I don’t too many textualists who believe we should toss out every case back to Marbury v. Madison and start over. Textualists may well quote cases that rest on such dubious conceits as substantive due process simply because, wrongly decided though they may be, their progeny now form the foundation of case law.
Why is textualism a wise approach in the first place, after all? Answer: predictability. Thw law works best when we can be confident that similarly situated persons are treated similarly. Textualism seeks to accomplish this by removing, to the extent feasible, the judge’s desire for a particular outcome and replacing it with the simple meaning of the language the judge works with. It would be strange indeed if an adherent of textualism championed an approach which would destroy far more predicitablity than he gained.
I apologize if this has been mentionmed, but isn’t Newdow arguing that it should not be part of the Chief Justice administering the oath, but that Obama is free to add it in if he so wishes?
And apparently there’s an proposed amicus brief in the matter signed by all fifty state attorneys general and the AG for the US Virgin Islands opposing Newdow’s cause.
Begging the question. You continue to insist on claiming that’s an absolute, unchangeable, objective thing, independent of context at any time, and therefore that any and all reasonable persons would reach the same conclusion.
You do know better - just as you do know that deism does have religious significance. You are certainly entitled to an opinion about what the words mean, but not to claim objectivity in your conclusions superior to that of those who reach different ones. You are also not entitled to dismiss context or justice in your quest for an objective, immutable, obviously-right position.
This does make it clearer. This probably isn’t the thread for an all out discussion of the merits, or lack thereof, of textualism. I just had never thought about ceremonial deism in textualist terms before, and it struck me as completely unsustainable, especially because it almost begs you to use legislative intent to interpret a new law.
Sex and religion seem to bring up huge inconsistencies in the law, which I guess shouldn’t surprise me as they are areas where a judge is most likely to come to the table with preconceived ideas as to how a case should come out, and therefore be most likely to bend the law to suit those ideas.
If I believed that textualism provided the benefits you ascribe to it, I might be persuaded to be a textualist. It’s practical application (including this example), however, makes me doubtful that is going to happen.
Regarding the first, I must have missed something. Has Roberts indicated that he is going to require Obama to say the verbotten words?
Regarding the second, is Warren and Lowery there at the behest of the Government, or Obama? I mean, if Obama wanted to have The Greatful Dead perform a few songs before the swearing in, that’s up to him, right? Was Obama given the priviledge to invite guest speakers?
As I understand it, Obama has asked Roberts to add, “…so help me God,” at the conclusion of the oath, at which point Obama will repeat it.
As I understand it, Newdow’s claim is that their offering prayer at an official government function is per se improper. This claim is (or should be) foreclosed by Marsh v. someone, the Nebraska legislature prayer case.
I didn’t read the whole thing, but early on it uses language that the “so help me God” is not part of the oath, but something said after the oath. It refers to “the wishes of the President-Elect to be prompted ‘so help me God’ once he takes the oath of office.” So it’s Roberts giving the oath, then after it’s done they both say whatever they want, which in this case will likely be “so help me God.”
Sounds like Newdow’s only choice will be to stand an applaud loudly as soon as Obama finishes the phrase “preserve, protect and defend the Constitution of the United States.”
Nowhere near. Free speech/religion cases can be fun to read. Overwhelmingly, though, SCOTUS cases turn on points of law that put lawyers to sleep, let alone those who have no financial incentive to read the damn things.
Pardon me, I am not Bricker. But I will say that personally I would find these arguments worth considering if they weren’t coming from someone who was bickering over something so simple to define as the meaning of the word “oath”.
If I can’t pin you down on that subject, how can we hash anything else out?
I stand by my answer. Some people undoubtedly would add additional attributes, such as “…the only entity…” or “…one entity in three aspects…” but there is no particular consensus on what the more detailed definition might be.
