Textualism is a joke. It's a classic "appeal to authority" where the authority can't be questioned. it's like religion - we've had the same documents for 2k years, and people still can't agree. when some yahoo claims they are privy to the one true will of God, thats time to run away. This is before the fact that the people who wrote the actual documents had violent disagreement about what the words actually meant, so people just end up choosing the version they like best. In many instances, particular phrasing was chosen precisely because two groups of authors who disagreed could impose their own, vastly ddifferent interpretations on what the words meant. The truly sad instances are where people fool themselves, and don't realise how much of themselves they are imposing on the interpretation. It is pure hubris to think you alone have the direct hotline to divine truth.
My problem with the Judicial Branch legislating is the the constitution ceases to be laws and becomes guidelines subject to the bias of the judge. When that happens we end up with laws that are applied unevenly with no vehicle to challenge those rulings. That’s why Textualist SCJs are important and why evolution of the Constitution should be left to the Legislative Branch of the Government.
You don't even need to explain. EVERYONE should have a problem with ANY branch overstepping their bounds. The executive branch should execute. The legislative branch should legislate. The judicial branch should adjudicate. Each branch was set up for a reason, and with a specific role and purpose. The judicial branch is supposed to be the check on the others...not their replacement.
I'm not suggesting that at all. I'm suggesting that the very concept of a "man" written by the Founders is not what we think of when we think of that today. Or who is deserving of fundamental rights.
Unless the judicial branch is supposed to interpret the Constitution as a textualist considering Founders Intent. Not much can change if the words still mean what they did when they were written.
Not at all what I'm saying. I don't reject textualism outright...I don't reject Founders Intent outright...I'm way too pragmatic for that. But I don't believe the Constitution is the words in red from Jesus. I do believe it allows for a lot of flexibility though....as it has for the last 200 plus years.
So just to make sure I'm clear...the only evolution that can happen to the Constitution (as you see it) is through amendment? Do you recognize that you and I could read the very same words and completely disagree on their meaning? Because my whole career is pretty much about that. Two parties to a contract can completely disagree on what the words they both agreed to actually mean...and neither one is lying. Happens all the time.
Then it’s the elected legislative branch’s responsibility to amend or revise the Constitution. Do you really want a small unelected group of people with all the power changing the rules as they see fit?
Yes and it’s the Judicials branch to interpret the original intent of the words they are interpreting at the time they were written. Their job is not to create knew meaning because that steps outside the realm of their authority. The constitution can not evolve outside the rules of article 5 of the constitution. Revisions or amendments can take place in Congress or a Convention of the States.
Im not going to get caught up in the definition of words. First, the notion that the framers of the constitution were not smart enough to see 200 years in the future is nonsense. They understood their limits. They also understood how 50.00001% of the population can unravel sound law and start catastrophic changes. The constitution is a living document in the sense that it can be change. All it takes is 2/3 of Congress and 3/4 of States to approve. We do NOT have a Living Constitution, one that can be loosely interpreted depending on the mood of the people at a given time period. 2/3 Congress and 3/4 States are not going to put black people back in chains. Or take away black votes. Or women votes. Or put the rich white man back in power. Secondly, I believe in states rights. If the SCOTUS is consistently voting 5-4 on issues, we should probably steer clear of SCOTUS legislating and let states choose. Its all great when your team is leading the charge and passing legislation in your favor when they are in power, but then its suddenly a problem when the power shifts and the next set of judges start undoing the previous laws (which should have never been implemented) and also passing legislation that you may find offensive. I want the ability to choose my paradise. I dont want to live in your paradise that dictates EVERYONE should follow your set of rules. Most of us are complaining about Trump overstepping his boundaries. However this behavior is set by decades of precedence from previous presidents who all though the Constitution was a living constitution. It was all fun and games when the SCOTUS said we all HAD to buy insurance from a private company, but its not so fun now that someone else is enforcing rules that we dont like. However this type of insane behavior will not stop. Both sides will double down on their stupidity. This is coming from someone who thinks we need more constitutional amendments to protect rights. While we are too worried about gays getting the right to marry or someone might not get to abort a baby, too many peoples voting rights are trampled upon. Too many people are getting killed with guns by people who should not be allowed to have them. Too many people are strapped in debt because the banks make the rules. We are getting closer and closer to becoming a police state, dictated by ignorant drug laws or frivolous felonies. Im sure we all could go on and on how we ALL are taken advantage by both political parties, but instead focus on our differences.
Yeah it is like the right wingers blathering about "legislating from the bench" or pretending that they believe in "states rights" when they pass a law in Austin forbidding a city in Texas from prohibiting fracking like they did when Denton did so.
You're arguing semantics. Interpretations of the Constitution are different from generation to generation. The judiciary interprets the Constitution to check legislation. I get that sometimes the interpretation of the Constitution looks like "legislation from the bench" to you and others.
If there were no disagreements over the meaning, we wouldn't need judges, or even lawyers. The point is they should be looking at what was actually written, and try to imply intent (intent is something that should be part of every law, but isn't. So much easier to infer if the writers just f'ing wrote it into the law).
I'm suggesting you need to be careful about intent when about half of those who signed off on the Constitution were slave owners...who had a very different definition for "man" than we find palatable today. If we're to look to intent of the authors only...without allowing the words to breathe...we're in trouble. It can't be just read the words and ask yourself what they meant 200 plus years ago...that keeps us in a pretty dark place.
