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by Bartweiss
2957 days ago
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Sure, we agree on that. But Law X will interact with condition Y somehow, so the question is what property of X is preserved when addressing Y. This is a pretty fundamental debate between constitutional scholars, not just a lecture on how laws work. The classic example of a textualist or original meaning position is a broad view of the Second Amendment. Ignoring the 'militia' issue, Law X says "the right of the people to keep and bear arms shall not be infringed". Condition Y is the development of new types of arms after the amendment was ratified. Textualists and original meaning scholars say that the text of the law should be preserved - the right to keep arms should remain uninfringed. Original intent scholars say that the intended effect on the world should be preserved, and then we have to decide what that is - to keep flintlock weapons legal, to keep military-grade weapons of the day legal, or something else? My point is that the decision today used original intent reasoning - law X established a right without without imagining Y, so Y should not be supported by X. But the textualist position is to apply the existing text of X to Y whether or not Y was even envisioned. Gorsuch and Thomas are long-standing textualists, and I'm arguing that they took a basically non-textualist position today for political reasons. |
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