That is in fact exactly the problem with strict textualism: It's actually not that strict.
I am sympathetic to the criticisms of the "living document" ideology. It's populism masquerading as jurisprudence. Or, as Scalia put it, it's no philosophy at all.
HOWEVER, textualism is not as clean as it's advocates will argue. Case in point: The post-Civil War era Supreme Court (the so-called "Redeemer" court) went out of it's way to essentially dismantle legislation aimed to protecting minorities in the name of textualism.
This was the origin of hate crime legislation, which came about because of jury nullification, essentially.
Consider the aftermath of the Colifax massacre [1]:
> This decision, in United States v. Cruikshank, the legal historian Lawrence Goldstone argues, provided a guide for the campaign of racist terrorism that would suppress the black vote and enshrine a white man’s government for generations. “The Colfax defendants would have had to announce their plan to violate their victims’ rights on account of the color of their skin in order to be culpable,” Goldstone wrote. “Justice Bradley had thus communicated to any Redeemer with violent intent that to avoid federal prosecution one need simply to keep one’s mouth shut before committing murder.”
I am sympathetic to the criticisms of the "living document" ideology. It's populism masquerading as jurisprudence. Or, as Scalia put it, it's no philosophy at all.
HOWEVER, textualism is not as clean as it's advocates will argue. Case in point: The post-Civil War era Supreme Court (the so-called "Redeemer" court) went out of it's way to essentially dismantle legislation aimed to protecting minorities in the name of textualism.
This was the origin of hate crime legislation, which came about because of jury nullification, essentially.
Consider the aftermath of the Colifax massacre [1]:
> This decision, in United States v. Cruikshank, the legal historian Lawrence Goldstone argues, provided a guide for the campaign of racist terrorism that would suppress the black vote and enshrine a white man’s government for generations. “The Colfax defendants would have had to announce their plan to violate their victims’ rights on account of the color of their skin in order to be culpable,” Goldstone wrote. “Justice Bradley had thus communicated to any Redeemer with violent intent that to avoid federal prosecution one need simply to keep one’s mouth shut before committing murder.”
[1]: https://www.theatlantic.com/ideas/archive/2018/09/redemption...