, not just narrowly, but broadly in order to advance a socially conservative political agenda. > > I’m not so sure about that. Really? I can tell you with as much certainty as I can morally muster that I would be touting textualism regardless of the courts’ ideological sway – because as long as the courts practice textualism, the effect of individual judges’ political leanings is sharply minimized. But let’s explore your answer a little bit. The courts are strongly activist, in our Example Brave New World, but the judges are socially and economically conservative, so we see a lot of _Lochner_ type rulings – no minimum wage, for example, as it’s violative of a the right to contract. No abortion, because the penumbra of the Fourteenth Amendment clearly offers a shield to ALL life, born and unborn. Massachusett’s approval of same-sex marriage violates the federal constitution Due Process and Equal Protection guarantees, because the court failed to stay its decision for two years to give the legislature time to react. Etc, etc. And you’re saying you’d be in there, swinging away strongly on the wisdom of letting these judges exercise their honest, best judgement as they’ve been doing? I’m sorry… I’m having trouble buying that. Are you SURE? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 26, 2005, 3:37pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/191 "2005-09-26T15:37:45Z")
> [@Bricker](#): > > I’m sorry… I’m having trouble buying that. Are you SURE? I just had the record read back to me. I said I wasn’t sure. I’ll stick with that answer for now. 😃 Serious answer after lunch. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [September 26, 2005, 4:16pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/192 "2005-09-26T16:16:10Z")
> [@Bricker](#): > > No abortion, because the penumbra of the Fourteenth Amendment clearly offers a shield to ALL life, born and unborn. Surely you can’t really mean ALL life. Reading over the Constitution, I can’t find any text that refers to anything but those “persons” already born when taken in context. It looks to me like applying the text as written to a fetus is adding a meaning that isn’t there. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 26, 2005, 4:31pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/193 "2005-09-26T16:31:25Z")
> [@David Simmons](#): > > Surely you can’t really mean ALL life. > > Reading over the Constitution, I can’t find any text that refers to anything but those “persons” already born when taken in context. It looks to me like applying the text as written to a fetus is adding a meaning that isn’t there. Um… yeah. That’s why the judges are: > [@](#): > > …strongly activist, in our Example Brave New World, but the judges are socially and economically conservative… That would be an example of a strongly activist decision – reading a right into the text that simply wasn’t there – and a strongly socially conservative move as well. In my example. Not conduct I’m supporting. It’s a hypothetical. A conservative activist hypothetical. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 26, 2005, 6:03pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/194 "2005-09-26T18:03:31Z")
> [@Bricker](#): > > Really? > > I can tell you with as much certainty as I can morally muster that I would be touting textualism regardless of the courts’ ideological sway – because as long as the courts practice textualism, the effect of individual judges’ political leanings is sharply minimized. This, I think, is where we part company. I just don’t see textualism as a coherent system of interpretation. That doesn’t mean I don’t think judges should look at the constitution or try to do what it requires. I just don’t think original meaning textualism is the way to do it. So picturing myself advocating textualism is similar to picturing myself yelling “Hoopla!!! Oink Oink!!” or “Malkovich Malkovich Malkovich!” I can hear the words, but I just don’t know what they mean. > [@](#): > > But let’s explore your answer a little bit. The courts are strongly activist, in our Example Brave New World, but the judges are socially and economically conservative, so we see a lot of _Lochner_ type rulings – no minimum wage, for example, as it’s violative of a the right to contract. No abortion, because the penumbra of the Fourteenth Amendment clearly offers a shield to ALL life, born and unborn. And apparently has applied the 14th (by judicial fiat, textual legerdemain, reference to some fictive original intent, or some other means) private actors, as well as state actors. > [@](#): > > Massachusett’s approval of same-sex marriage violates the federal constitution Due Process and Equal Protection guarantees, because the court failed to stay its decision for two years to give the legislature time to react. Or maybe decided a recount on a presidential election should be stayed until it is too late for it to be completed by an imaginary deadline? > [@](#): > > And you’re saying you’d be in there, swinging away strongly on the wisdom of letting these judges exercise their honest, best judgement as they’ve been doing? 1. What else is there? The Constitution is only words. Justices have lifetime tenure. We can only hope that judges will do their best to decide cases. No matter what interpretive theory they claim to apply, we risk disingenuity, stupidity, bias, and just plain mistakes. 2. You seem to assume that non-original-meaning-texutualist theories advocate ignoring the Constitution. Most interpretive theories, in fact, are about the proper approach to determining the meaning of the text. Some would limit the interpretive materials to the intention of the framers (or ratifiers, or those who voted for them), others to the actual meaning of the words at the time they were written, others to the meaning assigned to the words at the time they were written. Others look at more varied sources of meaning. That’s really what this debate is about, isn’t it? To continue with soon-to-be-Justice Roberts’s analogy, the judge is like a referee. He’s got to decide the case based on the rules. There are no games where the referee has truly unbridled discretion (except for The Apprentice, Rockstar: INXS, and similar reality-type games). Unfortunatley, in each case, the Judge is being called upon to decide between conflicting claims of right. The judge has to decide for one party or the other. This requires judgment. If it didn’t we wouldn’t need judges. I don’t see any way of escaping that. The question, then, is “what should the judge consider as the judge makes a decision?” As I pointed out above, few non-textualists advocate ignoring the text, so I, as a non-textualist, could certainly make text-based arguments without abandoning my interpretive theory. Not everyone who makes textual arguments is an original meaning textualist. 1. What would I do in such a situation? I guess, I’m not sure about the treatment of precedent in this Brave New World, nor do I know which cases have been decided. I would unabashedly refer to specific provisions of the Constitution in my arguments. That doesn’t make me a textualist. I would probably argue based on precedent, assuming there was favorable precedent. Would I argue that the decisions contradicted the original meaning of various constitutional provisions? As I said before, I’m not so sure that I would. Well, that is a start. I have more to add, but work beckons. To be continued. . . ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 27, 2005, 1:09am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/195 "2005-09-27T01:09:47Z")
> [@Bricker](#): > > The legislature is responsive to the will of the people. It might take longer for the legislature to fix a problem than for a judge to fix a problem. By the same token, it’s easier for the King to declare war than for Congress to do it. The King’s actions are always more efficient; he has only to convince himself that a course of action is necessary. I wanted to address this point in more detail because it seems to be the basis of your position: You seem to claim that the only legitimate political procedure is one that requires all important decisions to be the one favored by a majority or plurality of the people. Dworkin calls this the majoritarian premise. The majoritarian premise is that in cases where an individual right is upheld against the will of the majority, even if the exception is justified, "something morally regrettable, a moral cost has been paid. The premise supposes . . . that it is \*always \*unfair when a political majority is not allowed to have its way, so that even when there are strong enough countervailing reasons to justify this, the unfairness remains. " Ronald Dworkin, Freedom’s Law 16-17 (1996) (emphasis in original). This is a very primitive understanding of democracy and democratic values. I reject it. Democracy is not the same as majority rule. If it was, the Bill of Rights would not make sense. If the greatest good is whatever the most people think it is, then whatever they decide is, by definition, good. And if whatever they decide is good, then limiting their decisions is bad. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 27, 2005, 4:01am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/196 "2005-09-27T04:01:33Z")
> [@John Mace](#): > > Scalia does believe that one must look beyond the simple rightness or wrongness of a given decision before deciding whether or not it should be overturned. One must look at whether a ruling to overturn would do more harm than good. He views it as a pragmatic exception to his judicial philosophy-- that the law must not only be “right” but that it must not swing wildly from one to extreme to another. > [@](#): > > Scalia does believe that one must look beyond the simple rightness or wrongness of a given decision before deciding whether or not it should be overturned. One must look at whether a ruling to overturn would do more harm than good. He views it as a pragmatic exception to his judicial philosophy-- that the law must not only be “right” but that it must not swing wildly from one to extreme to another. Here is what he says in A Matter of Interpretation (1997): > [@](#): > > Professor Tribe appears to believe that there is something uniquely inappropriate about the acceptance of \*stare decisis \* by an originalist. Surely not. The whole function of the doctrine is to make us say that what is false under proper analysis must nonetheless be true, all in the interest of stability. It is a compromise of all philosophies of interpretation, his no less than mine. The demand that originalists alone, “be true to their lights” and foreswear \*stare decisis \* is essentially a demand that they alone render their methodology so disruptive of the established state of things that it will be useful only as an academic exercise and not as a workable prescription for judicial governance. Professor Tribe says that my assumption of the power to invoke, or not invoke, \*stare decisis \*leaves me "open to the charge of importing [my] own views and values into the law, which my mode of interpretation was supposed to guard against. I cannot deny that _stare decisis_ affords some opportunity for arbitrariness–though I attempt to constrain my own use of the doctrine by consistent rules. In any event, I have never claimed that originalism inoculates against willfulness; only that (unlike aspirationalism) it does not cater to it. And finally, Professor Tribe’s concern over the fact that whatever rules I use for _stare decisis_ are not to be found in the original meaning of the Constitution is simply inexplicable. As I have explained, _stare decisis_ is not _part of_ my originalist philosophy; it is a pragmatic \*exception \*to it. (Emphasis and bracketing in original) (footnote omitted). 1. Scalia is wrong that “It is a compromise of all philosohies of interpretation” is simply wrong. An interpretive philosophy like Dworkin’s treats precedent as part of the interpretive materials to be considered. Instead of a liability, precedent is an asset to Dworkin’s philosophy. 2. Scalia fails to explain why, if he believes textualism is required by democratic principles, he is entitled to make pragmatic exceptions. Nor has he explained how he distinguishes this pragmatic exception from those he rails against. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [September 27, 2005, 4:17am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/197 "2005-09-27T04:17:44Z")
> [@Bricker](#): > > Um… yeah. > > That’s why the judges are: > > That would be an example of a strongly activist decision – reading a right into the text that simply wasn’t there – and a strongly socially conservative move as well. > > In my example. Not conduct I’m supporting. It’s a hypothetical. A conservative activist hypothetical. OK, it was only a “what if” and you don’t support it. Well then, it this isn’t a justification for the states banning early abortions what is? I think the protection of the Constitution was extended to people against a state government before Roe v. Wade. So the 9th Amendment says that other rights not enumerated shall not be denied. It seems to me then that states can only ban early abortion in case a compelling public interest. It seems to me that the onus is on the state government to defend such a ban on the grounds that it is necessary. > [@John Mace](#): > > > [@](#): > > > > As I have explained, stare decisis is not part of my originalist philosophy; it is a pragmatic exception to it. Did Scalia really write this? I thought he definitely was not an originalist but rather was a textualist which supposedly was a different breed of cat. 😕 ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 27, 2005, 5:18am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/198 "2005-09-27T05:18:14Z")
> [@David Simmons](#): > > Did Scalia really write this? I thought he definitely was not an originalist but rather was a textualist which supposedly was a different breed of cat. 😕 On page 140. He sees textualism as a form of originalism. Originalists look to the birth of the Constitution for their interpretive materials. Within textualism there are the original meaning and strict constructionist schools. Scalia is an original meaning guy. A separate school within originalism is original intent. They look not to the words, but to the expressed intention of the creators of the Constitution. He distinguishes originalism from the current meaning or Living Constitution theory, which he says, “affirms the existence of what is called The Living Constitution, a body of law that (ulike normal statutes) grows and changes from age to age, in order to meet the needs of a changing society.” p. 38. The short answer is that once can be an originalist and a textualist at the same time. ---
**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:** [September 27, 2005, 5:19am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/199 "2005-09-27T05:19:18Z")
> [@David Simmons](#): > > Did Scalia really write this? I thought he definitely was not an originalist but rather was a textualist which supposedly was a different breed of cat. 😕 Let me address this one point, and return to the others later. After going back over Scalia’s writings, I’ve come to the conclusion that I have oversimplified (and therefore incorrectly represented) Scalia’s judicial philosophy. But that is because we are trying to map a two dimensional (at least) thing into a one dimensional description. If we catalogued judicial philosophies using the _Genus sp._ model, Scalia would be an _Originalus textualensis_. He belongs to the genus _Originalus_, in that he thinks that laws should not be interpreted beyond the original intent of the framers of that law. To take a topical example, if marriage laws were framed in a time when marriage was assumed to be one man and one woman, that instituion doesn’t become automatically open to same sex couples just because the meaning of marriage may have changed over time (a debatable observation anyway). If the words change meaning, then laws must be explicitly changed to reflect those new meanings. He belongs to the species \*textualensis \*in that he thinks that the best way to determine the original intent is to stick to the text of the law (or phrasiology of the constitution) as narrowly as is reasonable given what we know about the original intent of the framers. If the text is unlcear, or if the meanings of the words may have changed over time, then it might be necessary to look at historical texts to determine what the wording meant at the time. But (and this is a big BUT), that does that mean if John Smith drafted the law that we give extra weight to John Smith’s writings. John Smith may have drafted the law, but dozens of other people voted on the law, and we shoudl consider their interprations no less than Smith’s. Context and historical meaning are important, in as much as they can be understood, and reasonably interpreted. If the laws do not encompass a modern interpretation, then the legislature can remedy that. This is to be distinguished from those justices belonging to _Originalus strict-constructionalensis_, who would look strictly at the words and include no outside influences at all. If it says “speach and the press”, it means only “speach and the press” and not “radio broadcasts” or “private letters written between individuals”. Context is not meaningful, only the exact literal reading of the words themselves. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [September 27, 2005, 5:41am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/200 "2005-09-27T05:41:09Z")
> [@Gfactor](#): > > The short answer is that once can be an originalist and a textualist at the same time. Oh sure. My post was a little poke at **John Mace** who has already given a very satisfactory answer. [Previous page](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664.md?page=9) [Next page](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664.md?page=11)