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Old September 26, 2012, 07:09 AM   #20
Aguila Blanca
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Join Date: September 25, 2008
Location: CONUS
Posts: 9,824
As for Posner, I think it's a good thing he is probably too old to be considered for a SCOTUS appointment at this point in his career. He may be brilliant and he may be scholarly and he may write extensively, but he's a loose cannon. I fall generally in the camp that might be (and sometimes is) called "strict constructionist" or "originalist." And I think that's necessary, ESPECIALLY at the Supreme Court level when questions all revolve around the Constitution. How can any Constitutional matter be decided without looking at what the Constitution itself says on the matter? Posner basically says he doesn't care. That frightens me.

If one is only a "textualist," one takes words (text) at face value. But the meaning of words shifts over the course of time. In some cases this may leave a modern reader wondering, "Now what did they actually say there?" but in other cases linguistic, lexicographical, and grammatical shifts may operate to leave a sentence or a paragraph entirely readable, but change its meaning 180 degrees. That's the danger of strict textualism. I say that with some reservation, because I believe that laws which must be followed by us should be capable of being understood by us. On a lower level, if I do something that falls unfer the purview of a 300 year old law and a strict reading of that law today would say to anyone reading it that my action is legal, BUT a historian might know that 300 years ago the law meant that what I am doing was illegal ... then textualism saves my bacon. But suppose a police officer's brother is a historian and the cop knows the 300 year old meaning. I get arrested, and we argue textualism vs. original intent in court. Not good. I should be able to rely on what I can read in the statutes at the time I am performing an action.

But I think we need to set that aside for the Constitution. If we don't, we then automatically adopt the "living document, subject to modern interpretation" argument, which I find anathema.
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