These literalist justices are of the mind that if it wasn’t explicitly written, then it’s not allowed. Generalist/broad swath language is to be ignored. Only specific instruction is to be interpreted.
>Originalists/textualists just think the words on the page are the words on the page.
That is incorrect.
>No, it's logic that mandates you interpret the meaning of the words on the page by what they would've meant to those who wrote the words.
Only if you think the original meaning is what governs today. Obviously many others do not, hence the mix of people you see on the Supreme Court today. Arguing that there is one and only one correct way (because "logic dictates" or whatever else) is an ideological argument on theories of constitutional interpretation. It's an ongoing and lively debate if you're into constitutional law.
This is the one thing I really took away from (way too much) recent reading about Scalia and textual originalism - in my opinion, it's almost downright foolish to obey 'the letter' of the original law, and it's completely right of anyone asked to judge based on the law to do just that. I think it'd be kind of stupid in this case in particular and in all cases in general to ignore the context surrounding the law, both at the time it was written and in the present day.
My understanding of strict textualists' arguments (especially Gorsuch), is that they view it as a separation of powers issue.
By only looking at the text of the statute, the Court—which consists of unelected officials with lifetime terms—is trying to limit its power. If the text is unclear, they feel it should fall on elected officials to clarify it.
It’s less contradictory in my mind if I don’t frame it as “penalizing” the drafters of Title 7. To me - especially when read together - it says “Congress gives us no choice but to apply the law in a broad fashion, because they explicitly chose not to limit it; and it’s not our fault if this results in unintended consequences.” With an implied wink and a nudge to Congress saying “you can fix this if you’re really all that bothered, you know.” :)
Or maybe put another way: sure, they didn’t and couldn’t possibly have listed all exceptions to the law. But they didn’t really try; rather they listed one exception for everything (churches, basically) and didn’t bother with any other exceptions. And in light of that, the court didn’t consider it appropriate to read in exceptions when Congress very clearly wrote an extremely broad law. Essentially Congress gave no signal it wasn’t supposed to be broad.
Well when your job is to interpret the constitution, it should be grounded on the text. That's why there are textualist who disagree with your interpretation of the role of the court. It is supposed to be the foundation.
This Supreme Court is, and always has been, political. The idea of the "textualist" or "originalist" interpretation of the Constitution as a philosophy is just propaganda invented in the 1980s shortly after the Federalist Society was founded.
This court seems determined to overturn Chevron [1], which is the basis for deference given to administrative bodies empowered by Congress, the so-called "administrative state" (or "deep state" depending on how far down the rabbit hole you are).
It's the same politics behind the major questions doctrine [2]. This was an approach invented by this court that basically says in matters of statutory interpretation if the issue is sufficiently large, which is subjective, then Congress needs to be absolutely explicit in the powers granted. This was used to deny student loan forgiveness because even though the exeuctive was granted this power, the Court decided the amount was large enough that Congress had to be more explicit.
Put another way: the legislative branch is overruling both the legislative branch that drafted a law and the executive branch that signed it into law. It's quite literally legislating from the bench.
Chevron is another prong in the attack on executive authority. Instead of deferring to experts in the various departments, Congress would need to decide every matter. So if the law isn't explicit enough (according to SCOTUS) then Congress would need to decide every little thing with new laws.
This is untenable. Congress doesn't have the bandwidth to, say, decide fish quotas or hunting seasons or, more importantly, things like what constitutes "clean water" and the allowed actions to enforce that.
This is a very deliberate attack on government itself. It's a form of deregulation to transfer even more wealth to the hands of the very few. Why? Complying with regulations costs money. That's what this is about.
I would argue that that is in practice their job, especially given the amount of ambiguity, both unavoidable and superfluous, in the legislation-as-written. I actually have a very strong dislike for Scalia because I think that his legal 'originalist' philosophy is pretty much like biblical 'literalism' - it's an interpretation that is (a) convenient to him and (b) denies the validity of all other interpretations in an underhanded way.
This seems like an unfair characterization. Whether or not judicial review formally exists[1], in any system where the courts are functionally independent of the legislature it stands to reason that having the lastsay in a matter puts one in a rather consequential position that's vulnerable to easy criticism.
That's why people who think Textualism is a check on the judicial power are mistaken, IMO. Notwithstanding that the first and usually only step in traditional statutory interpretation is to apply the text of a statute according to its facial meaning, the underlying principle is to give effect to the intention of the legislature or the purpose of the law. (Most scholars will tell you those--intention vs purpose--are distinct philosophies, but I personally think it's a distinction without a difference.) Textualism doesn't care about intention or purpose and will gladly apply an interpretation that would have seemed absurd to anyone who drafted or voted for the law before the implications (i.e. the insanity of the world) laid bare the ambiguity. And because no self-professed textualist applies this method with perfect consistency (including and, especially IMO, Scalia), expressions of partisan bias can be even greater as the fiction of textualism provides an effective cover, both for the judge and his critics; discretion is disguised because nobody cares when you apply a meaning with which everybody agrees--or at least which seems reasonably consonant with the application of intent or purpose--yet which is nonetheless at odds with the text on its face. Recognizing one's own inconsistencies in this regard, or proving the inconsistencies of others, is far more work than identifying and calling out specific instances of obvious partisanship--especially when the latter are admitted, like during the Warren Court years.
[1] In Western legal philosophy it's usually considered a violation of separation of powers and of justice more generally for a legislature to directly overturn the result of a particular case, as distinguished from changing the law for future cases. Because the buck stops with the courts, of course they get all the flak for disagreeable decisions, and it's convenient to attribute subversive or even malicious motivations. This dynamic is exaggerated in systems with formal stare decisis because the courts effectively only get one bite at the apple. Without stare decisis courts can apply the law differently in different cases, often in response to partisan or popular reactions, which while lowering the stakes and defusing tension has its own obvious problems regarding consistency and discretion. Indeed, even in civil law countries I think there's a direct correlation between the maturity and strength of the judiciary and de facto application of stare decisis--pretense of a lack of discretion. In terms of obeyance to precedent, French or Italian courts are far more consistent than, e.g., Russian courts. Discretion invites corruption. It's no coincidence you never hear stories about how a Russian judicial opinion substantially frustrated the government or legislature. Likewise for Chinese courts, though in the commercial sphere they're far more independent than in Russia, AFAIU. Similar criticisms have been leveled at Japanese courts--e.g. the Supreme Court of Japan has only once or twice overturned a law even though it nominally has the same power as in the U.S. and there's a strong academic consensus it should have done so in many more instances. Though, the peculiarity of Japanese culture makes it difficult to ascribe it to corruption.
> decisions of vast “‘economic and political significance."
How is "economic and political significance" defined? From what I understand of the decision, it's defined as "6 of 9 people on SCOTUS don't like this regulation." And the deeper you dig into it, the more you find that these 6 people are willing to throw out just to be able to strike down this policy decision.
Supposedly, these 6 justices are advocates of textualism--the actual text, as written in the statute, should be dominant in the analysis of what can and can't be done in terms of interpretation. And here they completely ignore that in favor of trying to second-guess what Congress intended because... they can't use textualism to achieve what they want, I guess.
Extreme literal interpretations of any text (however times re-written by multiple scribes) is a self-induced limitation of perspective. This is why the SCOTUS has multiple people.
Furthermore, when can we tax religion in the USA and weaken its power over the population?
>The purpose of SCOTUS isn’t to rule based on what the desired outcome is, it’s to rule based on what the law explicitly does say
This is actually a modern take that was essentially created by Justice Scalia. I like the take ("textualism") in many ways but, to be clear, the SCOTUS has no such mandate.
Textualism as practiced is already calvinball and there is little point in trying to identify rational legal arguments that may persuade the court. It is much more explanatory to just look at the biases of the justices and assume they will reverse-engineer a textualist interpretation that supports their position.
See Bruen where a lack of laws regulating guns indicates public carry is a right rooted in historical tradition vs. Dobbs where a lack of laws regulating abortion before quickening does not. [1]
The conservative legal movement has turned constitutional interpretation into a shell game where choice of framing and selective use of historical examples can yield whatever result the justices already want.
All of that said, the argument is that parking minimums constitute a restriction on your property rights for public use without compensation and a similar argument could be made with things that did exist at the time such as carriages. Again see Bruen where Alito "refutes" a weapon ban by arguing handguns are more analogous to daggers than to lances.
If you appoint strict constructionist judges who would interpret the literal text and original intent of the constitution, you would probably also have to give up Roe v. Wade and things like affirmative action, that are not literally in the constitution.
reply