constructionism, textualism, and originalism
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constructionism, textualism, and originalism
 
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Re: constructionism, textualism, and originalism
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Re: constructionism, textualism, and originalism
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Re: constructionism, textualism, and originalism
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Re: constructionism, textualism, and originalism
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Re: constructionism, textualism, and originalism
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That article is baffling. Just because a method is hard doesn't mean it is an invalid method. Also, the focus on the particularly contentious issues masks the broad agreement about what most of the constitution meant at the time. We focus so much on the ideologically split decisions, but it is not unusual to have a year with 50% unanimous SCOTUS decisions (orange line below), and the number of decisions that split 5-4 between the "liberal" and "conservative' justices is small. In fact if you look at the graph with just one green line, it shows the number of configurations that made up 5-4 decisions during the term in question; in the final year shown (2018) every "conservative" justice served as a "swing vote" siding with the "liberal" justices for at least one decision, and vice versa. Also, beyond that, nothing in the article is about "Barrett's Originalism." It is broadsided attack about whether we can ever know what anyone meant by anything. I mean, if I go before a judge with a prenuptial agreement stating that all houses will be divided evenly in a divorce, and I argue that I'll take the main house and the vacation house, while my wife takes the doll house and the bird house.... odds are that the judge is going to make an originalist/textualist arugement towards the generally understood meaning of those words at the time the contract was signed, unless I can producing some extraordinary evidence that my wife understood those to be "houses" for the purposes of the contract at the time of the signing (such as explicit letters or voice recordings to that effect). Whether or not some randomly selected schmoes off the street would say that a "bird house" was a "house" on an academic questionairre would never enter into it. If I argued that while clearly those were not considered "houses" when the document was signed, but that last year Merriam Webster changed things to make it clear that a bird house was a house, the judge wouldn't care in the least about that. The judge would care about either a) the standard, understood legal meaning at the time of the signing, b) the meaning as understood by the particular signers of the document at the time, if evidence about that was availible, or c) the understood legal meaning today (following precedence of legal decisions that occured between then and now). Although, admittedly, the judge could also care what they thought the law should do, based on some other agenda. For example, which decision most empowered historically disadvantaged people (as some liberal judges are asserted to think today), or which decision most allowed for issues to be worked out by the people rather than the law (as Oliver Wendel Holmes supposedly prioritized). But those types of agendas don't generally impact mundane legal issues. I mean... people say things like "how do we really know how a word was pronounced in Shakespear's time?" as if it is a vacuous mystery... but, in fact, pronunciation was non-standard enough at the time that playrights routinely included notes explaining how to pronounce particular words in the play. Similary, much of our law is surrounded by explicit, well documented discussions among those who were writing and signing the legislation. There is wiggle room in some places, but in other places we have very clear records of what was intended, and why particular words were chosen. The problem with Barrett's Originalism is that we have no key examples of it to evaluate. She has a nice array of legal papers (I've read a few of them), but doesn't have an extensive record of actually deciding cases.  On Mon, Oct 19, 2020 at 9:55 AM glen <[hidden email]> wrote:
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Re: constructionism, textualism, and originalism
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A particular example:
EPIC SYSTEMS CORP. v. LEWIS (2017) That link will take you to the whole decision, my summary is below. Note that the dispute boils down to what the authors wanted the law to do vs how the law was written, in a situation where it is absolutely clear that the phrasing of the law was intended to restrict the power of the court. This summary is long, but hey, it's a 61 page decision, so this is still a lot shorter: Back in the late 1800's, arbitration was a tool used by labor to hold employers accountable. In the early 1900's, the courts were generally hostile to it. Congress acted to help the worker out by creating the Federal Arbitration Act (FAA) in 1925, which made clear that arbitration agreements were legal and required courts to enforce them. The courts complied, and there are lots of SCOTUS decisions declaring the FAA constitutional. Later on other labor laws were passed, including the National Labor Relations Act (NLRA) in 1935, which broadly protected workers rights to organize and engage in collective bargaining. Fast forward several decades, and now employers have figured out how to write arbitration agreements in their favor. In particular, they have started writing arbitration clauses that ban employees from turning complaints into class action suits. In the past, courts have generally declared such agreements legal, because the FAA was designed explicitly to make arbitration agreements strictly enforced, and the FAA is still law. The NLRA wasn't seen as conflicting with the FAA in such cases. Even 8 years ago, the National Labor Relations Board’s, which is charged with enforcing the FAA, was cool with that. Then 6 years ago, the Board's general council wrote up an argument that maybe the NLRA could conflict with the FAA, meaning that maybe class action lawsuits should be allowed, even if one-on-one arbitration agreements have been signed, because that would be better for workers, and the NLRA could be read that way sort of (even though it hadn't been read that way for the 77 years before). Many individual arbiters started to go with the Board's decision, class action suits started to appear. Some employers forced the suits to the appellate courts, arguing the whole thing was FUBAR. Later Board writings seemed to waffle on the issue, some court's thought they (the judge) had to defer to the board even if they (the judge) disagreed, other judges agreed with the board, others stuck with the 77 years of prior legal precedence. Eventually, this mess at the appellate court level led to contradictory decisions between various circuit courts, which is the type of thing that gets a dispute in front of SCOTUS. RBG and her 3 cosigners all say that the NLRA should be understood to have overridden the FAA in these types of situations, because there is an "and other stuff" clause in the NLRA. Plus, they note, the intent of Congress in writing the FAA was to help workers, and today's arbitration agreements sure don't help workers. [Note to Glen, this is a "living document" view for sure. Those legislators back in the '20s were trying to help particular people, and they wouldn't have wanted their law used to hurt those people in these changed times (this method states), and the court should take that into account, even if such a decision would upturn the law as written and as understood for the past 7 decades.] Gorsuch and his 4 cosigners disagree that the NLRA overrode the FAA in this case, and that's the only notable disagreement as to the facts. They agree the FAA's intent was to help workers, they agree this decision doesn't help workers. They agree that the FAA and NLRA protect union organizing, which would include union lawsuits, which are inherently collective lawsuits. But they don't think the Court is in a position to declare one-on-one arbitration agreements inherently illegal, which is what the employees are asking for, because the FAA exactly requires the court to not restrict the content of arbitration agreements and to enforce them as they are written. As there is a fairly reasonable way to read the NLRA as not conflicting with the FAA on that issue, and as SCOTUS precedence is to interpret laws as compatible whenever they can reasonably be read that way, these 5 justices are going to read the two laws as not conflicting in the way suggested (in line with the 77 years of prior legal precedence). Also, they think the Labor Relations Board's decision is pretty much bunk, because the Board doesn't exist to deal with the NLRA, it only exists to deal with the FAA, and so (the majority opinion asserts) the Board should have stuck as closely to the FAA's language and precedence as it could have. As Gorsuch puts it: "You might wonder if the balance Congress struck in 1925 between arbitration and litigation should be revisited in light of more contemporary developments. You might even ask if the Act was good policy when enacted. But all the same you might find it difficult to see how to avoid the statute’s application." [Note to Glen, this is a straightforward "originalist" view. We know - not just from the word used, but from extensive documentation of statements by the legislators at the time - that Congress exactly intended the law to require courts to enforce arbitration agreements as written. The law could be repealed or modified at any time by today's legislators, but in the meantime it is the job of the court (this method states) to stick to the law as written (unless there is a compelling argument that the law-as-written is unconstitutional, and no such argument was being made in this case).] On Wed, Oct 21, 2020 at 10:38 PM Eric Charles <[hidden email]> wrote:
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