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Posted: 5/28/2003 9:05:55 AM EDT
1) Do you consider yourself more of a "textualist" or an "originalist?" 2) How can courts sort out questions of originalism, when so many individuals are involved in crafting the constitution or a statute? 3) Do you think the same rules of interpretation should apply to statutes as apply to constitutional interpretation? If not, how should they differ? I'd like to hear from lawyers and non-lawyers on this one.
Link Posted: 5/28/2003 5:48:52 PM EDT
Insofar as statutes are concerned, textualism usually arises when separation of powers becomes an issue. Because only the legislature has the power to pass law, any interpretation which deviates from the statute's plain meaning is, in effect, drafting new a law, something which separation of powers forbids. When it comes to interpreting the constitution, most originalists start out as textualists. However, when a term or language is ambiguous, that is, susceptible to more than one reasonable interpretation, then textualists are in a bind. Hence, most then resort to diving the original intent, which isn't as hard as it seems....
Link Posted: 5/29/2003 8:05:34 AM EDT
I agree with that Avtomat, I consider myself an "original meaning" textualist. In other words, if terms of art are used--like "right to keep and bear arms" or "due process"--we should look at the meaning at the time the authors used the words. At the same time, just because the founding fathers did not forsee and might not have approved of something protected by the language of the text--like, say, internet pornography--it does not mean it's not constitutionally protected.
Link Posted: 5/29/2003 8:23:03 AM EDT
Publius, wouldn't this be somewhat of a change in position from your 2nd Amendment debate of a few days ago in the transferrable nuke thread?
Link Posted: 5/29/2003 4:47:56 PM EDT
Originally Posted By Publius: I agree with that Avtomat, I consider myself an "original meaning" textualist. In other words, if terms of art are used--like "right to keep and bear arms" or "due process"--we should look at the meaning at the time the authors used the words. At the same time, just because the founding fathers did not forsee and might not have approved of something protected by the language of the text--like, say, internet pornography--it does not mean it's not constitutionally protected.
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porn is a bad example. If you cant reasonably say that the founding fathers would have approved, then it aint protected. (and even if it was, they would say that the states are free to regulate it).
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