Justice Scalia Explains Textualism And Originalism Without Explaining WHY We Must Rely Upon Them.
Scalia is a bit of a personal hero. I adore his clarity.
He appeared on Fox the other day, and explained Textualism and Originalism. (See wiki.) But I was frustrated that he kept stating what he believed, and how these things SHOULD be interpreted, but now WHY they should be interpreted that way.
Now, I’m sure that’s because it’s obvious as the summer sun to him.
But to the average person, it isn’t.
The reason we should (and a new constitution should mandate) that we apply the original meaning to the precise text, is to prevent the court from circumventing the legislative process and effectively writing new law without the legislative process. Further, it prevents creative destruction of the constitution through reinterpretation, rather than legislation. And emphasis on originalism forces lawmakers to write clearer laws.
The constitution contains a process by which it can be modified. That process achieves it’s goals. But our nation has been lost through the reinterpretation and creative expansion of the law via the courts, where the majority would not have approved such laws had they been subject to the constitutional amendment process.
Any law that would modify the original intent of the constittuion, and the text, should be subject to the requrement that the amendment process be followed.
This violates the democratic socialist secular humanist proposition, that the legislature, endowed by the people with power, can enact any law that they wish.
Of course, this makes no sense, because, that is the very meaning of the ‘rule of law’: limits on what laws can be enacted.
And it assumes, incorrectly, that we are wiser than we are.