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PaperclipPerfector  1yr ago (text post)   2993 thread views

Friday Fun Thread for July 28, 2023

Be advised: this thread is not for serious in-depth discussion of weighty topics (we have a link for that), this thread is not for anything Culture War related. This thread is for Fun. You got jokes? Share 'em. You got silly questions? Ask 'em.

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And it is completely incorrect to say that "To say MQD and textualism are inconsistent is simply to say you don't like textualism because it's illogical." Textualism attempts to determine what words in a statute mean by trying to determine how the words were understood when the statute was written. Once that is determined, that meaning controls the outcome, as a matter of logic, even if it is clear that no one intended or even contemplated that outcome at the time. The obvious example is of course Bostock, holding that VII of the Civil Rights Act of 1964 forbids discrimination based on sexual orientation and gender identity.

Yes, and how does textualism determine what words in a statute mean? It uses things like logic, common sense, and MQD. The reason I compare it to declaring textualism illogical is because logic is one thing which underlies textualism. Textualism as a philosophy relies on determining the meaning of words, yes, but logic and MQD make up the foundation which textualism relies upon even before its theories/doctrines come into play at all.

In contrast, to textualism, to which legislative intent is irrelevant

Is this true? My understanding was that textualism does consider historical context etc. when determining the meaning of words. If not, I will have to rethink my support of textualism.

re: "words have meanings", that was just an example of a broad guideline. It's impossible to objectively determine the exact meaning of every word, but judges must do so as best they can. I drew a connection between that and MQD, which seems similarly broad and similarly necessary.

Finally, if it is so crazy to think that textualism and MQD are inconsistent with each other, why does Justice Barrett not think it is crazy? See the second paragraph of her concurrence in Biden v Nebraska: "I take seriously the charge that the doctrine is inconsistent with textualism."

The excerpt reads:

Yet for the reasons that follow, I do not see the major questions doctrine that way. Rather, I understand it to emphasize the importance of context when a court interprets a delegation to an administrative agency. Seen in this light, the major questions doctrine is a tool for discerning—not departing from—the text’s most natural interpretation.

I think this is pretty consistent with what I'm saying.

Is this true?

Yes. See here and here.

In that case pure textualism definitely seems lacking, though I'd argue that (as with most things) a push to "always interpret laws only as their text" is really only a push to do so more often. In any case MQD seems to synthesize textualism with common sense in a way that solves that problem.

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