No, when the code allows an exploit, that's a bug. Thomas is supposed to help us understand the intent of the code - what the Requirement was. Yes, it's better for us if the code reflects the intent perfectly. But to the degree that's not possible, we need someone to Interpret the code.
Textualists are trying to ignore the fact that there's a difference between intent and implementation.
The Legislature should do a far better job making their intent clear. But to the degree they make mistakes, leaving the intent unclear in some situation, it's good to have Case Law to inform us.
I am not a lawyer. I don't know much about the law. But I do know metaphors, and when someone talks about exploiting the law, this is what comes to my mind.
Tangent, but you said something I find really telling, in conjunction with OP's post.
Textualism to its proponents is very much like exploiting a system; figuring out the exact rules it defines and finding workarounds. It may not even be to a person's own goals (hence the individual not feeling biased when thinking this way), but is enjoyable in its own right in finding those loopholes (like the meme of the referee allowing Airbud to play, "there's nothing in the rule book!").
To its critics, it's like blindly implementing the ticket as written, rather than asking questions and making sure the intent is understood and the problem is being solved correctly.
Which explains, in a surprisingly empathetic way, why I am not a textualist, and why some of my family are, when it comes to political discussions.
My understanding of strict textualists' arguments (especially Gorsuch), is that they view it as a separation of powers issue.
By only looking at the text of the statute, the Court—which consists of unelected officials with lifetime terms—is trying to limit its power. If the text is unclear, they feel it should fall on elected officials to clarify it.
Certainly, but there's a problem with that. Because an outcome will still happen; an outcome determined by the law, -and its interpretation-. Even an interpretation of "we should (overturn lower court's decision/uphold lower court's decision) because the law is unclear" is an interpretation of the law.
After all, it is as equally fair to say "The wording of this law leads us to a clear understanding of the intent to mean X, and if the legislative body feels that to be in error they should pass new legislation to clarify it" as it is to say "The wording of this law leads us to an unclear understanding, and irrespective of intent we will decide !X until the legislative body passes new legislation to clarify it".
While the non-textualists may be explicit in trying to understand the intent of a law in accordance with their own biases, the textualists are still interpreting the law according to their own biases. There have even been some...really interesting cases of logic to try and do so (i.e., earlier generations' understanding of 'sex' matters when interpreting anti-discrimination statutes, but earlier generations' understanding of 'gun' does not matter when interpreting the 2nd amendment). It's incredibly rare (pretty much unheard of in the case of a few of them) for them to decide against their own predictable biases because a law is ambiguous, or a situation is novel.
> At least at the Supreme Court level, whether a justice professes textualism, purposivism, intentionalism, or pastafarianism as a method of statutory interpretation is likely to play less of a role in his or her decisions than ideological druthers. None of these approaches or any other is close to fully determinate, giving a good deal of room for a judge's values to play a major role. Moreover, even when a methodology appears to point reasonably clearly towards a result, judges sometimes disregard their methodological commitments in favor of their ideological ones.
> Does an ordinance that says that “no person may bring a vehicle into the park” apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes. After all, an ambulance is a vehicle—any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so. And perverse results are a small price to pay for the objectivity that textual originalism offers (new dictionaries for new texts, old dictionaries for old ones). But Scalia and Garner later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout their book.
> One senses a certain defensiveness in Justice Scalia’s advocacy of a textualism so rigid as to make the ambulance driver a lawbreaker. He is one of the most politically conservative Supreme Court justices of the modern era and the intellectual leader of the conservative justices on the Supreme Court. Yet the book claims that his judicial votes are generated by an “objective” interpretive methodology, and that, since it is objective, ideology plays no role. It is true, as Scalia and Garner say, that statutory text is not inherently liberal or inherently conservative; it can be either, depending on who wrote it. Their premise is correct, but their conclusion does not follow: text as such may be politically neutral, but textualism is conservative.
Oh, 100%. I shared Thousand Year Old Vampire with a relative that matches this, thinking his love of history would make it an interesting thing, and his response was "I can already think of ways to beat the system", even before he actually read the system. It's like...yeah, it's a single player pen and paper RPG. You probably can. Why...why would you though?
But that's what I mean; exploiting perceived flaws in the system is a greater goal -even when it ruins the game for themselves-. Because there is a greater sense of satisfaction in finding loopholes. And I understand that sense; I just find more value in understanding the underlying goal and intent and delivering on that.
Textualism invariably turns out to be a shuck: people who claim to be textualists are textual only when they can find a way to make textualism produce the answer they wanted.
Legal language is slippery enough that this is almost always possible. On the few occasions when it is not possible, we learn the truth. Scalia famously revealed his true colors on occasion.
>The Legislature should do a far better job making their intent clear.
That would require a wholesale redesign of creator's monopolies in software; CONTU basically said "oh yeah, judges can just use fair use to wriggle out of any market harms software copyright might cause" and Congress went with that.
Furthermore, Congress's actions over the past few decades have generally not squared with any sort of actual copyright reform. The last major actions I can think of were:
- Implementing the EU's reciprocal copyright extension so that Mickey Mouse could get more copyright protection in France (Sonny Bonno CTEA)
- Implementing an overbroad and policy-laundered set of protections for DRM that companies took to mean "all you have to do is put software in a thing and you can sue anyone for making parts for it" (DMCA 1201)
- Extending criminal copyright liability to filesharers (NET Act)
- Granting more copyright term extensions to old music recordings that weren't federally copyrighted until the 70s (CLASSICS Act/MMA)
The last thing I would ever want is to hear Congress's intent on any of these, as I would imagine it would sound something like "Fuck you, pay me". Australia, the EU, and the UK get a lot more shit these days for overbroad copyright laws, but this is mainly because doing so lets them rein in foreign tech companies. The US doesn't do that anymore because tech companies gained enough clout here to stop even more misguided copyright nonsense like SOPA/PIPA. However, with tech companies falling out of favor I wouldn't be surprised if Congress decides to start busting kneecaps again.
> Textualists are trying to ignore the fact that there's a difference between intent and implementation.
I would say that they are not so much trying to ignore the fact as acknowledging the fact but taking the position that it the court's role to interpret the implementation, not to guess at the intent.
Lower courts: "Wait, did you mean LESS THAN, or LESS THAN OR EQUAL?"
Supreme Court: "For now, we'll presume LESS THAN OR EQUAL."
Legislature: "Wait, we meant LESS THAN."
We need a decision NOW. The Supreme Court supplies a decision NOW. The Legislature can change it.
Interpreting the implementation demands guessing at the intent on the edge cases. It can't not. Even if your preference is to always pretend the language is absolute.
> Textualists are trying to ignore the fact that there's a difference between intent and implementation.
It is actually the opposite. Textualists say that intent doesn't mean squat. Originalists will consider intent. Textualists say that intent is unknowable and therefore you must exclusively use the text of the law, regardless of how stupid that might seem.
> Textualists say that intent doesn't mean squat. Originalists will consider intent.
In practice, textualism and originalism aren’t all that different, because most of the same indicia that originalists will look to for signs of “original intent” textualists will look to for signs of what the words of the text mean in their original context (textualists are not, as a class, blind to context). While different observers will weight the individual indicia differently, the variation within the textualist and originalist camps on this is more significant than that between the camps. The camps really mostly differ in how they tend to frame arguments from the same facts to the same conclusions.
I blame Textualists for the existence of legalese.
Laws and contracts are so damn hard to read because they need to close every possible conceivable loophole. You get sentences that use multiple synonyms of the same verb because someone is going to come up with some strange incredibly-specific difference between them.
Imagine some parent telling their kid to not jump on the bed, and the kid says "I'm not jumping, I'm hopping!". That's a kid that's going to grow up being a Textualist.
> Textualists say that intent is unknowable
I think Textualists are claiming this in bad faith, knowing damn well that intent is very well knowable, but argue otherwise to advance their agenda.
Textualists are trying to ignore the fact that there's a difference between intent and implementation.
The Legislature should do a far better job making their intent clear. But to the degree they make mistakes, leaving the intent unclear in some situation, it's good to have Case Law to inform us.
I am not a lawyer. I don't know much about the law. But I do know metaphors, and when someone talks about exploiting the law, this is what comes to my mind.