Textualism versus originalism

Many conservatives are upset with a recent Supreme Court ruling authored by Neil Gorsuch. In American Thinker, Selwyn Duke explains,

...Now, the contrast between textual tomfoolery and sound judicial theory can be illustrated with a simple analogy: 10-year-old twins Timmy and Oliver and five-year-old Malcolm are siblings. One day mom hears Malcolm crying wretchedly, investigates, and learns that the two older boys had been punching him.

After scolding the twins, the mother warns, “Now, stop hitting Malcolm! If you hit him again and I come in here and find him bawling, you’re gonna’ be in big trouble!”

Yet an hour later Malcolm is crying his eyes out, again. The mother learns that Oliver understood not to hurt his kid brother and that Timmy is the culprit. Instead of being contrite, however, Timmy says, “Mommy, you said not to hit Malcolm; you didn’t say anything about not choking him and twisting his arm…and that’s all I did!”

Then too-clever-by-half Timmy adds, “The limits of your imagination, mommy, are no reason to ignore your rule’s demands. Only what you said matters — and I’m entitled to the rule’s benefits!”

In the above analogy, Oliver is the originalist, understanding and accepting his mother’s command’s spirit. Timmy is the textualist, doing things not expressly forbidden by her rule’s language even while knowing it contravenes her intent.

The problem with this “philosophy” is that insofar as you don’t consider what was intended, you increase the chances of experiencing the unintended. Gorsuch’s approach is every bit as maddening as Timmy’s (because it’s the same), as it places an unrealistic burden on legislators. If their laws are to meet Gorsuch’s textualist standard for being applied as intended, the legislators must have godlike capabilities: They must see into the future so they can craft language covering every social innovation, bizarre fashion or collective insanity that may eventually, one day, manifest itself.

So, it’s bad enough we have the “law of unintended consequences.” Now we have textualists turning the law of unintended consequences into a legal philosophy and legislating it from the bench.

Read more here.

The only part of this controversy that I understand is that the Gorsuch side was legislating, which is what Congress is supposed to be doing.