1. Textualism and originalism don't claim to be the preeminent form of jurisprudence any more than any other jurisprudence.
Yes they do. They have all but taken over law schools, which is why Justice Kagan quipped, "We're all textualists now." She was commenting on the eviction of all other schools of thought from schools of law.
Note: to avoid the awkward phrasing I'm going to say only "textualist" or "originalist" and assume the other is also meant, except where noted.
What judge would knowingly use lesser form jurisprudence than the preeminent?
The whole notion of pre-eminence is a textualist contrivance. It's exactly the insidious policy foist that
@Suddenly referred to. None of the other interpretational traditions claim to be the best. Only textualism makes the claim that there can be a pre-eminent tradition and that it's the one by virtue of its claim to avoid discretionary judgment.
Hypocrisy does not demonstrate the failings of Originalism just the failings of the judge.
Textualism is hypocritical from the start. It proposes to eliminate discretionary judgment and thereby reduce or eliminate prejudiced outcomes. But it does nothing to guarantee this. Your criticism of the other -isms was that they did nothing to stop prejudicial decisions. Neither does textualism, but textualism commits hypocrisy by providing cover for someone who wants to hide a prejudice. It allows the judge to point to something from history and say, "See, it is thus!" and that ends the analysis.
The other -isms acknowledge that a judge's discretion is involved and places that discretion on display for subsequent approval or disapproval.
Originalism is the attempt to interpret the law via the meaning at the time it was passed. Textualism is the attempt to interpret it by the plain meaning of the language.
These are what they aspire to be, and in an ideal world might actually succeed at. But each of these systems proposed to arrive at more legally acceptable outcomes by claiming to remove judicial discretion. In fact, they merely hide it. Both are predicated on the assumption that the information required to support the analysis is available in the historical or statutory record, that it accurately represents what is sought, and that the parties or the judge are capable of discovering it and properly understanding it. Because those are hard problems, it's hard to posture them as a guarantee of legal value in the outcome. And because they are hard problems, it's easy to hide a nefarious scheme in them.
To be sure, many other -isms suffer from the same or similar circumstances since ascertaining the intent of the law is part of most interpretive traditions. (Not textualism
per se, because it presumes that the original intent and meaning of the law should have been expressed in its language, and failing that it is irrelevant.)
I'm saying that if someone is claiming to do that, there is a standard by which we can tell if they are doing that.
There are standards of evaluation for all interpretational models. However, only textualism intentionally makes it hard to do that by hiding behind a veneer of objective scholarship. If it takes a PhD in history to set straight a judge's warped view of the relevant history, then the judge's rationale is not materially open to scrutiny.
The alternative to attempting to apply the law as written or intended is something other than that.
Asked and answered. The competitors to textualism also attempt to discover original or written meaning, but they don't fetishize it and they don't stop there.
Pragmatism, consequentialism, ect don't rule out either originalism or textualism.
Your cart is before the horse. Textualism precludes other interpretational modes. After you discover the "plain" or "original" meaning of the text, you aren't allowed to depart from the rule thus derived. If the text of the law says, "no vehicles in the park," you are not permitted to use pragmatism and say, "Surely they didn't mean emergency vehicles." You aren't allowed to use legal moralism and say, "But the driver didn't intend to cause the consequences the law enjoined; he was following a higher purpose."
They should definitely come after the attempt to figure what the lay was suppose to mean.
They do.
Originalism stops there, though. Once the original meaning is "found," no further contextualization or refinement is supposed to ensue, even if the outcome is patently absurd. In fact, balancing tests from pre-textualist jurisprudence are being eliminated in favor of a "because we say so" textualist approach. The so-called
Lemon test was tossed out in
Kennedy v. Bremerton School District. A bulwark standard that stood for decades went away on the most obviously biased of pretexts.
Balancing tests expressly require judgment, which is important because these judgments are narrowly tailored to the fact patterns under examination. These are not just vibes, though. They rely on precedent, evidence, and logic that can be attacked. Yes, they rely on judgment that has the potential to vary from judge to judge. But they are honest about where that judgment comes from. Textualism just says, "Sorry that's what the text says," while hiding the possibility that the argument in that case is no less discretionary than a non-textualist approach.
Not flaw of originalism or textualism, a flaw of humans.
Yes, which makes textualism's promise to eliminate prejudice all the more laughable.
Justice Scalia took an obviously purposivist approach in
Heller. He ruled that the spirit of the 2nd Amendment extended its protections to modern weapons too, even those that posed a far greater danger to the public than weapons in the 18th century. Textualism didn't work for his preferred policy, so he abandoned it. Originalism didn't work, so he abandoned it.
Language being what it is, meaning is not always clear, laws conflict with one another.
Which is why judges properly have discretion to propose policy that resolves these and other inherent flaws.
Two originalists can and often do come to different conclusions. Which I'm sure is true no matter what philosophy the judge claims.
A judge's discretion in non-textualist traditions is not just a vibe. A judge that might want to rule that our ambulance driver did not break the law would still be expected to develop a legal basis for that judgment. He could cite to other city laws exempting emergency vehicles (Structuralism). He could cite to court precedents absolving emergency vehicle operators of putative violations (Institutionalist). He could point out that the law, strictly interpreted, would lead to absurdity (Pragmatism) and must therefore be considered in context. In the most wibbly-wobbly-crimey-wimey tradition, he could find that the ambulance driver's sense of duty and the objective danger posed balanced favorably against the harm done to the park and created no intent toward crime (Moralism, Constructivism, etc.)
However, when two textualists disagree, one or both of them is clearly wrong. Or textualism per se is a failure because it can silently allow such failure. In that case, one or both of them has failed to ascertain the plain or original meaning of the law, either because their research is silently deficient or because the historical or textual record is inherently ambiguous. In that further case, the judge must apply his discretionary judgment to determine which of possibly many variants should apply.
Things like the balancing test are fine after the actual meaning of the words has been investigated.
Nope. Textualism is hostile to balancing tests because balancing tests place human discretionary judgment at the nexus of judgment, not the objectively-determined meaning of the text. It's all "history and tradition" now, as illustrated in
Bruen.
Again, hypocrisy does not make someone wrong it just makes them human.
Again, while individual humans are fragile and hypocritical, textualism is inherently flawed and also systematically hypocritical because it denies the flaws and fails to check human hypocrisy.
They aren't lying, they believe they are trying to figure out original meaning, they think they are doing their best to avoid bias.
No. Thomas in
Bruen. Roberts in the Obama rules case. Not only are they utterly failing to avoid bias, they're explicitly using the flaws of textualism to mask their bias under an undeserved cloak of impartiality.
To be sure, the court's supermajority does use other traditions. They just don't say so, and generally try to paste a pseudo-textualist veneer over it, because to admit that textualism doesn't answer the question is anathema. The Trump immunity case was reasoned almost entirely from the constructivist tradition—that the executive's immunity from criminal prosecution had to be pieced together from different passages in the Constitution. The textualist veneer came in the guise of the Vesting Clause, which Roberts has already tried to make support the Unitary Executive doctrine. But the heart of the argument is pure constructivism: the immunity doctrine must be construed from the Vesting Clause, the Preclusive Powers doctrine, and the general understanding of the separation of powers. There's no actual text to support Roberts' position.
As if to prove your point, the dissent is textualist. The Constitution provides explicitly for official immunity in some cases, but specifically not for the President. The textualist canons of construction say the omission is significant. The Constitution specifically provides that the President shall be subject to criminal prosecution. There is actual text to support the dissent's position. The dissent applied originalism to note that the Federalists explicitly made a former President subject to criminal proceedings specifically to distinguish the office from a monarchy. And it applied consequentialism to argue that sweeping immunity would create a lawless zone around the Presidency and that this was obviously not something the Founders intended—just as the city fathers patently did not intend to criminalize an ambulance driver responding to a life-threatening emergency in the park.
Yes, two textualists can differ, and the difference requires an application of discretion. This means the promises of textualism simply fail to materialize. And in this case it illustrates some pretty clear bias from the majority, masked under the guise of textualism.
