When I first came across the concept of constitutional originalism it seemed pretty straightforward. Things should be determined according to their original meaning. Raised a good Evangelical I am familiar with similar issues in regards to scripture. Authorial intent is what grounds meaning. What Paul meant in the first century Greco-Roman or Mediterranean context is what determines how we are to understand the Letter to Phillipi or Galatia etc.
But then I came across the concept of Textualism…and this seemed absurd. How can texts mean things outside of what their authors intend? How is that even Originalist? I knew loading SCOTUS with a bunch of Papists was a bad idea. ;)
But everyone, including his detractors, were convinced that Tony Scalia was a brilliant legal mind. And he was the poster boy for Textualist Originalism. So I knew there must be something going on here, even if it was wrong it must be a very interesting error. So I began reading the his excellent book “A Matter of Interpretation”…and within 5 or so paragraphs I realized I was a textualist.
Legal texts are markedly different from all other types of writing. The reason being that Laws need to be dynamic. And by dynamic I mean powerful. They must have teeth to protect rights and punish transgressors. This means that authorial intent cannot be the fundamental point of hermeneutical contention. It is a source of information. But the simple fact is that “The Federalist Papers” are not part of our laws, neither are arguments presented to congress. These are all sources of meaning used to discover the intentions of the founders and what our senators and representatives wanted to accomplish by passing this or that law. But in the end the most important thing about a law is the law itself.
Roe V. Wade (which is a common “law” not a statutory law) was not supposed to lead to unrestricted access to abortion throughout pregnancy but intentions are not legal decisions. Legal decisions are legal decisions. This seems so obvious that its almost boring. Only a law is a law. And ultimately US citizens are accountable to our laws not the private intentions of our lawmakers. This is a really good thing. It means that the government cannot act in ways that are arbitrary and capricious, at least not legally. We all ultimately have recourse to the laws. Not the good or bad intentions of persons living or dead.
What if legislation was passed today that included Covfefe as one of its fundamental clauses.
“Anyone who Covfefes may be imprisoned…”
How would we apply such a law? Call the President every time we wanted to jail someone and ask “Is my neighbor’s dog pooping on my lawn considered Covfefe?” And he thinks about it for a moment. Then he says “Yes. Oh yes. That is a tremendous example of what I meant by Covfefe. That is the best and really really great and best example I have come across of Covfefe.” So my neighbor goes to jail. What happens when Trump changes his mind about what Covfefe mean? The horrible possibilities here are endless.
Of course the reply is “that is a straw man! We’re discussing real public words not private nonsense words!” And that is true. But it demonstrates the point that what is most important in a law is the actual text itself. This should be the grounds for potential bi partizan unity over how to interpret the constitution because we should all be able to become textualists. I have not heard a single good argument against textualism. I’ve also never heard a good argument for non originalism but the regressive left and even the normal democrats seem to have a mental block regarding their love for the living document theory. Textualism should be the guiding principle for those who desperately want to promulgate a living constitution. I’m not naive enough to think that this approach will work but it should!
There is no rational reason to reject the text of a law as the substance of that law. The reason that regressives refuse this reasonable “compromise” is because they can’t use laws for whatever political purposes the day demands. As Charles Murray brilliantly pointed out in his book “By the People” this is indiscernible from lawlessness. Which is almost exactly what it literally means to reject textualism. If you reject the statute as the basis for interpreting that statute then what exactly is the law you are dealing with? The law becomes imaginary and loses its power to govern and protect us. By rejecting the words of a statute you are rejecting the statute itself and that means you are rejecting the law.
Scalia was truly a brilliant Judge. I pray that God brings us more like him. Gorsuch could potentially become an even greater Justice. He has already made voting for Trump less distasteful.