Hacker News new | ask | show | jobs
by f154hfds 1460 days ago
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