During the Senate Kavanaugh confirmation hearing today, there was a very interesting conversation between Senator Mike Lee and nominee Kavanaugh. Senator Lee was questioning Kavanaugh on the differences between Original Intent, Originalism and Textualism.
Not being a judicial scholar, it was informative and also a bit disturbing. It appears that they current definitions being used are:
Textualism: What is written in the actual text of a law, without regard for original intent.
Originalism: Textualism applied mainly to the Constitution itself.
Original Intent: Out of vogue, and no longer a consideration.
From a novice and common sense perspective, this seems to be very wrong. Poorly worded laws will not be judged based upon the intent, but purely on the text that is written?
Kavanaugh does give an explanation for this modern interpretation, and to sum it up in two words it’s “because slavery”. So because the original “intent” of some of the legislators and persons writing the Constitution was to have separate classes of people, mainly free people, slaves, men and women, then the original intent shall never be taken into account again.
This defies common sense. Eliminate any consideration of the intent of the law?
The solution was obvious. Amend the Constitution. Delete references to slavery. Make it clear that any text that refers to an individual from this day forward shall be considered gender and race neutral. Job done, and original intent can still be part of the judicial equation.
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Edit: video added, go to 14:20 for relevant discussion.
https://www.youtube.com/watch?v=0Z684x4HN9E
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