Textualism and originalism In the context of interpreting the U.S. Constitution, what is the distinction between textualism and originalism? Are the two approaches applied much outside of the U.S. in other contexts?
It is generally held that Textualism is a kind of Originalism, which is a set of theories: these theories have something in common, which sets them apart from Minimalism or Living Constitiutionalism. The problem is that it is very difficult to establish a defining canon for Originalism, whereas Textualism is a newer development prominently associated with Scalia. There are three related theories: Original Intent, Textualism, and Original Public Understanding, subsumed under the umbrella of Originalism. The textual difficulty is finding a (somewhat) contemporary advocate of Original Intent or Public Understanding who maintains that theory in the face of Textualism, so that we can see the essential principles that distinguish the theories. Smith ("Why originalism won’t die…" says that Originalism is the view, embraced by Antonin Scalia, Robert Bork, Clarence Thomas and many academic legal theorists, that the meaning of the Constitution should be settled by reference to the original understanding of those who enacted its provisions As characterized by R.G. Natelson, The original meaning (or original public meaning) is how a reasonably intelligent, involved member of the public would have interpreted a provision. Primary evidence of original meaning is how words were used in common discourse and the definitions in contemporaneous dictionaries and legal sources. Circumstantial evidence includes the drafting and ratification conventions, public debates, and so forth. The public meaning theory seems to have not gotten much traction, though it might be subsumed under an attempt within Original Intent theory to find evidence for that original intent. Scalia (the arch-Textualist) characterizes his "opponent" originalism (not textualists) saying "Originalists believe that the Constitution should be interpreted to mean exactly what it meant when it was adopted by the American people." (quote from Scalia AUSTIN AM.-STATESMAN, May 6, 2005, copied from Smith) Bork (The tempting of America) says that under the Original Intent view, "a judge is to apply the Constitution according to the principles intended by those who ratified the document" (emphasis added) A variant sub-theory is strict constructionism, and in Common-Law Courts in a Civil-Law System, Scalia cites the case of Smith v. United States, 508 U.S. 223 to illustrate the difference between strict construction and textualism. In this case, case where defendant was said to have used a firearm during and in relation to a drug trafficking crime when he offered it in exchange for cocaine. Scalia, opining in the minority, rejects the majority’s "strict" interpretation of the word "use", says The phrase “uses a gun” fairly [emphasis added] connoted use of a gun for what guns are normally used for, that is, as a weapon. When you ask someone “Do you use a cane?” you are not inquiring whether he has hung his grandfather’s antique cane as a decoration in the hallway. In Scalia’s theory, which is a formalist but not a mechanical theory, words are to be interpreted "fairly", rather than "strictly": A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means. Focusing on the difference between Scalia’s theory as a representative of textualism (sometimes called "original meaning" theory), and his characterization of other broadly-construed originalist theories (strict constructionism, as identified in Common-law courts…, Scalia in particular denies the relevance or even the existence of “intent” behind legislation. The first and most obvious reason this is true is that, with respect to 99.99 percent of the issues of construction reaching the courts, there is no legislative intent, so that any clues provided by the legislative history are bound to be false followed by some interesting extracts from Senate floor debate that indicates how a certain bill was passed without anyone apparently reading the relevant committee report. In short, the difference between original intent and original meaning has to do with whether the words used in a statute are dispositive, or are they a guide to discerning the intention of the legislature where that intention is to be enforced.
"Tamper" implies action taken with intend to improperly change the meaning. "Alter" simply means "change". "Mutilate" simply means "damage" but in this context implies "Make unreadable". "Obliterates" here means 'make unreadable" or "remove". As a practical matter, there is not much if any difference between these words in this context, and no authority will spend any time at all considering whether some action is 'tampering" or "mutilation". The word "or" is used precisely to avoid such arguments. Any of these shades of meaning is equally forbidden. English-language laws and regulations often specify multiple synonyms or near-synonyms , connecting them with "or" so that anything within the more general scope of the concept is included. Charles Rembar, in his book The Law of the Land, asserted that this dated to the period in England shortly after the Norman Conquest, and that lawyers tended to include equivalent terms from Latin, Norman French, and English. He mentions such combinations as "Give, devise, and bequeath" and "Promise, covenant, and agree" as typical and often-used examples of this tendency. When this sort of multiple terminology is used, it is generally only useful to try to understand what is covered by the combined phrase, and of no value to try to determine which term covers which part of the concept. In the cited cases, anyone who tries to change a passport to say something that the government didn't intend, or who tries to damage or destroy a passport, or anything similar, would be guilty of the forbidden act. And similarly, anyone who tries to make an MVID read differently, or to make it unreadable, would be guilty.
Here is an example: The Author agrees to hold harmless and indemnify the Journal and The University against any legal claim or action or expense of any nature arising from any claim of infringement of copyrights or proprietary rights resulting from publication of the manuscript or claims of libel, obscenity, unlawfulness or invasion of privacy arising out of anything contained in the manuscript as furnished by the Author. Suppose Author infringes the copyright of Jones, by copying large parts of it into Author's work. Author is now in legal trouble because he illegally copied stuff into his manuscript, but Journal is also in big (bigger) legal trouble, because it made many copies of Jones' word and sold them. Jones will now sue everybody, mostly the Journal (since Journal has money, and Author doesn't). Thanks to the indemnity clause, when Journal gets sued, all of the costs (of litigation and judgment) have to be born by Author. The primary purpose is to protect Journal from suits by third parties. Nothing can keep you from getting sued, but such a clause (theoretically) means that the person whom your contracting with has to cover the cost of his wrong-doing (assuming that he is not a turnip). The term "hold harmless" is there to guarantee that Author can't decide to sue Journal for publishing a libelous or infringing article. The functions are similar, but not totally the same: this and references therein could be interesting reading, by way of more details. He argues against using both terms, and instead you should use only "indemnify". In this case, the court said "When two words are used in a contract, the rule of construction is that the words have different meanings", which caused the court to assign distinct meanings to the words (which are typically used as though they mean the same thing), which doesn't seem to have been the original intent.
1911-1913 very shady time in USA political history. They could amend the Constitution to make a law Constitutional. There's nothing shady about that in the least. In fact, it is the point of constitutional amendments: to provide a mechanism to change the constitution when it prohibits something that an overwhelming majority of people -- well, of congress and of state legislatures -- think should be allowed. A constitutional amendment can reverse the provisions of Article I; it can reverse a constitutional ruling by a court (or at least reverse the ruling's effect); and it can certainly overcome arguments by Jefferson and Jackson, which have very little legal weight if any. Wasn't the whole point of the revolutionary war ... It doesn't matter what the point of the war was. What matters is that the constitution controls what the government can and can't do, and the constitution can change. The constitution countenanced slavery until it didn't. The constitution required senators to be chosen by state legislatures until it didn't. The constitution forbade income tax until it didn't.
See this working paper by Silvia Ferreri for an excellent write-up of this issue. The key point is that because each linguistic version of legislation is equally authentic, none can be taken as the authentic version. The court then resolves this by applying two principles: comparing the linguistic versions and giving deference to legislative intent. This is necessarily a case-by-case analysis. The paper calls attention to Case C‑445/09 arising from the Netherlands, where 9 different linguistic versions are compared and shows that the straightforward Dutch reading of the legislation in question isn't compatible with the other linguistic versions or legislative intent. In paragraph 25, the decision also contains a concise summary of the general principle of interpreting laws in multiple languages: According to settled case-law, the need for uniform application and, accordingly, for uniform interpretation of an EU measure makes it impossible to consider one version of the text in isolation, but requires that it be interpreted on the basis of both the real intention of its author and the aim which the latter seeks to achieve, in the light, in particular, of the versions in all languages (see, inter alia, Case 29/69 Stauder [1969] ECR 419, paragraph 3; Joined Cases C‑261/08 and C‑348/08 Zurita García and Choque Cabrera [2009] ECR I‑10143, paragraph 54; and Case C‑473/08 Eulitz [2010] ECR I‑0000, paragraph 22).
Legal Theory and Philosophy of Law There are two different meanings of the word Jurisprudence A heavy word for the study or knowledge of the law. If a judge or law lecturer were to refer to &quot;the role of freedom of contract in our jurisprudence&quot; for example, this is the sense intended (this is the sense @ohwilleke refers to in his answer). The second meaning - and the more usual meaning nowadays, particularly in in academic circles (I note you are studying law so this is probably the meaning you are asking about) - could be described as the philosophy of law. In Legal Philosophies (1997) J W Harris says (p.1) Jurisprudence is a ragbag. Into it are cast all kinds of general speculations about the law. What is it for? What does it achieve? Should we value it? How is it to be improved? Is it dispensable? Who makes it? Where do we find it? What is its relation to morality, to justice, to politics, to social practices, or to naked force? Should we obey it? Whom does it serve? These are the questions of which general jurisprudence is comprised. They can be ignored, but they will no go away... Jurisprudence has to entrench on [the disciplines of moral and political philosophers] at many points, as well as upon those of social and political theory. It is a scavenger, as well as a ragbag; having no perimeter to its field of enquiry, save that what is studied must have a bearing on some general speculation about law. If jurisprudence has a heartland all its own, it is legal theory Much discussion about moral claims of the law (and moral claims on the law) takes the concept of law itself for granted. Yet, answers to such questions may turn on what picture of law we have. Legal theory asks: What is the nature of law (everywhere, or just in the modern state)? In a three year English undergraduate law degree, Jurisprudence has traditionally been studied as a compulsory module in the third year which concentrates on legal theory. One thing students immediately notice is that the exact scope and definition of jurisprudence is disputed (which can be discomforting since all the other modules they have hitherto studied - Contract, Tort, Crime, etc- have clear definitions). This uncertainty is exacerbated by the fact that legal theories which come under the umbrella term of legal positivism have as one of their central themes the proposition that jurisprudence should only be concerned with positive law and that legal theory need not (and should not) look outside to ideas of morality or natural law. In other words not only do different legal theories have different explanations of the phenomenon of law, but they actually disagree about the scope of what it is they are supposed to be explaining! Traditionally jurists thought of God as the ultimate law-giver whose laws were written on human hearts (conscience). This is the &quot;natural law&quot; which human legislators add to by creating &quot;positive law&quot;. For example murder is contrary to natural law but you need human laws to define the different categories of homicide, the prescribed penalties, and the procedure by which accusations are tried and decided. You also need human laws to define the circumstances in which a contract comes into being etc. Note: positive in used in its old original meaning of &quot;laid down&quot; as distinct from natural. It is nothing to do with the modern meaning of positive as being the opposite of negative. William Blackstone, in Vol. 1, Commentaries on the Laws of England (1765) Page 27, wrote: This will of his maker is called the law of nature. For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws. Considering the creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. But as be is also a being of infinite wisdom, he has laid down only such laws as were founded in those relations of justice, that existed in the nature of things antecedent to any positive precept. These are the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one his due; to which three general precepts Justinian1 has reduced the whole doctrine of law. This will of his maker is called the law of nature. For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws. Considering the creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. But as be is also a being of infinite wisdom, he has laid down only such laws as were founded in those relations of justice, that existed in the nature of things antecedent to any positive precept. These are the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one his due; to which three general precepts Justinian has reduced the whole doctrine of law.... Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. There are, it is true a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found necessary for the benefit of society to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy; for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former. To instance in the case of murder; this is expressly forbidden by the divine, and demonstrably by the natural law; and from these prohibitions arises the true unlawfulness of this crime. Those human laws that annex a punishment to it, do not at all increase its moral guilt, or superadd any fresh obligation in foro conscientiae [in the court of conscience] to abstain from its perpetration. Nay, if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine. But with regard to matters that are in themselves indifferent, and are not commanded or forbidden by those superior laws; such, for instance, as exporting of wool into foreign countries; here the inferior legislature has scope and opportunity to interpose, and to make that action unlawful which before was not so... In the Province of Jurisprudece Determined (1832) John Austin wrote at length about both natural law and positive law and sought to draw a line of distinction between them: AS one of the Law-Professors at the University of London, I planned and partly delivered a systematical Course of Lectures on General or Abstract Jurisprudence. In the ten lectures delivered at the beginning of my Course, I distinguished positive law (the appropriate matter of jurisprudence) from various objects with which it is connected by resemblance, and from various other objects to which it is allied by analogy. Out of those ten discourses, I have made the treatise which I now submit to the public, and which I venture to entitle “the province of jurisprudence determined.” Determining the characters of positive laws, I determine implicitly the notion of sovereignty, with the implied or correlative notion of independent political society. For the essential difference of a positive law (or the difference that severs it from a law which is not a positive law) may be stated generally in the following manner. Every positive law, or every law simply and strictly so called, is set by a sovereign person, or a sovereign body of persons to a member or members of the independent political society wherein that person or body &gt; is sovereign or supreme. Or (changing the phrase) it is set by a monarch, or sovereign number, to a person or persons in a state of subjection to its author. To elucidate the nature of sovereignty, and of the independent political society that sovereignty implies, I examine various topics which I arrange under the following heads: First, the possible forms or shapes of supreme political government; second, the limits, real or imaginary, of supreme political power; thirdly, the origin or causes of political government and society. Examining those various topics, I complete my description of the limit or boundary by which positive law is severed from positive morality. For I distinguish them at certain points whereat they seemingly blend, or whereat the line which divides them is not easily perceptitible. Austin's account of positive law (essentially a command of a sovereign accompanied by a threat of sanction for non-compliance) has been criticised as being simplistic and of failing to provide an adequate explanation of law and legal systems, but to be fair to Austin he never claimed that his theory of positive law could alone explain what happens in legal systems. He recognised the influence of natural law/morality as part of an explanation. He simply wished to define the limits of Jurispudence as an academic subject, which he did narrowly. Some jurists, however, have subsequently sought to produce theories of law which seek to explain what the phenomenon of law is, and how it works, based only on positive law. Such theorists are called &quot;positivists&quot; and their school of thought is called legal positivism. In 1960 Hans Kelsen published Reine Rechtslehre which was translated into English in 1967 as The Pure Theory of Law. As the word pure in the title suggests Kelsen's theory is in the legal positivism school of thought - i.e. it seeks to explain law and legal systems by reference only to positive law. Kelsen himself was a moral relativist but not all legal positivists are necessarily atheists or moral relativists. Some may personally think that natural law/morality is important but nevertheless think that the discipline of law should be &quot;self contained&quot; and should be capable of being completely and satisfactorily explained without brining natural law/morality etc. into it. Natural lawyers critique the theories of legal positivism by saying that they are incomplete as they leave so much unexplained. Legal Positivists reply that their theories have a restricted scope precisely because everything outside the scope of the theory is not really law at all and so does not need to be explained by the theory. So you can see that the definition of Jurisprudence is rather woolly but philosophy of law with particular emphasis on competing theories of what the phenomenon of law actually is might be a short rough definition to convey the general idea of Jurisprudence as the word in generally used today.
Scenario 1. It doesn’t matter what it says. If it was not legally ratified, it is not legally in force. There is no absolutely no paradox at all. It is essentially just a draft amendment and would be thrown out if any attempt was made to enforce it and challenged.
The comments have basically covered this, but: It's a slightly weird parallel structure ("who shall not be at least 25, and been a citizen for 7 years, and who shall not be a resident"). The Constitution is not written in fluid 21st-century English. But the obviously correct way to parse the sentence is that no one can be a representative who isn't a 25-year-old or older who's been a citizen for at least 7 years; furthermore, no one can be a representative who wasn't a resident of the state they represent when they were elected. With some parts of the Constitution (like the Second Amendment), the drafting results in actual disputes about the intended meaning. With other parts (like here), only one reading makes any sense. It's the same with the requirements to be President. The Constitution says "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President," which could be read as "you're not eligible unless, when the Constitution was adopted, you were either a citizen of the US or a natural-born citizen." But that's a silly reading, so "at the time of the Adoption" is read as only applying to "a Citizen of the United States:" natural-born citizens are eligible period, and people who were born before the US was a thing but were citizens by the time the Constitution was adopted were grandfathered in.