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Thread: Original Intent vs Originalism vs Textualism

  1. #1

    Original Intent vs Originalism vs Textualism

    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.

    ———————

    Edit: video added, go to 14:20 for relevant discussion.


    https://www.youtube.com/watch?v=0Z684x4HN9E
    Last edited by Brian4Liberty; 09-06-2018 at 10:09 AM.
    Twitter: B4Liberty@USAB4L
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  3. #2
    If I was a supreme court judge I would be pretty anal about sticking to original intent.
    "The Patriarch"

    Quote Originally Posted by Swordsmyth View Post

    Not going to happen.
    Quote Originally Posted by Schifference View Post
    The man did not think clearly. It was almost as if he had brain cancer of something.

  4. #3
    Learn something new everyday...two meanings of Originalism:

    Originalists seek one of two alternative sources of meaning:

    The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it. This is currently a minority view among originalists.

    The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text to be. Most originalists, such as Scalia, are associated with this view.
    Last edited by Brian4Liberty; 09-05-2018 at 02:33 PM.
    Twitter: B4Liberty@USAB4L
    "Foreign aid is taking money from the poor people of a rich country, and giving it to the rich people of a poor country." - Ron Paul
    "Beware the Military-Industrial-Financial-Corporate-Internet-Media-Government Complex." - B4L update of General Dwight D. Eisenhower
    "Debt is the drug, Wall St. Banksters are the dealers, and politicians are the addicts." - B4L
    "Totally free immigration? I've never taken that position. I believe in national sovereignty." - Ron Paul


    The views and opinions expressed here are solely my own, and do not represent this forum or any other entities or persons.

  5. #4
    Apparently taking original intent into account is problematic, as that could easily be twisted without proper evidence of what the original intent actually was, especially given that there will probably be multiple and conflicting historical records about the legislative process. Kavanaugh mentioned this.

    IMHO, the insult to common sense occurs especially when there are contemporary laws, and living lawmakers who disagree with an interpretation of the law they enacted.

    Lawmaker: “That is certainly not what we intended when we wrote that law!”
    Judge: “Sorry, that is how law enforcement and this court interpret it. Rewrite the law if you have a problem with that.”

    Time machine version:

    Thomas Jefferson: “That is certainly not what we intended when we wrote that law!”
    Judge Ruth Bader Ginsberg: “Sorry, that is how law enforcement and this court interpret it. Rewrite the law if you have a problem with that. Hahahahaha!”
    Last edited by Brian4Liberty; 09-05-2018 at 02:43 PM.
    Twitter: B4Liberty@USAB4L
    "Foreign aid is taking money from the poor people of a rich country, and giving it to the rich people of a poor country." - Ron Paul
    "Beware the Military-Industrial-Financial-Corporate-Internet-Media-Government Complex." - B4L update of General Dwight D. Eisenhower
    "Debt is the drug, Wall St. Banksters are the dealers, and politicians are the addicts." - B4L
    "Totally free immigration? I've never taken that position. I believe in national sovereignty." - Ron Paul


    The views and opinions expressed here are solely my own, and do not represent this forum or any other entities or persons.

  6. #5
    Quote Originally Posted by Brian4Liberty View Post
    Apparently taking original intent into account is problematic, as that could easily be twisted without proper evidence of what the original intent actually was, especially given that there will probably be multiple and conflicting historical records about the legislative process. Kavanaugh mentioned this.

    IMHO, the insult to common sense occurs especially when there are contemporary laws, and living lawmakers who disagree with an interpretation of the law they enacted.

    Lawmaker: “That is certainly not what we intended when we wrote that law!”
    Judge: “Sorry, that is how law enforcement and this court interpret it. Rewrite the law if you have a problem with that.”

    Time machine version:

    Thomas Jefferson: “That is certainly not what we intended when we wrote that law!”
    Judge Ruth Bader Ginsberg: “Sorry, that is how law enforcement and this court interpret it. Rewrite the law if you have a problem with that. Hahahahaha!”
    The biggest problem comes in when different legislators understood or intended different things about the Constitution/law in question, I am all for intent being considered when it is clear and absolute but if there is dispute or ambiguity textualism is necessary, what must be absolute is that old laws/the Constitution be interpreted by what the words meant at the time instead of allowing linguistic evolution to change the law.
    Never attempt to teach a pig to sing; it wastes your time and annoys the pig.

    Robert Heinlein

    Give a man an inch and right away he thinks he's a ruler

    Groucho Marx

    I love mankindÖitís people I canít stand.

    Linus, from the Peanuts comic

    You cannot have liberty without morality and morality without faith

    Alexis de Torqueville

    Those who fail to learn from the past are condemned to repeat it.
    Those who learn from the past are condemned to watch everybody else repeat it

    A Zero Hedge comment

  7. #6
    Quote Originally Posted by Swordsmyth View Post
    The biggest problem comes in when different legislators understood or intended different things about the Constitution/law in question, I am all for intent being considered when it is clear and absolute but if there is dispute or ambiguity textualism is necessary, what must be absolute is that old laws/the Constitution be interpreted by what the words meant at the time instead of allowing linguistic evolution to change the law.
    Yep, that is a problem when intent is not a clear cut case. Congress is like a schizophrenic, not an individual coherent person.
    Twitter: B4Liberty@USAB4L
    "Foreign aid is taking money from the poor people of a rich country, and giving it to the rich people of a poor country." - Ron Paul
    "Beware the Military-Industrial-Financial-Corporate-Internet-Media-Government Complex." - B4L update of General Dwight D. Eisenhower
    "Debt is the drug, Wall St. Banksters are the dealers, and politicians are the addicts." - B4L
    "Totally free immigration? I've never taken that position. I believe in national sovereignty." - Ron Paul


    The views and opinions expressed here are solely my own, and do not represent this forum or any other entities or persons.

  8. #7
    Quote Originally Posted by Brian4Liberty View Post
    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.
    Simple answer. The three must be morphed.

  9. #8
    English Common Law and Mediaeval Chivalrous Knightly conduct
    has an impact on our Second Amendment when defining militias.



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  11. #9
    Quote Originally Posted by Aratus View Post
    English Common Law and Mediaeval Chivalrous Knightly conduct
    has an impact on our Second Amendment when defining militias.
    Defining people, right, keep, bear, and arms is pretty fookin simple though, just like "not infringed".
    Quote Originally Posted by Andrew Ryan
    In Washington you can see them everywhere: the Parasites and baby Stalins sucking the life out of a once-great nation.

  12. #10
    Quote Originally Posted by Aratus View Post
    English Common Law and Mediaeval Chivalrous Knightly conduct
    has an impact on our Second Amendment when defining militias.
    Militia: original intent

    Male locals 14 yrs & up, protecting their community.
    There is no spoon.

  13. #11
    Go to 14:20 for relevant discussion.


    https://www.youtube.com/watch?v=0Z684x4HN9E
    Twitter: B4Liberty@USAB4L
    "Foreign aid is taking money from the poor people of a rich country, and giving it to the rich people of a poor country." - Ron Paul
    "Beware the Military-Industrial-Financial-Corporate-Internet-Media-Government Complex." - B4L update of General Dwight D. Eisenhower
    "Debt is the drug, Wall St. Banksters are the dealers, and politicians are the addicts." - B4L
    "Totally free immigration? I've never taken that position. I believe in national sovereignty." - Ron Paul


    The views and opinions expressed here are solely my own, and do not represent this forum or any other entities or persons.

  14. #12
    The subject of Originalism vs original intent is being discussed again right now by Kavanaugh with Senator Ted Cruz.
    Twitter: B4Liberty@USAB4L
    "Foreign aid is taking money from the poor people of a rich country, and giving it to the rich people of a poor country." - Ron Paul
    "Beware the Military-Industrial-Financial-Corporate-Internet-Media-Government Complex." - B4L update of General Dwight D. Eisenhower
    "Debt is the drug, Wall St. Banksters are the dealers, and politicians are the addicts." - B4L
    "Totally free immigration? I've never taken that position. I believe in national sovereignty." - Ron Paul


    The views and opinions expressed here are solely my own, and do not represent this forum or any other entities or persons.



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