Textualism and the Constitution

Those of you who have been reading CrimLaw for a while will remember that I fancy myself as a textualist.  I believe it's the best way to interpret a statute and usually find that when the interpretation varies from a straightforward reading of the text it is done in order to favor the prosecution.  A perfect example of this is Va. Code sec. 19.2-270.1 which puts forth some very restrictive requirements before a photograph can be used to prove an item existed for a larceny or burglary.  The section is ignored in its entirety by every single court I've been in because it was judicially overruled: the photo can be introduced without the restrictions as an illustration of the item taken.  See e.g. Saunders v. Commonwealth, 1986, 1 Va.App. 396.  Of course, this exception cannot be taken from any reading of the statute (I challenge you to try).

Anyway, what got me started on this post is a post over at Freespace discussing original intent "interpretations" which are contrary to the plain meaning of the text:

But the Borkian "original intent" types argue that Congress can outlaw indecency under the First Amendment, because the framers didn't expect that clause to protect such speech.

I urge you to go read it in its entirety.

CrimLaw