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by erispoe
3402 days ago
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You're summarizing the debate between "originalism" and "pragmatism" theories of judicial interpretation. The former looks at what people supposedly intended and confines the meaning of the text to that. It's the weapon of choice of conservative justices (because of course, the Founding Fathers couldn't intend to give marriage equality). The latter looks at what the text does, in today's context. It's the approach preferred by progressives because it accounts for how the effects of a text can change with time (and society). In general I would agree with you, you oughta look at what a legislation does in practice. But here, because there is a sense of urgency (sending a gay refugee back to Somalia, for instance, is akin to signing their death warrant) and because the executive order hasn't been around for a while, I think it's ok to refer to what the administration intended the order to do. Because we don't have a lot of field evidence. As we see concrete evidence for the effects of a legislation, I think you're right and the weight of what it was theoretically intended should decrease pretty quickly (and it usually does). The administration also didn't present to the court any sort of evidence supporting the claim that it would prevent terrorism. |
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In the case of this immigration restriction, the debate isn't how the EO ought to be enforced, but rather whether it is legal (specifically whether it infringes on constitutional rights without having a sufficient national security justification). The intent of the EO is important, since it would be trivial to make a silly EO that technically doesn't infringe when taken literally. As an extreme example, the EO could ban anyone who had entered a Muslim place of worship in the last year. Surely some Muslims haven't done that, and surely some non-Muslims have done that. But it would be very clear that the intention of this EO would be to discriminate against Muslims, and it would be ludicrous to claim otherwise.