| On some level I'm sympathetic to the argument of the textualists (vs the "living document" philosophy. As you say there's a process for amending the Constitution. But there are a number of problems with this idea. The first problem is those who are all about states rights tend to be selective in applying that standard. Congress passed the Fugitive Slave Act in 1850 that required free states to return slaves to return those slaves to their owners. The Supreme Court ruled (in 1859) that Wisconsin couldn't overrule a Federal court or statute. States rights anyone? Second, if you haven't already look into the Redeemer movement of the post-Civil War era and how the Supreme Court in the name of a literal interpretation of the Constitution [1]. After the Colfax massacre of 77 or so African Americans: > Justice Joseph Bradley, a Grant appointee, wrote that the United States had not clearly stated that the accused, in slaughtering more than 100 black men, had “committed the acts complained of with a design to deprive the injured persons of their rights on account of their race, color, or previous condition of servitude. The point here isn't that textualism isn't bad per se. The point is that it itself is an interpretation of the Constitution. You also see the effects of this as language itself changes. Two examples spring to mind: 1. The Establishment clause of the First Amendment. "Establishment" here has a very specific historical meaning stemming from the Anglican Church being the established religion of the United Kingdom. "Established" here meant the Church was responsible for what are otherwise actions under civil authority in the United States. Example: registering marriages. In England, you'd have Roman Catholic who would have two ceremonies. One in their own religion and another "official" ceremony in an Anglican Church so the marriage was official. 2. We essentially have a national firearms free-for-all all stemming from a pretty liberal interpretation of a "well-regulated Militia" from the Second Amendment. [1]: https://www.theatlantic.com/ideas/archive/2018/09/redemption... |