Forum ► Touchy Subjects ► Textualism vs. Originalism
In the recent SCOTUS case, Bostock v. Clayton County, Georgia, we see an interesting split between textualist and originalist judicial philosophy. Gorsuch's majority opinion states that to discriminate based on sexual orientation or gender identity entails discriminating based on sex. Alito's dissenting opinion points out that lawmakers in 1964 apparently did not intend to cover sexual orientation and gender identity. In other words, a straightforward reading of the text of the law plus some simple logic supports the claim that the law covers sexual orientation and gender identity. A reading that accounts for the goals and intentions of the legislators most likely does not.

These are not the only two possible judicial philosophies, and there will always be cases that require some nuance. But in general, which between these two approaches do you think is a better starting point?
297.861 days ago
Jun 16, 2020 - 3:00 PM
  
I think originalism is fine if it's being applied to the original aim of the law rather than implementation of the law. For example, lawmakers weren't thinking about sexual orientation in 1964 because the idea wasn't really extant . But they were intending to protect minority/disenfranchised classes of people from discrimination. That was the intent of the lawmakers.

Protecting transgender folks is consistent with the original intent of protecting disenfranchised people from sex/gender discrimination, though it may not be consistent with the original implementation.

The thirteenth amendment says it applies to every place subject to US jurisdiction. So if the government made a virtual reality, Matrix like environment which is not a physical place, would we be allowed to enslave people there? No, of course not. The original goal was to end slavery.
297.813 days ago
Jun 16, 2020 - 4:08 PM
  
I think originalism is fine if it's being applied to the original aim of the law rather than implementation of the law. For example, lawmakers weren't thinking about sexual orientation in 1964 because the idea wasn't really extant . But they were intending to protect minority/disenfranchised classes of people from discrimination. That was the intent of the lawmakers.

Protecting transgender folks is consistent with the original intent of protecting disenfranchised people from sex/gender discrimination, though it may not be consistent with the original implementation.

The thirteenth amendment says it applies to every place subject to US jurisdiction. So if the government made a virtual reality, Matrix like environment which is not a physical place, would we be allowed to enslave people there? No, of course not. The original goal was to end slavery.



Original intent is pretty controversial among originalists. Most of them, including Alito, would disagree with that.

That isn't to say that the idea is bad or that the originalists are right, I'm just pointing out that most people who call themselves originalist don't subscribe to original intent.
294.934 days ago
Jun 19, 2020 - 1:15 PM
  
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