| 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. |
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