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Originally Posted by sterlingice
I think most everyone believes the words in the Constitution matter so that's a pretty false claim. How much a particular passage is relevant to a particular situation is open to a lot of interpretation.
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Quote:
Originally Posted by Brian Swartz
The modern movement towards taking said words more seriously was and is specifically a reaction to rulings being handed down that generally disregarded said words.
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Brian hits on some important truth here. The textualist movement was a (IMO) proper reaction to judicial interpretations that went beyond the language of the laws being interpreted. If you read court cases from before the 1980s, you can see a stark difference in the whole approach. You will have cases interpreting statutes that never get around to talking about the text of the statute. It's weird.
But, here's the thing. The textualists won! Justice Kagan herself has said "We are all textualists now." We all looked at what Justice Scalia was saying and thought "Hey, that guy's right about this." And liberal judicial activism was pretty much killed. (And, even though I am a political liberal, I think that's a good thing.). And now everything starts and ends with the text.
The problem is that the conservative legal movement did not stop there. It simply kept pushing further and further to the right. And now we have entered a world of conservative judicial activism.
So it is correct to say that modern (1980s-onward) legal conservatism was a proper and good response to a loosey-goosey liberally-influenced way of judging. And it is also correct to say that the debate has moved on in the last 35 years, and that that framework is no longer the best way to interpret what's happening in 2020 (except to provide historical context).