I just finished reading a wonderful book called : A Matter of Interpretation (by Antonin Scalia). It presents Scalia’s view of how courts ought to interpret the Constitution. It also includes a response from those that support and oppose his view. (Wood and Glendon in support and Tribe and Dworkin who oppose). It finishes with a rebuttal by Scalia.

It got me thinking that this topic would be a good one to debate for several reasons. Not only do the two views on what is proper constitutional interpretation break down along political lines, there is a lot of confusion about all of it. Any discussion usually breaks down into partisan bickering over judicial activism. I think it is worth it to try and explore the topic to try to understand it a little better.

Laurence Tribe writes:



For purposes of the debate it breaks down into two camps:

Original meaning or textual interpretation: Scalia writes:



Current Meaning or the Living Constitution

In responding to Scalia, Tribe describes the Living Constitution approach as:




Textualists assert that their mode of judicial interpretation constitutions “judging”, where as the Living Constitution mode of judicial interpretation is disguised as judging.

Question for Debate:

(1) Is Textualism the proper mode of judicial interpretation/review? Why or why not?
(2) Is the “Living Constitution” approach the proper mode of judicial interpretation/review? Why or why not?

You know, you've engaged here in the same sort of dubious reasoning here that you have brought to every other legal/constitutional thread on this site.





Either you missed something, or Antonin Scalia is a lot dumber than people have made him out to be because the gap between these two is not so great as you represent. Where I take issue with what you have written is your delightful use of subjectives; which you claim elsewhere to abhor. By use of the word fair in the first post, you (and Scalia) have given yourself what essentially amounts to the 'moral high ground' of result-oriented reasoning.

Both scenarious you describe feature transformative readings of the Constitution. And so long as the word "fair" is present, BOTH describe result-oriented reasoning. How do we decide which readings of the Constitution are fair? At first glance, the only way to do that WITHOUT the sort of subjectivity which is not supposed to exist in the law, is to engage in a literal reading of the Constitution; but this strategy is rejected outright. So what is the standard of "fair"? Without such a standard, all you have done is say "there are two ways to interpret the Constitution. My way and the wrong way."



Sure. The only problem it is designed (as a term) by Scalia to only include judicial review that meets his moral-legal standards. There is no objective framework for deciding what decisions are "textualist" in approach. So yes, textualism is ideal, assuming your own definition of what "fair" means is... well, fair.



I think I can guess your answer... And mine is a surprising "maybe." I hate to bring it up again, but lets take a look at slavery. A "textualist" reading of the Constitution (as it stood in the first half of the 18th century) makes it fairly clear that "slaves" are not considered people. There is no "fair" way to see it otherwise if you start from the text, then work towards a legal decision. However, judges and legislators saw the problem in this. Sometimes we MUST engage in "result oriented-reasoning" to arrive at legal positions which are not supported by legal documents on their surface. This is a dangerous way to practice the law, but history has shown us that it is at times a necessary one. Unfortunately, this again forces us to use subjective values in determining which is the 'correct' way of engaging in legal interpretation; but Scalia already let that cat out of the bag.

While I don't think that it is the best way [I prefer a strict constructionist "interpretation"] it is preferable to the Living Constitution philosophy, which gives the judges the power to legislate from the bench.

No. As I said above, the Living Constitution allows judges to decide what they think is best for society, and then force that on the population. It is the Supreme Court's job to uphold the Constiution, it is Congress' job to legislate what they believe is best for society [actually I don't believe that to be the case either, but in any case, that's what happens].

CP

I think what he means by "fair" is to suggest that the ultimate interpretation of the constitutional provision is not divorced from the text of the constitution. It is not meant to suggest a "moral" high ground.





You misunderstand the meaning of "fair" in this context. It means a reading of the Constitution that is supportable in the TEXT OF THE CONSTITUTION. The requirement of fairness does not drive any result at all-- except fidelity to the text. It is meant to insure that the judges do not produce a reading of our constitution that is completely divorced from what the Constitution says. It appears from what you say that you make no distinction between a strict constructionist reading and a textualist reading. There is a difference as Scalia seeks to explain here-- with the use of the word FAIR.


Words have meaning. The problem with those who take such an open ended approach to constitutional interpretation is that they have lost sight of the fact that the Constitution is not just a charter of rights -- but also a design for government which places important limits on both judicial and legislative lawmaking.

Alright, so if we accept your definition of the word fair, then what is "textualism"? It's still exactly what I said it is. Who is the arbiter of what the Constitution "means" if not the Supreme Court? All he has done is repackage the auspices of Judicial review in cozy new terms to avoid concerns about Judicial Activism; which is something that liberal and conservative judges are both happy to engage in (the conservative ones just complain about it to the press more.)



You know, employing the cap locks to make your point is unnecessary. If fair only meant "supportable in the text of the Constitution," then there would be A) no difference between Textualism and any other method of applying the law, or No reason to differentiate between the two. How, you ask?





See the problem? It's redundant and meaningless like this. Definition 2 reads like "it should be considered strictly, and it shouldn't be read to do something that it doesn't mean to do." Well duh! Talk about your all time unnecessary statements. Does Scalia have any recipes for boiled water in that book of his?

There are two ways to read his definition, my way (which granted may be wrong), and your way; which renders it the sort of useless pablum which seems to provide nutrition for the sort of hypocritical blathering that critics of the "liberal" Courts love. There is nothing inherently critical or substantive to it. All it is a a vague declaration that "I am right" and "others are wrong" because "I apply" a meaningless standard.

Textualism is not the 'better' road because it is nothing. All that Scalia has provided here are two paths towards legal decisions would look diverse on paper but have no real divergence in thought process. The only real difference is that claiming to be a textualist allows you to sidestep complaints of "judicial activism" more easily, when it is clear that both models allow for the sort of "result oriented reasoning" that is prevalent in today's court.

But the question is, what does the Constitution say? It's open to interpretation what the meaning is so it's impossible to say that anybody is getting the real meaning or not. For example, the eight amendment prohibits cruel and unusual punishments. The Constitution doesn't say what punishments are cruel or unusual. How does textualism answer that? Article 1, section eight of the Constitution says congress has the power . What is necessary and proper? How does textualism answer that? It seems to me that textualism is really incomplete for interpreting the constitution since it doesn't address these gray areas.

(2) Is the “Living Constitution” approach the proper mode of judicial interpretation/review? Why or why not? I think it's not only proper but it's the only mode of judicial review. As I have said before there are places in the constitution where the text provides no answers. In these cases textualists would have the Supreme Court look to previous judicial precedent and avoid judicial activism. But what happens when the judicial precedent is liberal or unpopular. In 2001 Justice Scalia agreed with a unanimous decision to ban medical marijuana. If Justice Scalia looked at the constitution he could see that it doesn't give the government the power to regulate drug consumption. It's hard to believe the framers intended to ban marijuana, especially since it wasn't formally banned for over 150 years. So why didn't justice Scalia dissent from the decision? I would submit that Justice Scalia is using the "living constitution" mode in this and many other cases. Since Justice Scalia believes in outlawing marijuana he "makes up" the meaning that is "best for society." When it suits his political beliefs to use the strict textualist point of view he also uses that one too. In the end though, judges are forced to decide what the constitution says and that is impossible to do without the context of current or "living" history.

Rancid Uncle-- you raise some excellent questions and points. Let me address them briefly now. I would like to think it through more as well to give you a more complete (and easy to understand) answer later. So, bear with me!



Our country's law is rooted in the "common law" system. American lawyers are trained in the "case method". They are very adept at, and feel comfortable, navigating the law when it involves cases. Under the common law, each case builds upon the last case. Kind of like a scrabble board. So that law is built upon precedent. That having been said, European law is not based in "common law"-- rather it is based in what is called "civil law". Civil law sets forth extensive codes and regulations, with no binding precedent. The system there is different in the sense that judge and lawyers work more cooperatively to interpret the text of the vast codes that govern in Europe.

I am simplifying a bit here, but my ultimate point is that, the U.S. needs to learn from the approach taken in Europe as to how to read and interpret TEXT. There is much to be learned. It is not surprising that you such a dismal view as to the possibility of arriving at the proper meaning of the text of the Constitution -- given the entrenched common law view here in the U.S. In fact, I know Europeans who have attended law school classes that have been SHOCKED at the lack of attention paid to the actual text of our Constitution in a con law class. Some professors will go so far as to say-- just ignore the text-- because all the relevant law is in the cases.

A well known German lawyer and professor has written extensively in the field of comparative law on the subject of statutory (or constitutional interpretation) in Germany. He sets out four elements that are useful in analyzing a text to ascertain its meaning:

1) grammatical (textual) interpretation
(2) systemic (structural) interpretation
(3) historical interpretation
(4) evolutionary interpretation (closest to our concept of the living constitution).

A proper analysis of the constitutional provision looks to and balances all four of these elements. Much has also been written as to how to balance and weigh these four elements. My point is that we truly can learn from the Europeans in this regard as they are experts in this arena. In the same way, they can learn from us in terms of how to work with case law and precedent. In this country we have a lopsided emphasis on element number four. The text and structure of the Constitution has taken a back seat. That need not be so. As I said in a prior post, we forget that the Constitution is not just a declaration of rights but also a very specific design for how our republican form of democracy is meant to work. We need to START from a close textual analysis with respect for the overall structure of our Constitution. We must also consider the purpose of the provision being interpreted from BOTH a historical perspective as well as one that considers current circumstances. It is an overall balancing that needs to be done. It may seem difficult but it is certainly not impossible. They do it all the time in Europe.




I am not familiar with this case. I am going to check into it. I am very curious to see if Scalia was not true to his judicial philosophy. I know very well that there is such a thing as "conservative" activism. I will get back to you on this.

Interesting.

If we are to follow Scalia's way of judging the constitutional nature of something, it would appear that either women should never have been considered equals to men in the eyes of the law (as that was certainly the mindset of the founding fathers at the time, and not a word in the constitution contradicts it), or "Judicial Activism" is acceptable.

I find it intriguing (but at this point not at all unexpected) that this crucial point (referenced earlier in regard to slavery) would be ignored by those who like to wave the sword of righteousness at the Justices that dare to attempt to interpret the constitution to apply it to todays world and modern issues.

I would love to know how issues like discrimination against women, and minorities, or the government's role in marriage, or even the existence of farm subsidies can be reconciled if we were limited to:



Where can one possibly find any of these things in the constitution if it is not "leniently construed"?

I for one, tend to support a strick view of the constitution in regard to powers granted the Federal Government vs. the States. However, that horse left the barn a long, long time ago, and then the barn burned down. What was done, is done. Perhaps much of it was done through a far to "liberal" reading of the constitution (not meant politically), but what I fear even more is a far to "conservative" reading of the constitution (again not meant politically).

Perhaps we should consider doing what the founding father's intended all along and start amending the constitution to address the issues of today that did not even exist in the imaginations of the founding fathers of yesterday.

Overland Sailor wrote:



Yes, right. But much more recently than the founding fathers. The "equal protection" clause of the 14th amendment certainly existed in the early part of the 20th century. Why then did americans bother to go through the process of amending the constitution to give women the right to vote? Do you have any doubt that if the issue were today that the Court would not read the equal protection clause to grant women the right to vote?




Slavery is the issue that those supporting activist judges will always trot out as the proof positive that their approach is correct. But keep in mind that the country did indeed amend the constitution to abolish slavery. In fact, the judicial "activism" of Taney in the infamous Dred Scott case supported slavery and heralded in our bloody civil war. Activism is not always "liberal" and it is not always a good thing.





I think you are absolutely right. The horse has been let out of the barn. But to a certain extent that is ok. We are, after all, a common law country. We can proceed from here while still respecting existing precedent. That doesn't mean the judiciary should continue its "free form" interpretation of the Constitution into the future. We should push for judicial decision making that is more grounded in all four elements of interpretation.



But it doesn't have to be the Constitution. We can simply get back into the mindset that we need to work through the legislatures to effect social change.

[quote=hayleyanne,Mar 8 2005, 05:19 AM]
Yes, right. But much more recently than the founding fathers. The "equal protection" clause of the 14th amendment certainly existed in the early part of the 20th century. Why then did americans bother to go through the process of amending the constitution to give women the right to vote? Do you have any doubt that if the issue were today that the Court would not read the equal protection clause to grant women the right to vote?[QUOTE]

I did not reference the right to vote. I refered to women being treated as equals to men in the eyes of the law. The ERA was never passed. However, though the intent of the 14 Amendment was to protect / free African Americans it was later interpited as part of the legal basis for the civil rights act which also included women.

[QUOTE=hayleyanne]...In fact, the judicial "activism" of Taney in the infamous Dred Scott case supported slavery and heralded in our bloody civil war. Activism is not always "liberal" and it is not always a good thing.[/QUOTE]

I never said it was. My point is simply that we sometimes need to take a more open minded approach to the constitution if we are to apply it to todays world.

It is interesting to me that many who oppose "judicial Activism" point to the federalist papers as proof of what the founding fathers were thinking, but then ignore the anti-federalist papers which is also what the founding fathers were thinking. On most issues during the drafting of the constitution, there were at least two opposing view points, that resulted in various compromises. When we try to put the words of the constitution into the context of the founding fathers we need to consider all of them.

[QUOTE=hayleyanne]I think you are absolutely right. The horse has been let out of the barn. But to a certain extent that is ok. We are, after all, a common law country. We can proceed from here while still respecting existing precedent. That doesn't mean the judiciary should continue its "free form" interpretation of the Constitution into the future. We should push for judicial decision making that is more grounded in all four elements of interpretation. [/QUOTE]

The problem I see here is that what Scalia sees as "fair" seems to actually mean, what Scalia sees as right according to his beliefs. Otherwise, how could the man oppose treating minors as adults in regard to abortion, but support treating them as adults in regard to capital punishment?

And, if we are going to use a stricter reading of the constitution then where do we find support for capital punishment in the constitution outside of the crime of treason in the first place?

[QUOTE=hayleyanne][quote=OverlandSailor]Perhaps we should consider doing what the founding father's intended all along and start amending the constitution to address the issues of today that did not even exist in the imaginations of the founding fathers of yesterday.[/quote]

But it doesn't have to be the Constitution. We can simply get back into the mindset that we need to work through the legislatures to effect social change.

[/quote]

And when the legislature does not make that change? When the minority is the one who is oppressed and does not have the voting power to get them out? Then what? Do we allow Segregation Laws because the legislature did nothing to change them, the states involved did nothing to change them, and there is no specific provision in the constitution to address them? Or do we choose to consider the broader implications of the 14the amendment, as well as the declaration of independence (simply as a sign of the founding father's thinking) and right the wrongs of things like Segregation?

Well said. I have to say that is the first time I have ever heard an American suggest this. It seems far more common to take the opposite view.

This is the thing that I, as an outsider, find hardest to understand about American attitudes to the Constitution - the idea that it is a perfect and unchangeable thing that has to be interpreted but cannot be changed. As if it is on a par with scripture or someting, rather than a man-made construct (a very clever and far-sighted construct, but still a construct).

It seems to me that the Framers took an idealistic view of making something useful out of government, and the very fact that they chose to use the term "amendment" for the caluses of the Bill of Rights, rather than "clause" or even "rule" - that suggests to me that the Framers themselves didn't see ANY change to the Constitution (that followed the proper procedure) was off limits to future generations.

Yet somewhere in the 200+ years since, most discussion of the Constitution is based on the fact that it cannot be changed to be clearer, but has to be interpreted as it is (even this thread is only really talking about how best to carry out that interpretation).

This is fundamentally short-sighted, since it is only a matter of time before the English language has changed so much that only linguistic historians can make any sense of it. Think how "accessible" Shakespeare, or even Chaucer or Bede are to most modern lay people, and you'll get my drift. At some point, the entire US Constitution will need to be competely re-written (or at least updated) for it to be anything other than a mystery to most of the people whose rights it protects. (No doubt some could argue it already is!)

Of course, change would not be easy, since most of the interpretation ends up taking opposing views to fit a particular world-view, so it would be very hard to reach the necessary consensus of how to re-word particularly troublesome phrases.

It is not, since the description "A Living Constitution" is meant to imply that the Constitution can change and adpt to changing conditions. Such "automatic" change betrays the very purpose in having a written constitution in the first place.

The Constitution was written with the basic philosophy that large numbers of ordinary people, however imperfect, would do better on average that a dictator or group of elite rulers, in deciding how best to run the country and enable peace and prosperity. And the only way the Framers intended for it to change, was to be formally amended by a lengthy and cumbersome process that deliberately involves the widest number of ordinary citizens or their elected representatives. It was NOT to be changed by the whim of a few people who could decide that the changes they saw around them, justified changing the basic structure of our country.

It is better thought of as "The Enduring Constitution", since it was designed to cope with basic human nature rather than external conditions surrounding us. And while conditions change, human nature has not. And so quick-and-easy changes are to be avoided. Unfortunately, this wisdom has escaped many in government office now, and has for the last hundred years or so.

Scalia's emphasis on textual interpretation is far better than others' hopes for bending the Constitution to fit around whatever happened last week.

Most of those who oppose judicial activism are conservative or libertarian in philosophy. Most oppose increasing power of the federal government and are to some extent supporters of states rights. The anti-federalists were even stronger supporters of limiting powers of the federal government than the authors of the Federalist Papers. The Federalist Papers were a political response to anti-federalist claims that the Constitution was creating a potential for a tyrannical federal government. Sadly, the anti-federalists turned out to be right.

A more proper argument for those seeking increased federal powers is a Hamiltonian argument. The first major violation of the written Constitution happened in Washington's term with Hamilton defending the establishment of the Bank of New York and Jefferson and Madison strongly opposing it as an unconstitutional action. However, even the strongly federalist, for his era, Hamilton could never have seen the usurping of the rights belonging to the states and the people by our federal government today.

People should read anti-federalist writings also. They would certainly better understand the fear of a powerful federal government that was prevalent in the colonial period and afterwards. The arguments that preceded ratification were between those who wanted a federal government limited to specific enumerated powers and those who thought even those specific enumerated powers were a bit too much.

Hayleyanne quotes Tribe as saying that judges should make up whatever meaning they can manage from the text of the Constitution, that best translates to solving the problems at hand. And some have replied that the Constitution doesn't need that kind of twisting and bending.

It is bad enough that some people, especially those in a judicial or lawmaking capacity, seem to pursue such a flexible agenda with regard to whether the Constitution permits certain government actions. But an even worse spectre lies on the horizon... or closer. There are a number of such official persons who have made laws - sometimes far outside their original jurisdiction - without even trying to pretend the Constitution endorses their views.

In the Supreme Court case involving racial discrimination in Michigan college admissions, five of the Justices voted that such racial discrimination could go on, completely ignoring the Constitution's flat prohibitions against it. Their justification was that government has the duty to right the wrongs of past oppression... though no particular oppression was cited in the history of the plaintiffs in question. And more importantly, no reference was made to any part of the Constitution where such a duty might be found. Understandably, perhaps, since there is none. The five justices made up this "duty" out of thin air.

In another case involving the Campaign Finance Reform Act, those same five justices decided that it was permissible for Congress to make a law forbidding political campaign ads before a major election. Their justification was (literally!) that the ads might offend someone. And again, they didn't even try to find the part of the Constitution protecting our right not to be offended.... because, again, there is no such protection anywhere in it. They made up this "protection", once again, out of thin air, and didn't even try to pretend it came from the Constitution.

This is even worse than the acts that are the subject of this thread: judges etc. who twist parts of the Constitution to mean something other than what their writers intended. At least those people TRY to find parts of the Constitution to support their claims. But in the cases I mentioned above, and others, judges are simply inventing new governmental authority from thin air without worrying what the Constitution says at all. They are basing their rulings on what they WISH government had the authority to do, not on what the Constitution says it can do. They are, in fact, being dictators, in the truest sense of the word.

In this thread, we are examining people who try to twist the Constitution into "saying" what they want, but are neglecting the people who simply make up new authority without worrying what the Constitution says at all. That's like worrying that the horse has escaped the barn, without worrying about the fact that the barn is on fire.

The Constitution twisters are a threat to Constitutional governance and the rule of law. But the Constitution ignorers are an even worse threat.

Ultimate Joe wrote:



No Ultimate Joe, you are wrong because you assume that both textualism and dynamism (“living constitution” when interpreting the Constitution as opposed to a statute) both engage in result oriented reasoning. The textualist is careful to support the result in the text itself.

Here is a good example of both approaches. In both instances the result is one that would be desired by those supporting same sex relationships. But the holdings are arrived at using entirely different modes of statutory interpretation.

Dynamism: In the case of Braschi v. Stahl (1989) a court in New York had to decide whether a gay couple was a “family” under a New York rent control regulation enacted after WWII. The language of the regulation specifically forbid eviction from a rent controlled apartment of “either the surviving spouse of the deceased tenant or some other member of the deceased tenant’s family who has been living with the tenant”.

The court held that the gay partner was a member of the deceased tenant’s “family” under the language of the regulation. The normative result of this holding may be correct. But it has no principled legal basis. The court essentially updated the rent control statute to conform to the court’s modern notion of family. It usurped the role of the legislature. It ignored the meaning of the word “family” within the text and in any legal sense.

Textualism: In the case of Oncale v. Sundowner Offshore Services (1998) the Supreme Court held that Title VII applied to same sex sexual harassment even though the Congress of 1964 did not even conceive of the statute as applying to such a situation. The rationale for the holding was purely text based. The text itself, stated simply that sexual harassment was prohibited. Textualists understand that statutory prohibitions often times go beyond what was originally intended by the legislators when the text is clear.

Can’t you see the distinction? Textualists are faithful to the text. They do not give precedence to legislative intent any more than they do to the “evolving” standards in a modern society where the text itself says it all. In the Oncale case you see a wonderful example of conservative justices who have refused to read their own views about same sex relationships into the Constitution when they could have easily done so by citing to the legislative intent in 1964.

Overland Sailor wrote:



We have gone over this so much in the Juvenily Death penalty thread that I know you have been following. Scalia is not imposing his views in those two cases. He is respecting the Legislature's views in both instances.


Little Acorn wrote:



You are referring to the U-Mich cases on affirmative action here. These cases are very blatant examples of judicial activism because they ignore the constitutional directive against discrimination on the basis of race embodied in the 14th amendment. But the rationale had nothing to do with righting the past wrongs of oppression. No-- the rationale was much more dubious. It rested on "diversity" being read to constitutionally be a "compelling state interest" enough to justify discrimination on the basis of race. Picking apart the weaknesses of that rationale is worthy of its own thread.

1. Yes, "textualism" is the proper mode of judicial review. This approach takes into account the intended meaning, context, and core principles behind the constitution and applies it to current cases. With such an approach, the core values of our constitution are not lost in modern context.

2. Living constitution is not the proper mode for interpreting the constitution. Under such a relativistic approach, the constitution essentially means NOTHING. It can be twisted into any possible meaning given the political flavor of the day and the personal leaning of those trusted to intepret and then enforce our constitution.

Actually I cannot see the distinction. In first situation. The statute "forbid eviction from a rent controlled apartment of “either the surviving spouse of the deceased tenant or some other member of the deceased tenant’s family who has been living with the tenant"

So, what does the word family mean?

(source)


1b., and 2 seem like they specifically speak to the issue at hand. Sure, in the past we did not consider same sex couples to be a "Family" but the definition of the word clearly includes them. Just as in the past we did not consider sexual assault to be anything other then male crime against women, and yet we have EXPANDED that idea to include same sex crimes and crimes by women against men.

Now how about sexual assault:

(source)


It seems to me, based of the definition of the word in question that both examples show Textualism in that their decision was supported by the actual text of the statue, and Dynamism in that they expanded the application of the statute beyond the original intent of the writers of the statues.

The only difference between the two that I see is in the personal opinions of those who oppose the homosexual lifestyle. If you take that bias out of the equation there is no difference between the two rulings.

Two points. First, I think you would be hard pressed to get most people to agree that "family" means all those things in this context. Second, even assuming the word "family" means what dictionary.com says it does, the case was decided in 1989. Much has changed in 16 years. The court in New York did its part to get "family" to mean what it means in 2005 didn't it?

Sexual discrimination (case law says harassment) on the basis of sex is as clear in 1998 as it was in 1964. The phrase "based on sex" still encompasses the broader meaning. The broader meaning is not dependent on the meaning of the word itself changing over time.

First, the meaning of family as being "all the members of a household" goes back to the word's origins...

Etymology: Middle English familie, from Latin familia - household (including servants as well as kin of the householder).

So the word family has always had its roots in the household definition.

familiaris - belonging to a household (from which we derive "familiar")
famulus - servant
famulatus - servitude, slavery, service.

Second, a textualist should ignore what "most people" think family means and what he himself thinks family means and look to the actual definition of the word. To do otherwise would be more along the lines of what you consider to be the "Living Constitution" approach. If the regulation was intended to be specific, it should have referred to relatives -- which would have meant spouses or blood relations.

No, a textualist would look at the common meaning of the word. The common meaning of the word "family" would not include a gay couple. In contrast, the The Oncale court, by extending the protection of the statute to "same sex" discrimination did not need to go beyond the common meaning of "sex". The statute could be read to include include any type of discrimination based on sex without violating or extending the original meaning of the word sex. A textualist approach looks to the common meaning of a word and understands that doing so may extend the reach of the statute. A textualist approach will not go beyond the common meaning to achieve a desired result.

Language is fluid not static. What was “common” meaning at one point may not be common meaning today and what is common meaning now may not be so within a few years. The word “gay” itself once meant (actually still means) happy as in the decade of the gay 90s. (1890s)

We don’t, however, need to go back to the 1890s to illustrate this point. The popular TV program The Flintstones first aired in September, 1960. A mere 45 years ago, “gay” meant something entirely different. From a textualist position, can we assume that James Dobson will be targeting reruns of The Flintstones next?



http://www.geocities.com/tvshowthemelyrics...stonesSong.html

My 1987 edition of Random House Dictionary of the English Language lists these meanings of the word “gay”:



It is not until the fifth definition that we get this:



Now, we’re down to less than 20 years in linguistic evolution.

Textualism as you have presented it is not only simplistic, but ignores the subtlety of evolving language.

What exactly is your point? Of course words change meaning over time. Are you suggesting that the word "gay" in a statute enacted 30 years ago should also take on the meaning of homosexual when we read the statute today?

How do you suggest that a term in a statute be read if it is not read in a way that is consistent with the meaning of the word at the time the statute was enacted?

You did not address meaning as consistent with what the word meant at the time the statute was enacted. You used the phrase "common meaning." My question to you is what is "common meaning?"

BTW: I don't see much point in the whole "textualist" argument.

Yes I did.

In the original post:



And later (by implication) in a response to entspeak:

Hayleyanne wrote

Yes I did.

In the original post:



And later (by implication) in a response to entspeak:






http://slate.msn.com/id/1000162/

Although maligned by many, Bill Clinton was onto something here—that even a simple word like “is” I open to interpretation and diverse meanings.

I don’t know how long the idea of “strict construction” has been around. I first heard it from the lips of Richard Nixon in the 70s and in the 2004 Presidential debates from George W. Bush. “Textualism” seems to be a creation of the brilliantly simplistic mind of Justice Scalia. Originally the term appeared in 1860-1865 and referred to someone who adhered closely to texts, especially religious scripture. Scalia is a religious man and his applying the term to law doesn’t surprise me. In fact, I don’t think calling Scalia a judicial fundamentalist is much of a stretch.

The problem with textualism is the imprecision of language. Here’s an example of statutory law. If one goes simply by text, how do we assign a meaning to the term “substantial?"



http://usinfo.org/usia/usinfo.state.gov/us...democrac/39.htm

Or let’s take a passage from The constitution of the United States

Amendment II


I’m not quoting this to start another argument over gun control, but to illustrate a point. There seems to be two basic arguments on Amendment II: (1) the right to bear arms belongs to a militia or (2) right to bear arms belongs to individuals. This argument has been around for as long as I can remember without being resolved. How does a textualist approach help in this instance?
Perhaps we should take some text from a Supreme Court decision to further illustrate. Brown v. Board provides an example.



http://www.loc.gov/exhibits/treasures/trr007.html

Fifty-one years after Brown, there are schools that are still more than 90% minority. Is this what the Warren Court meant by “all deliberate speed?” How does a textualist approach help in this instance?

The imprecision of language and parsing of words makes textualism irrelevant.

Edited to add:

I don't know why the emoticons are showing up in the text I quoted, but I didn't put them there.

I see. So going with the "common" accepted meaning of a word rather than it's actual definition is texualist? Isn't that living constitutionalist? The English language evolves over the years. You are stating that because now the word family is more commonly used to exclude gay couples that this is the meaning the courts should use? Rather than sticking to the text and the actual definition? Again, if the intent was to refer only to spouses and blood relations, then the word "relative" should have been used in the regulation... it wasn't. You are restricting the definition of "family" because of your own personal beliefs and a "common" belief. Any judge who would do so to exclude gays is creating a restriction where none exists in the law itself.

Isn't that exactly what they did with the sexual assault issue? They took a statute, originally intended by those who wrote it, to protect women from attacks by men, and then, based on the ever changing world, they applied that statute to assaults on men, by men, and women by women, something, you admit that the original writers never even considered.

As I said before, the only difference between the handling of both cases is in eyes of the person looking at them. A personal bias against considering homosexual couples as a family, even though, on one level, the word family has always meant members of the same household, clearly illustrates this.

Why is it OK for the court to apply a statute to a situation the writers of the statute never considered, in one case, but not the other?

As I said at the beginning of this thread, textualism is not to be confused with strict construction. Textualism looks to the text first and foremost. It also considers a number of other things: the rules of statutory interpretation; the common uses of the particular word; the context in which the word is used; whether there are any regulations specifically defining the word or context; the use of the word in other places within the statute etc. It is not "simple" but it is faithful to the text of the statute itself.

As for your "critique" of Scalia and textualism and your suggestion that both are somehow related to religious fundamentalism -- I suggest you educate yourself. Your attempt to paint textualism and religious fundamentalism in the same canvas seems to me a transparent attempt to label all those who adhere to textualism as religious nuts. Judicial fundamentalist indeed. What does that even mean? You may be confusing "textualists" with those who believe in "natural law"-- but that is a different question, and one for a different thread.




As stated above, textualism has many tools it employs in ascertaining the meaning of a statute. All ultimately are faithful to the text. That does not mean that statutes don't need "interpreting". Of course they do. But you will not get an atextual result in the process.




Interpreting the Constitution does present a different set of issues. First, given the age of the document itself, the issue of stare decisis (respecting precedent) is something that cannot be ignored. Second, textualism places great importance on context and understands that the Constitution is drafted broadly but it does not support a reading of the Constitution that the language itself does not bear out.
Finally, some argue that the Constitution is "anti majoritarian" and for that reason the rules of statutory interpretation do not apply as stringently to it. This latter point is of particular interest to me and I am currently researching it.






Well, first off, "all deliberate speed" is not statutory language nor is it constitutional language, so I am not sure what your point is. It does raise an interesting issue related to how successful the Court can be in mandating a particular result-- but that is not the topic of this thread.




A textualist looks to the original meaning of the word when the text was enacted. To do otherwise is to import societal change into the text of the statute. It has nothing to do with my beliefs about gays or family.





I don't know why you can't see the distinction. In the sexual harassment case, the word "sex" itself has not changed meaning. Granted the impact of the statute is broader than originally intended but this is not achieved through a different meaning of the word "sex". In contrast the New York statute achieves a purpose different from what was originally intended by reading "family" to mean something other than its common meaning in the 1940s.

For Bof, Entspeak and OS-- again I ask the question:

How do you suggest that a term in a statute be read if it is not read in a way that is consistent with the meaning of the word at the time the statute was enacted?

If you would read rather than twist words, you would see where I acknowledged that a “textualist” approach is different—at least in the Minolta like mind of Justice Scalia. What I was trying to point out is that the “strict constructionist” idea, while I don’t care for it, has historical roots. I was less than three years old when Franklin Roosevelt died, but I do know he tried to pack the U. S. Supreme Court, an idea that even liberals, like myself, think was wrongheaded. I don’t remember much about Harry Truman, except that my grandmother, a Gold Star Mother, got upset when he fired Gen. Douglas McArthur. This was a decision I applauded as I got older. I don’t remember much about Eisenhower, but from reading presidential historian Robert Dallek’s biographies of John F. Kennedy and Lyndon B. Johnson, I’ve come to appreciate him as what I consider the last good Republican president--one who worked well with Democratic majorities.

I don’t remember Kennedy or Johnson ever talking about “strict construction,” let alone “textualism.” Nixon, himself a lawyer, did talk about “strict construction” as did the parrot Bush, a University of Texas Law School reject. So, my point is that “strict construction” has history, which may well predate Nixon, while “textualism” has none--other than a sugar plum like vision dancing in Scalia’s dreams. “Textualism” seems to me like a bad case of flu—the only saving grace being that it doesn’t seem to be particularly contagious.



Again, I would suggest that you read what others write a little more thoroughly and quit twisting words. My point was that the words “textualist” and “textualiam” originally appeared in the mid-1860s and applied to theology--not law. “Textualism” was a method of approaching scripture. I’m not connecting Scalia with fundamentalist theology, but a method of approaching the law that is analogous to the way fundamentalists approach scripture.

BTW: I’m just going to have to get an OED for my library. The information on "textualism" came from the 1987, 2nd edition of The Random House Dictionary of the English Language .

So in other words it is virtually a meaningless term then. You pit textualism against the "living constitution" approach. Yet you acknowledge that both textualism and the "living constitution" approach result in the judge factoring in current circumstances in society as well as what the text says as well as case law, etc

The only different between the two that I can tell is that a "textualist" somehow places a higher priority on the text (in your opinion), but he still makes a judgement based on society and case law too.

In other words there is no difference whatsoever. You cannot in any way prove that someone who judges with what you refer to as the "living constitution" approach does not place a high priority on the text or the actual meaning of it, you can't even prove they place a lower priority on it than a "textualist".

What you have done is coin two different terms for judicial activism, one for the type of activism you approve of (a textualist) and one for the type you don't. I'm sure that a simple example could probably prove this out but I'll spare you since I don't want to make assumptions about your politics.

Now if we were debating a strict constructionist (i.e. the type of person that thinks that the federal government has basically taken too much power by abusing the general welfare clause) vs a judicial activist (who believes the constitutional interpretation evolves with society) then that might be a debate. Here we are arguing over meaningless nuances of the same thing, except by calling someone a textualist you don't have to admit to yourself they they are a "judicial activist" since that is one of those evil slanderous terms reserved for liberal judges fighting for civil rights and the environment, usually in the 9th circuit.

Ideally, yes. Realistically, no. Can you imagine A: How we'd get Trent Lott and Ted Kennedy to agree on anything, especially anything pertaining to how much power the government has? B: What in God's name would be in the Constitution if we allowed Conservatives and Liberals to Conserva and Libera tize the Constitution. No one would be concerned with limiting the government's power...Because [cynicism --->] today's politicians are more concerned about their power than the limited gov't tradition of our country. As much as I, in theory, agree with you, I don't think it's gonna happen.

Common? If you asked a gay guy or girl what family meant, I bet his definition would include a gay couple. It all depends on who you ask. And if you say that the opinion of most Americans is "common", that would make gay people uncommon, and in the textualists' mind [if you're correct], that would make them no worth representing. The Constitution was not designed to limit freedom. It was designed to limit the government. The Supreme Court's job is to interpret the Constitution, any issue that does not have a connection to the Constitution is not to be reviewed by the Supreme Court. But in a textualism [and Living Constitutionalist's] mind, it would have to be. Textualism across the board would lead to an unConstitutional use of the Supreme Court [such as we have today].

CP

I just went to Border's and got a copy of the Concise Oxford English Dictionary, 11th Edition, 2004. According to COED:



Hayleyanne I am applying "textualism" or "original meaning" to the concept of being a "textualist." Scalia would be proud of me.

(1) Is Textualism the proper mode of judicial interpretation/review? Why or why not?

"Textualism" or "Originalism" as i believe Scalia prefers to call is definately what i prefer for judicial interpretation. Judges have the job of interpreting the US Constitution as is...personal opinion and ideology should play no part of one's decision. Judges are supposed to be impartial and show allegiance only to the law. If judges conduct their own activism and legislate from the bench then basically they are desecrating the Constitution.

Judges have amazing power in the american political system. They make activist decisions on cultural and social issues and its held as law. Some say that in order to check that power that we should amend the Constitution. But Amendments were never meant to deal with such petty issues...they were meant to be up to the decision of the American people.

For instance, recently we all know of the Calif. Judge who said banning homosexuals from marrying was unconstitutional. Now i dont care about the homosexual marriage thing because...well i just dont care. But what i do care about are Judges going against the will of the people and twisting words of the US Constitution to fill their argument. If the State Constitution says something that was added by the people of that particular state...then it should be upheld.

(2) Is the “Living Constitution” approach the proper mode of judicial interpretation/review? Why or why not?

My problem with the "living constitution" idea is that...if judges can just make decisions from personal views and void laws passed by the will of the people...why bother making laws? What legitimacy would laws have or the judiciary if judges could change the law and skew the text to fit their own agenda? If a liberal judge says one thing, and then a conservative judge says another in the higher court...then whats going on here? They both see the same law...but skew it to how they see fit. I don't want that...its not what was intended. The law is there and it should be strictly followed.

Lets not confuse the situation though. Originalists understand that with changing times and changing issues...that the Constitution must adapt to these new situations. However...using the pragmatic principles of the Founding Fathers is how we should decide the best route on an issue. Not by judge after judge in which the decision could be different every time.

Keep politics out of the Judiciary! I know its hard...but it is necessary.

As I just stated in my response, there is no such thing as "textualism" and in fact it is just another way to refer to "judicial activism" without actually invoking those dreaded words.

Back at the very beginning of this thread, Hayleyanne defined her (and Scalia's) own made up term thusly:


So what are we saying in here: we look at the meaning of the text, we evaluate historical interpretation (i.e. case law) and we utilize evolutionary interpretation (i.e. judicial activism, legislating from the bench, and any number of other conservative slurs for this practice).

As I said before, this is no different than Judicial Activism it just allows conservatives to engage in it without falling victim to their own rantings about it.

If you are going to suggest that Scalia does not place personal opinion and ideology in his decisions then 1) you need to go re-read this thread and 2) you need to re-read his decisions. By the very definition of "textualism" which everyone claims Scalia follows, it implies that he too weighs his personal opinions and politics into the equation - just not so much, and of course if those politics happen to line up with your politics, well that's no big deal.


The Constitution isn't about the will of the people, it is about preserving people's rights Leder. If the people passed a law tomorrow stating that anyone with brown hair should be executed that would be the will of the people - it would also be wrong.

There is a reason our country is not governed by mob rule.


Well then you apparently have a problem with textualism too because it is the same thing. In fact there would be numerous decisions that might be reversed with this line of thinking setting rights in this country back considerably.

People talk as if the Supreme Court is on a tear, I wonder how many decisions they actually reach in a given year and out of those how many of them actually have any relevance to the country as a whole. I'd be temped to say at most 1 a year and that is probably generous. Congress on the other hand passes hundreds of pieces of legislation each term of varying complexity and impact, more if you consider state legislatures.

To hear conservatives who rail about "judicial activism" talk these judges are working 24/7 to (in their minds) undo the laws of this country when the reality couldn't be further from that.

CJ, i think you can see from my post that i do not care about whether a judge if conservative or liberal...it makes no difference. Judicial activism is judicial activism no matter who it comes from. Painting me with the brush of a conservative apologist does nothing because nothing is further from the truth.



His personal opinion is that we should take into account what the Founding Fathers intended the document to do for the citizens of the country. And yes...that does coincide with my views. Now obviously personal opinion is a factor in a judge's decision...but it should not be the deciding one. Personal opinion should play as little role as possible in a decision because when it comes down to that...why should his opinion be any more legitimate than anyone else's in the country? They are supposed to interpret the law as is.



The Constitution IS about the will of the people. The will of the people to preserve rights. Once that will is gone...then the document is meaningless. The people have the power in our government...not the Constitution...thats one of the fundamental principles our country was founded upon.

Your scenario is ridiculous...and even though i get what you are trying to say...it just would not happen. Becuase even if it hypothetically did happen...what much could a judge do about it?

Ok fine, but you are admitting that his personal opinion as well as his view of society factors into the descion process. We aren't talking about being a strict constructionist here.

Therefore, how can you say that the other justices whose decisions you don't agree with don't go through the exact same process and are only applying their personal opinions to the situation? You can't, because that is exactly what they are doing.

Only it is different because you don't agree with their decisions and their politics. We are talking about two different flavors of judicial activism, one you like and one you don't. I'm sorry to tell you that both camps are doing the job correctly.

You can't ask why should their opinion be more important than anyone else in the country and then in the very same sentence say they should interpret the law. The very nature of interpreting the law means that you are going to weigh in your personal opinions and thoughts. As to why their opinions are important? The system makes them important. We elect 50 senators through a democratic process and those senators choose worthy judges for positions on the supreme and federal courts to interpret the law.

As I have stated in other threads I have no problems with the powers of the judicial branch, they are extremely necessary. I think the selection process needs work to mitigate some of the political factors that didn't exist when the constitution was written.


Full of contradictions today aren;t we? If the Constitution has no power and the people do then why are judges supposed to interpret the law? Its going to be really hard to have a meaningful debate here if you keep contradicting yourself 3 sentences later.

And I made the scenario completely ridiculous and extreme to prove a point. Congress and "the people" are free to pass whatever laws they desire. If they wanted to pass a law stating that all brown haired people should be executed then they could. It would be the job of the supreme court to declare that law unconstitutional and put a stop to the practice.

I could easily make the example more realistic by taking about slavery, minority rights, women's rights, any number of decisions that have been made by the courts in the past.