Sunday, January 02, 2005

Textualism is Superior to Original Intent:

Although I'm not a gung-ho advocate of the jurisprudence of Justice Scalia, the judicial philosophy of textualism, a variant of which Scalia advocates, as opposed to looking to the collective "original intent" (subjective expectations on how the various provisions of the Constitution would apply at that particular time and place) of the Framers, is better for those of us concerned with protecting individual rights.

This is because many of the "rights" provisions of the constitution are written in very broad, generous terms. And the "original intent" argument is often used to read those broad rights provisions in the narrowest manner, often literally subverting the text of the Constitution and giving the impression that our Framers really didn't mean it.

Take the First Amendment's Free Speech clause for instance: "Congress shall make no law...abridging the freedom of speech...." The norm derived from the plain language of that clause is "government can't censor." So let's apply that norm to factual circumstances. Congress wants to pass a law regulating indecency on the airwaves. Can they do this? Well our free speech norm says no, Congress can't censor.

But the Borkian "original intent" types argue that Congress can outlaw indecency under the First Amendment, because the framers didn't expect that clause to protect such speech.

If you look at the Congressional laws passed by the same people who passed the First Amendment, the argument goes, we can conclude that the Framers thought that government could properly censor anything it wanted, after the fact, that government was forbidden only from enacting prior restraints on speech.

In other words, Congress really can make laws that abridge the freedom of speech (even though the text of the Constitution states otherwise).

See what I mean when I argue that "original intent" is often used to subvert the text of the Constitution, giving the impression that our framers didn't really mean it when they wrote, "make no law...abridging the freedom of speech."

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