Textualism

Interpret according to plain meaning, not intent of legislature
How the people at the time would understand the text
Believe there is objective meaning of text
Focuses on what was wrote, not the intention
Does not
- Believe in looking into intent of writers
- look at legislative history surrounding law
Pioneer → scalia
Inconsistent application is often criticised
Old fashioned ideas: Textualism focuses on adhering to the constitution, but could be hard to apply today
Could ignore the true intent, things applied to wrong situations

Cases:

Bostock vs Clayton County

Gerald Bostock was a gay man in a gay softball league and worked as a welfare services coordinator and was given awards for his work
Was fired for “conduct unbecoming of its employees” after being critici\sed for being gay at work
Filed wrongful termination under Title 7, forbids employees from firing based on race, color, religion, sex, national origin
Decided sex to include sexual orientation
- Based directly on text of title 7

Griswold v Connecticut

Said Connecticut law was unconcstitutional as it criminalized the furnishing of birth control to married couples, was based on view of Due Process Clause of 14th amendment that provides a general right to privacy
Clark Griswold is a character in Christmas Vacation

Dennis v United States

Congress could, consistent with the 1st amendment guarantee of freedom of speech, criminalize the conspiracy to advocate the overthrow of the US govt
Justice Black di

Original Meaning

Focuses on historical understanding of how the Constitution’s words were understood by the public at the time of the Founding
Judges should apply original meaning and leave changes to the amendment process, not reinterpretation
The meaning of the constitution does not change, even as society evolves
Focuses on shared public meaning of the text, not the personal intentions of individual Framers
Believes this meaning can be discovered using historical sources from the era

Criticism

Focus on history and tradition as a basis for assessing constitutional rights
- Can be abused in modern settings
Underscore in the difficulty of establishing original meaning
- Scholars cannot always agree on original meaning
- People living at time of constitutions adoption may not have agreed on a particular meaning either
- Originalists drawing meaning from incomplete/conflicting sources and notf ully solidi

The supreme court relies on prior decisions to resolve new constitutional quesitons
- Rules, principles, standards
- Guide how similar constitutional questions should be handled in the future
- Stare decisis → stand by things decided
- Consistency, predictability, stability, legitimacy

Criticism

Restricts necessary changes and adaptations to societal norms and values changing over time
FOllowing precedent can keep unfair laws in place
Judges may rely too much on past cases and could prevent criticism

Judicial decisions are made based on the practical consequences of different interpretations
- Can be absed on future costs or benefits to society or political branches
- Courts choose then interpretation that would lead to the “best ” outcome
- Cab be based on the extent to which the judicial branch should decide the law in that context

Criticisms

Independent Business v Sebelius→ know this

Interpreted Medicaid as a tax in order to justify it so that they wouldn’t have to strike down all of Obamacare, just part of it, avoiding controversy

Interprets the constitution based on America’s core values, traditions, and ideals such as liberty equality dignity and democracy
Draws meaning from the nation’s evolving character rather than strictly from constitutional text or original public meaning
Often used in cases involving civilnrights and individiual liberties where constitutional language is broad or abstract
Criticized for being subjective and giving judges too much discretion to define national values rather than apply clear legal rules

Criticism