[AnimalMuppet]

You seem to be saying that all originalism must be fake, a cover for political bias. You fell into the GP's third paragraph. Without ever even attempting to refute it, you just restated the position.

GP had a point. You didn't answer it at all.

Both GP and I assert that a principled originalism is possible, one that is not just a cover for political bias, and that such is superior to a super-legislature. Do you have any answer for our position? "These guys are using originalism as a cover for their bias" isn't an answer. (Unless you're asserting that a principled originalism is impossible - which you haven't stated, let alone supported.)

[capguy255]

You seem to be trying to make my argument into a strawman, and throwing around words like "principle" and "politics" as though they are magic incantations that shut down debate.

My argument is a) textualism and originalism are distinct (you don't refute that) and b) judicial reasoning based on precedent and text is more reliable and workable than attempting purely historical analysis (again, you don't refute that either.) I'm happy to defend that. Instead of asking me to debate myself, it would be interesting to hear an actual effort to defend originalism.

How do you prove or disprove original intent? How do you sufficiently vet historical research to ensure that it's accurate? If a central finding in a judicial case is based on historical analogy that subsequent research shows to be false, what is the proper correction -- does the court on its own make an effort to correct the record, do they throw out the original case, or do you treat every case as one-off attempts to divine the truth based on an imagined historical record?

Originalists aren't bound by past judicial decision making -- every case is a blank slate where the job of the judge is to evaluate the current case against the history of the law, not the history of the court. OP's point was that judges should not be political, and to that extent -- other judicial philosophies are better at constraining politics than originalism.

As to if originalism can produce correct results -- judges can have all of the "principle" in the world, but if they approach law from a broken framework that isn't bound by consistency, the law ends up being a hodge-podge of logically inconsistent decisions with efforts at distinguishing one case from another, and principle ends up being for naught. Ad-hoc historical reasoning should be the realm of politicians and advocates rather than judges.

[f154hfds]

I think a principled (and honest) originalist judge would agree with you insofar as saying originalism is imperfect. It's certainly imperfect and we all know that alternative viewpoints can arise in good faith exploration of history let alone amidst a bad faith culture war scenario.

The problem is no better technique exists that limits the freedom of justices and ensures legislatures have real power! This is explored and explained at length in Scalia's seminal work Reading Law (and you can find easy snippets of his arguments on YouTube).

A few examples:

* If textualism is important as you say, then what era is most important to interpret from? Today with today's meanings of words or the time period when the legislation was actually codified by a deliberative body?

* A legislature's word choice is often the result of compromises between various opposing parties. Is it OK for a justice to ignore this when interpreting those same texts?

* Words change over time [1]. Certain types of change are so common that we have special linguistic words for them! If a word changes to the opposite meaning (which is a common occurrence) does it make the judiciary more or less powerful to have the freedom to use either the historical meaning OR the contemporary meaning when interpreting the text? A pure originalist can only choose one of these options.

These are just some examples of originalism boiled down into a philosophy meant to provide consistency and weight to the deliberative body that once upon a time came up with the texts of these laws in the first place.

[1] https://en.wikipedia.org/wiki/Semantic_change

[AnimalMuppet]

Well, your post sure read like a strawman, so that seemed like a rather reasonable assumption. (This one is much better.)

> OP's point was that judges should not be political...

Yes.

> ... and to that extent -- other judicial philosophies are better at constraining politics than originalism.

That's where I think you've got some proving to do. In particular, if you care about the text but not the original intent, how do you interpret the text? What other than the original intent should rule how you interpret the text? And how is that other thing - whatever it is - less subject to being politicized than the original intent is?

> How do you prove or disprove original intent? How do you sufficiently vet historical research to ensure that it's accurate? If a central finding in a judicial case is based on historical analogy that subsequent research shows to be false, what is the proper correction -- does the court on its own make an effort to correct the record, do they throw out the original case, or do you treat every case as one-off attempts to divine the truth based on an imagined historical record?

I don't think the historical record or the documentation of intent is that hard to come by, even for the Constitution. Things since then have even more record.