Comment by rayiner
16 hours ago
You misapprehend what textualism is. It does not say that every legal case can be decided by interpreting written law. It is merely a philosophy of how to interpret written law when its meaning is what's at issue. What American lawyers call "textualism" is how most continental european courts interpret written laws. It would hardly merit a label, if it wasn't for a long history in the 20th century of jurists departing from written law in making decisions. In this case, there is no dispute about what the written law means. It's about applying a pre-existing legal concept, the freedom of speech, to particular facts.
Another example that highlights the distinction: Justice Gorsuch, one of the Supreme Court's preeminent textualists, is also one of the biggest proponents of criminal rights. Those cases similarly involve defining the contours of pre-existing legal concepts, such as "unreasonable search or seizure." Nobody denies that such questions are subjective--in referring to what's "unreasonable," the text itself calls for a subjective analysis.
For anyone curious to dig into this more, the terms to read up on are "common law" [0] vs "civil law" [1].
Common law is basically just the US, UK, AU, and NZ. Outside the anglosphere it's mostly civil law.
[0] https://en.m.wikipedia.org/wiki/Common_law
[1] https://en.m.wikipedia.org/wiki/Civil_law_(legal_system)
Not to wave anybody off an interesting rabbit hole, but is that the germane difference here? My understanding: common law features a relatively smaller "source of truth" of written law, and relatively more expansive and variably-binding jurisprudence, where judge decisions set precedent and shape the law. Civil law writes almost everything down ahead of time.
I guess civil law gives you less room to explore ideas like "living" statutes and laws that gain and change meaning over time; if there was such a change, you'd write it down?
Regardless: whether you're a textualist or realist, in the US you're still operating in a common law system.
It's the difference OP is referring to. You can be the judge of if it's relevant in the US to talk about civil law as the "norm" given that our legal system is not, in fact, based on civil law. I'm just providing a link to the concepts OP was referencing.
2 replies →
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> Another example that highlights the distinction...
No, that just highlights the hypocritical picking-and-choosing they do to justify it. Gorsuch is a textualist when he wants to be, just like the others.
Do you understand that the word "unreasonable" would be a subjective analysis and that this would be the textualist recommendation? The text itself calls for a subjective analysis. And therefore doing so would be the textualist position.
> Textualism is a formalist theory in which the interpretation of the law is based exclusively on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law.
Textualism in modern context is a tool used by conservative justices used to uphold laws that serve business interests and conservative causes.