Can Originalism and Textualism Be Simultaneously Applied?

    My main issue with Scalia is that he seems to deploy two theoretical manners of tackling interpretations that fundamentally go against each other. 

    Originalism, as Scalia sees it, accepts the doctrine of stare decisis as a much-needed “exception” in order to make originalism a pragmatic, and not only theoretical, tool when it comes to judiciary interpretation. (140) It makes sense to accept stare decisis as a needed exception but does not explain how originalism’s acceptance of stare decisis makes it compatible with textualism. 

    If textualism, as Scalia believes, is rooted in only what the text says, then the principle of stare decisis would not hold. Stare decisis holds that a judge should defer to previous judgment when ambiguities arise. Therefore, a judge is now considering the decisions made in regard to the text, not the text itself. Adopting the notion that the opinions of previous judges can help in present judicial making goes against the notion that the text holds all the information needed. This is shown by Scalia’s acceptance that stare decisis makes originalism actually applicable. Hence, by Scalia’s own concession, it seems illogical to claim to follow the text explicitly while recognizing that relying on previous judicial, not textual, decisions is sometimes necessary to achieve a reasonable decision. Therefore, if Scalia, in his definition of originalism, includes the acceptance of stare decsis, it is hard to see how he can also call himself an originalist. 

    

    My main issue is not with Scalia’s individual definitions of textualism and originalism; my problem arises when the claim is that both can be applied simultaneously. Both textualism and originalism are more “restrictive” regarding what they allow to be interpreted. The fact that they are both more restrictive approaches does not make them compatible approaches. 

    Let us consider the argument for amendments to the Constitution. It could maybe be argued that some originalists would not accept amendments made to the Constitution since it was not present at the time of the concept of the Framers’ Constitution. On the other hand, a textualist would see an amendment as more than appropriate since a judge is still following the language of the text, an amended version of the original law. Hence, in this one small example, a vast divide between what is acceptable to interpret arises and highlights how fundamental contradictions between the two would most likely result in different interpretations and, therefore, different judicial decisions. If two different interpretations are reached, it seems that textualism and originalism are not as compatible as Scalia believes. Therefore, for the stare decisis conflict and other seeming contradictions between originalism and textualism, I do not believe it is possible to claim to follow both approaches to judicial interpretation.

    Aside from this point, I wish to highlight another argument that Scalia makes. In it, he describes the case of a young victim having to face their accuser in court. Scalia dissented from the majority opinion, stating that he believed that the Constitution calls for face-to-face confrontation in court. Now, although I personally do not agree with the idea that a child should be forced to face their abuser, I cannot say I disagree with Scalia’s ruling. One of Scalia’s main points is how the judiciary branch’s job is to apply the law, not make them. Therefore, I believe that Scalia points out how restricting the judiciary's power enables the public’s power. 

    In this case, as most people would agree, a child should not be forced to face their abuser. Therefore, instead of relying on unelected judges to state that, we as a public should instead elect legislators that would create laws that prevent this situation from arising. In a sense, Scalia’s approach helps highlight to the public where the legislative branch is failing. Suppose we as a society believe that children are afforded some priority when it comes to cases like these. In that case, we should elect and hold our legislators accountable to pass legislation that deals with this issue. Scalia’s argument was less about whether the child should have been in court, and I think more questions why this was even an issue for the Court in the first place. 

    If it is a priority for our society not to have children face their abusers, then as Scalia argues, the public should rely on legislators to pass statutes that establish that. It is not the judiciary system's responsibility; voiding the judiciary of this power allows for clarity within our legislative system and highlights where gaps are present. In this case, as I think Scalia would argue, the series of events should have been that the case was overturned and that in the wake of outrage, the public should then organized to change the laws. Seeing that the court could not protect the child should highlight the public of gaps within our legislative system and encourage them to seek change through legislation, not judiciary methods.