Posts Tagged ‘textualists’

Do Proponents of “Originalism” Have Healthy Memories?

February 6, 2017

Originalism refers to the notion that judges should attempt to interpret the words of the Constitution as they were understood at the time they were written.  The first question is how can judges do this?  The judges need to accomplish both time travel and mind reading.  That is, they need to travel back in time and somehow understand what these now deceased individuals were thinking.

But even if this could be accomplished, is it desirable?  According to the Constitution at that  time, slavery was legal, but blacks were counted as two-thirds of a human being, and woman could not vote.  So what is the point of going back in time?  Textualists are judges who only consider  the words of the law being reviewed should be considered, neither the writers’ intent nor the consequences of the decision.  So words rather than their intended meanings and results are what is important?

Fortunately, these gross injustices were corrected by amendments to the Constitution. This was the result of the Founding Fathers realizing that there would be a need to amend the Constitution.  It seems clear that they viewed the Constitution to be a fluid document that would need to be changed over time.

So why do these concepts still prevail? Individuals who advocate these concepts are actually insulting the Founding Founders.  HM is certain that if Founding Fathers were asked about this mind reading task, they would tell people of the future not to try to travel back in time.  HM is able to make this assertion from the reading of the Constitution without having to take recourse to time travel and mind reading.

Unfortunately, these beliefs of originalism and textualism are litmus tests for some Senators in approving Supreme Court nominees.  HM thinks that any judge holding to these beliefs does not belong in Traffic Court, much less the Supreme Court.  This acceptance of originalism provides a key insight as to the break between the legal system and justice.

In case the reader has still not inferred the answer to the question posed in the title, the answer is no.

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