Originalism is not textualism + Nicki Minaj Released a Carpool Karoake with James Corden by the Time I wrote This

 Scalia's version of originalism is incredibly misguided and nonsensical. The concept of original common meaning as the commentators point out is contrived and frankly does not exist. Considering how people's background, education levels, and religion could influence how they interpreted the various passages of the constitution, the original common meaning is not a concept that can be relied upon. 

When Scalia chooses an original common meaning he uses subjective considerations when deciding what definitions and context to rely upon to do so. Because he can argue that he is using objective common meaning, he does not even bother to articulate whatever considerations/values/canons that inform his interpretation. This means he could fall into the folly he accused subjective legislative intent judges of - legislating from the bench.  

Textualism requires grounding in the text. Textualism, however, also requires understanding the text enough to realize what it presupposes as well as the values and norms it implicitly assumes. Sometimes these values and norms can conflict (just like how statutes do) which requires adjudication that judges must be willing to go. However, when undergoing this adjudication, judges must explicitly note the considerations they use rather than just appealing to vague notions of reasonableness. 

Scalia argues that the necessary and proper clause in the Constitution is what allows for the creation of the national bank. However, if one looks at the opinion of James Marshall when deciding that very case, one realizes that Marshall explicitly noted that the national bank was constitutional even without the necessary and proper clause. This is because the power to institute a bank is presupposed with the power to raise revenue. It is implied when you read the text in its whole context instead of in a vacuum. The other values encoded in the declaration like liberty and equality also must be read in this way.

You are acting as a true textualist when you are reading the text holistically in the context of its values and presuppositions when applying it to certain cases. It can't just be the end of the matter when the text is clear because what does it mean for the text to be clear? 

 James Madison argued that the Constitution does not need the first amendment to protect free speech, because of the constitutional commitments you need in a democracy. Democracies require popular sovereignty, and sovereignty is only legitimate if the sovereign is informed with a free exchange of ideas. Free speech is implicitly presupposed in a democracy. To engage in textual construction and read this from the Constitution, you must look at what is explicitly stated and what is clearly presupposed and implied in the text.  

Reasonableness is prospectively situated and therefore cannot be relied upon to adjudicate disputes. That is why articulating the values that you are reading and incorporating from the Constitution is necessary to be a good judge and a good textualist. A reasonable construction (not reasonableness) required weighing various considerations and values - reasonable people can disagree, but they need to be in the same place regarding the enterprise they are engaged in i.e the values, considerations, and canons that they are using. 



Also for tutorial I wrote about democratic values and how there is an argument that democratic values like the ones Brettschneider articulated should be read in the Constitution, and I am attaching a section of that paper below - 


The strength of textualism is that it is grounded in the text, but one may argue that it is too focused on “objectivity” or an “objective indication of the words,” which may result in relevant considerations being disregarded during statutory interpretation (29). A powerful part of Scalia’s argument is that textualism is necessitated by democracies. Textualism ensures that the law actually is what it says and that there are no “secret laws” created by the subjective considerations of judges. However, a question remains about how we understand what a democracy is. If democracy is procedural, then we are required to reasonably construct every statute that comes out of it. However, if a democracy is a value theory, it means we need to reasonably interpret the statute within the context of the fundamental values that legitimate democratic processes like liberty and equality.

When democratic values are being thwarted, a question arises as to whether that affects the way we need to interpret the text in practice. If the statute in question is at cross purposes with the fundamental value of equality, does that affect the way we read the text? For example, take a situation where a defendant is convicted, but they had inadequate representation, which some may argue, caused them to have an unfair trial. When reading the sixth amendment in the context of the fundamental value of equality, how would that affect the way in which we interpret it? Scalia would consider this type of value judgment an extratextual consideration that distorts the statute. His approach does not consider whether this type of “distortion” is necessary to make statutes align with democratic principles. Textualism does not allow considerations like the values in the Declaration of Independence or the historical and structural context that surrounds a statute, labeling them as extratextual. Democratic rules and values are a part of the context in which a statute ought to be interpreted. Having these considerations results in a very different outcome than if you were a proceduralist (proceduralism possibly resulting in harmful or repressive outcomes). A central aspect of Scalia’s textualism (one that he admits to) is that it would cause for an unjust statute to be applied unjustly. It could even cause neutral statutes like the sixth amendment to be applied unjustly (in ways that reify racial and class disparities). Invoking democratic considerations in statutory interpretation could circumvent this issue.

The law is a body that is perspectively situated. Only relying on a reasonable construction of the statute would result in a different construction depending on the standpoint you occupy. When adding in extratextual considerations like democratic values, the variability of perspective increases. Textualism does not allow for this adjudication of viewpoint and value, making it a powerful inditement and criticism of the theory.

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