No it doesn't. That standard is a made up self-serving fiction. They are making policy in these situations and making an appeal to a false authority that they themselves are creating by selectively referencing historical records, usually from a time where the problem at hand would be totally incomprehensible to the people they reference.
I agree the Originalist approach is just cherry-picking history to arrive at the predetermined conclusion. Judges are famously not historians, except when they say they are in order to enact a policy preference. In some cases this has led to some comical references to medieval-era legal thinking as a pretext to support a desired reading of the law on the basis of "ancient tradition."
Formalists are obsessed with the idea that law is a form of mathematics and there already in the law exists a solution and whether that serves the purpose of law in the real world isn't all that relevant. They claim they aren't making policy and just calling balls and strikes or whatever. If it means that innocent people need to die because of finality, well, thems the breaks even if it should shock any person with a shred of humanity.
This is most what I mean when I criticize the Supreme Court for some of its members having spent too long in the rarified atmosphere of appellate jurisdiction. And that's really what Justice Sotomayor was criticizing Justice Kavanaugh about that led to her apology. She accused Kavanaugh of having lived his entire life in privilege and thus being completely ignorant of the real-world application of court decisions to real people. Most of us live much more precarious lives than federal justices.
I heard from a law student that a professor had said in class that your legal analysis is wrong if it gives the wrong answer. That is, if you analyze a law in a way that produces a patently unacceptable result, then you need to fix your analysis. This is an appeal to Consequentialism, which is another way of saying legal realism. Justice Thomas goes to absurd lengths in his opinion in
Garland v. Cargill to point out in excruciating (and largely irrelevant) mechanical detail—I'm an engineer by profession—how differently a gun operates under a bump stock than normally, and thus how the existing statutes and rules cannot finely apply. Maybe the right answer would have been that a law that forbids ordinary people from owning machine guns prevents them from buying something that turns their gun into a machine gun because the law is predicated on the presumption that machine guns are not something ordinary people should have because—you know—consequences.
In reality they want that result because they think finality is more important than the life of the little people. Since saying that would draw a storm of criticism they shake their heads sadly and say the result is forced. When they are the ones forcing that result.
Most of them believe their own BS. Which in law is an occupational hazard. They get told Scalia was clever even if they disagree with his decisions. Lawyers also really like to avoid the idea that they have much moral responsibility about anything as long as they act within their own ethical framework. The legal community doesn't want to get into morality because it makes it harder to create billables if they have to consider the harm done.
And this leads to what so many practitioners I know refer to as "Lawyer Brain." It's so easy, so comfortable, and frankly so fun to descend into the legalistic minutia of a case irrespective of its moral import. My spouse being an overworked, underpaid public defender exposes me to some of this. Criminal defenders need to develop emotional calluses and as such come across as distinterested in the consequences of the outcome.
Related to this is Institutionalism, in which courts may rule the way that preserves the perception of their authority, majesty, and infallibility but perhaps at the expense of an individual. This is not necessarily a bad thing in general. We want courts to be respected because that's where a lot of their authority derives. And the respect due the court is directly determined by how respectfully the court acts. But when a court, say, refuses to grant a defendant a new trial after some substantial irregularity in order to preserve the illusion of infallibility, this is a problem. In the D.C. Circuit we have poor Judge Boasberg trying to combat obvious contempt while his superiors tell him he can't do that.
So still, what's the difference between originals, textualism, and what you think they should do. Which seems like the same thing just without any rationalization other than, because we think it ought to be this way.
As
@Suddenly points out, the difference is in the honesty of the approach. Originalists say their hands are tied because the original public meaning of some law is objectively what should govern their decision. This is usually not true, as the historical meaning can be easily cherry-picked, and the original public may have had no concept of the problem now before the court. Textualists say their hands are tied because the plain meaning of the text is all that its original enactors meant to leave to us. But again this is usually not true. These modes of interpretation inherently deny that any interpretation is taking place. As Suddenly puts it, they pretend this is some cold, impartial calculus that invariably gives the same answer every time.
In contrast, a Consequentialist approach looks at the meaning of the law as it would apply today to avoid a clearly undesirable or intolerable consequence, such as denying a convict the right to present new evidence of his factual innocence. A Purposivist approach would project the spirit of the law onto the facts to take a common-sense approach. As in the ambulance example, a Purposivist approach would recognize the textual deficiency in the statute and agree that the law probably did not mean to restrict emergency vehicles responding to an exigent circumstance.
These modes of interpretation importantly do not deny that they apply the court's discretion and judgment. They acknowledge that while they believe one interpretation to be what should prevail, reasonable minds can differ—and may in fact differ if judgment is reversed. In my mind this stands in stark contrasts to interpretational schemes that pretend no interpretation or discretion is happening.
The better choice would be to amend that law to make it clear it does not apply to emergency response vehicles responding to emergencies. Otherwise, who else is exempt from the laws? The mayor, cops having the department BBQ?
It was admittedly a toy example, but the shortcomings of legislative foresight are exactly the bread-and-butter of trial lawyers. The existence of a legislative solution to a problem before the court does not absolve the court from ruling on it then and there, based on existing facts and existing law. A formalist or textualist approach would require holding the ambulance driver criminally liable.
Copyright law serves as a good example here. Of course copyright grants to the holder many exclusive rights intended to allow him to profit from the covered labor. A composer who labors long months to write a symphony should have the right to receive payment for his labor by preventing others from easily copying it for free, and to perform it publicly and charge money for people to come hear it. But courts realized long ago that a narrow interpretation of these rights went against the broader public purpose. Intellectual-property laws are meant to stimulate the product of intellectual property as a public good. Some uses of covered property without permission actually served that purpose, such as allowing reviewers to quote portions in their reviews and allowing teachers to use them as non-profiteering examples to students.
All this existed as common law (i.e., judge-created policy) for two centuries before Congress enacted the common understanding of Fair Use into Title 17 of the United States Code.
I think you will find all sorts of legal types that strongly disagree with the notion that judges are necessarily making policy decisions.
I haven't found any, and I hob-nob with a lot of lawyers. Law is simply the expression of politics and that extends to the court's application of law to facts. The notion that judges can create policy within the framework of existing laws is a bedrock principle of jurisprudence. This is diluted by the fact that the overwhelmingly vast number of cases brought at the trial level present no remarkable question of fact or law. As such they are disposed of in a straightforward fashion. But when a novel question of law arises, judges
must make a policy decision.
The presumption that judges enact policy is baked into the Constitution, and in many state constitutions. The authority of the executive to appoint judges presumes that the choice will include policy preferences. The requirement for Senate confirmation is meant to check the executive's power to pack courts.
This article develops a more complete portrait of state courts and examines judges' roles that are beyond judging.
judicature.duke.edu
It's slightly facile to point to hypothetical cases in which legislatures obviously fail to cover all the bases. As a landlord I'm bound by requirements to perform certain actions within time limits specified in days. And there have been some deficiencies from time to time in whether that means business days or calendar days. Thankfully most of the laws and regulations are patched up, but such things will always exist in legislative product. Similarly you will have conflicting laws or rules that must be deconflicted. Bodies of law are gigantic, and even the most conscientious legislatures cannot fully reconcile their new work with all existing work. Yes, its nice when legislatures are amenable to fixing such mistakes.
But it's facile because legislatures simply cannot foresee all applications of their desired policy to all potential sets of facts, nor is it useful for them to do so. In these cases we rely upon common law. We absolutely need a judge to make a policy decision that holds for those specific facts under those specific laws. They don't hold for other facts, such that a legislature would need to act in the general case. But in that specific case (and any subsequent ones that are deemed sufficiently similar) that policy holds. There's no theoretically perfect legislature or theoretically divine language that can obviate the need for a court to make a policy decision on some unique set of facts.
No reason laws have to written in legalese but even if they do the constitution would be more about the law regarding the making of laws. Its clearly the rule book by which the government in the US is meant to operate.
Laws must be written in legalese (or at least in precise terms) because they must unambiguously invoke, via well-known terms of art, concepts that will apply very finely to potential actions. Potential lawbreakers (or their lawyers) must be adequately put on notice what exact actions are lawful and which are not.
Constitutions not so much. I don't disgree with your analogy to the rule book. In fact, this is why our Bill of Rights was tacked on. The body of the Constitution is the principles by which government operates, in part to protect rights. The Bill of Rights enumerates some of the rights to be protected. In the authors' minds, these were very different kinds of things.
But the argument now is that the Constitution is being so finely parsed and so disingenuously applied that it seems to have fallen away from its original purpose. The notion that only lawyers and courts can properly understand and apply the One True Meaning of the Constitution is not likely a principle the Founders would have recognized. We have a plethora of 4th Amendment jurisprudence that argues endlessly and in great detail over what constitutes a "search" within the meaning of the amendment. Most of us would take a much more practical approach: "Are ya looking for something? If so, then it's a search." This is more likely what the Founders intended people to understand by the 4th Amendment.
I'm still struck that the alternatives really seem to be exactly what critics of originalism and textualism say they are, which is rationalization for pre-existing desired outcomes. Except with out even a rationalization.
The argument is that the modes of interpretation that are postured as avoiding predetermined outcomes clearly fail to avoid it, and employ their assurances only to render the reasoning allegedly impervious to criticism. The argument is further that these allegedly dispassionate "mathematical" modes are frankly abandoned wholesale when they would produce the answer unfavorable to the majority's policy preferences. The majority applies Purposivism when it suits them (
Bruen) and Consequentialism when it suits them (
Trump v. Anderson).
