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This page makes extensive use of footnotes; please be careful when editing the page to ensure that both the article and the related footnotes remain internally consistent. -->'', by Howard Chandler Christy . Originalists argue that the meaning of the Constitution is as static as the scene portrayed in Christy's famous painting.]] In the context of U.S. Constitutional Interpretation , originalism is a family of theories which share the starting point that a Constitution (or Statute ) has a fixed and knowable meaning, which should be adhered to by judges. A Neologism , "originalism" is a Formalist theory of law, which is closely intertwined with Textualism . Today, it is mostly popular among U.S. political Conservatives , but some liberals, such as Hugo Black and Akhil Amar , have also subscribed to the theory. Originalism is a family of theories, principally:
What these theories share in common is a view that there is an authority that is contemporaneous with the ratification which should govern its interpretation; the divisions relate to what exactly that authority is: the intentions of the authors, the understanding of either the authors or the ratifiers, or the plain meaning of the text. ORIGINS OF THE TERM In Originalism and the Fourteenth Amendment B. Boyce, ''Originalism and the Fourteenth Amendment'', 33 Wake Forest L. Rev. 909, Brett Boyce described the origins of the term "originalist" as follows: The term "originalism" has been most commonly used since the middle 1980s and was apparently coined by Paul Brest in Current discussions have tended to reject the labels "interpretivism", which often embraces nonoriginalist textualism, and "intentionalism", which suggests reliance on subjective intentions rather than objective meaning. See Gregory Bassham, DIFFERENTIATED FROM STRICT CONSTRUCTIONISM Originalism is often, and inaccurately, used as an interchangeable synonym for Strict Constructionism . {Link without Title} {Link without Title} {Link without Title} {Link without Title} {Link without Title} Both theories are associated with ) Scalia has averred that he is "''not a strict constructionist, and no-one ought to be'';" he goes further, calling strict constructionism "''a degraded form of textualism that brings the whole philosophy into disrepute''." A. Scalia, A MATTER OF INTERPRETATION, ISBN 0691004005, Amy Guttman ed. 1997, at p.23. Originalism is a theory of ''interpretation'', not '' construction ''. ''See'' Barnett, '' The Original Meaning of the Commerce Clause ''. As Scalia has said, "''the Constitution, or any text, should be interpreted strictly [n or sloppily; it should be interpreted reasonably''"; once originalism has told a Judge what the provision of the Constitution means, then they are bound by that meaning - but the business of Judging is not simply to know what the text means (interpretation), but to take the law's necessarily general provisions and apply them to the specifics of a given case or controversy (construction). In many cases, the meaning might be so specific that no discretion is permissible, but in many cases, it is still before the Judge to say what a reasonable interpretation might be. A Judge could, therefore, be both an Originalist '''and''' a strict constructionist - but s/he is not one ''ex officio'' of the other. To put the difference more explicitly, both schools take the Plain Meaning of the text as their starting point, but have different approaches that can best be illustrated with a fictitious example. Suppose that the Constitution contained (which it obviously does not) a provision that a person may not be "''subjected to the punishments of hanging by the neck, beheading, stoning, pressing, or execution by firing squad''". A Strict Constructionist should interpret that clause to mean that the ''specific'' punishments mentioned above were unconstitutional, but that other forms of capital punishment were not. For a Strict Constructionist, the specific, strict reading of the text is the beginning and end of the inquiry. For an Originalist, however, the text is the ''beginning'' of the inquiry, and two Originalists might reach very different results, not only from the Strict Constructionist, but from each other. "Originalists can reach different results in the same case" (''see'' What Originalism Is Not — Originalism Is Not Always An Answer In And Of Itself , ''infra''); one originalist might look at the context in which the clause was written, and might discover that the punishments listed in the clause were the ''only'' forms of capital punishment in use at that time, and the only forms of capital punishment that had ''ever'' been used at the time of ratification. An originalist might therefore conclude that capital punishment ''in general'' — including those methods for it invented since ratification, such as the electric chair — are not constitutional. Another originalist may look at the text and see that the writers created a list. He would assume that the Congress intended this to be an exhaustive list of objectionable executions. Otherwise, they would have banned capital punishment as a whole, instead of listing specific means of punishment. He would rule that other forms of execution '''are''' constitutional. FORMS OF ORIGINALISM Originalism is actually a family of related views. Original intent See Also: Original intent The "original form of originalism" was known as intentionalism, or " Original Intent ", and entailed applying laws based on the subjective intention of its authors. For instance, the authors of the U.S. Constitution would be the group of " Founding Fathers " that drafted it. The intentionalist methodology involves studying the writings of its authors, or the records of the Philadelphia Convention , for clues as to their intent. Problems with original intent However, a number of problems inhere in intentionalism, and ''a fortiori'' when that theory is applied to the Constitution: most of the Founders did not leave discussions of what their intent was in 1787, and while a few did, there is no reason to think that they should be dispositive of what the rest thought. The theory went into freefall after a string of Law Review articles attacking Robert Bork and the intentionalist process. See, e.g., Powell, ''The Original Understanding of Original Intent'', 98 Harv. L. Rev. 885 (1985) prior to his (Bork's) abortive Senate confirmation hearing to the Supreme Court. Specifically, original intent was seen as lacking good answers to three important questions: whether a diverse group such as the framers even ''had'' a single intent; if they ''did'', whether it could be determined from two centuries distance; and whether the framers themselves would have supported original intent.See also, W. Serwetman, '' Originalism At Work in Lopez: An Examination of the Recent Trend in Commerce Clause Jurisprudence '' In response to this, a different strain of originalism, articulated by (among others) ,See R. Barnett, ''An Originalism for non-Originalists'', 45 Loy. L. Rev. 611; R. Barnett, RESTORING THE LOST CONSTITUTION . came to the fore. This is dubbed original ''meaning''. Original meaning See Also: Original meaning Justice Oliver Wendell Holmes argued that interpreting what was meant by someone who wrote a law was not trying to "get into his mind" because the issue was "not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used."O.W. Holmes, COLLECTED LEGAL PAPERS, ISBN 0844612413, p.204 This is the essential precept of modern Originalism. The most robust and widely-cited form of originalism, "original meaning" emphasizes how the text would have been understood by a ''; see ''Matters rendered moot by originalism'', infra) to establish out what particular terms meant. See ''Methodolody'', infra). Justice Scalia , one of the most forceful modern advocates for originalism, defines himself as belonging to the latter category: :"''The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.''" See A. Scalia, A Theory of Constitution Interpretation , speech at Catholic University of America, 10/18/96. Though there may be no evidence that the Founding Fathers intended the Constitution to be like a statute, this fact does not matter under Scalia's approach. Adherence to original meaning is explicitly divorced from the intent of the Founders; rather, the reasons for adhering to original meaning derive from other justifications, such as the argument that the understanding of the ratifiers (the people of the several States at the time of the adoption of the Constitution) should be controlling, as well as consequentialist arguments about original meaning's positive effect on rule of law. Perhaps the clearest way to illustrate the importance of the difference between original intent and original understanding is to use the example of the Twenty-seventh Amendment . The Twenty-seventh Amendment was proposed as part of the Bill of Rights in 1791 , but failed to be ratified by the required number of states for two centuries, eventually being ratified in 1992 . An original intent inquiry would ask what the framers understood the amendment to mean when it was written; an original meaning inquiry would ask what the plain meaning of the text was in 1992 when it was eventually ratified. METHODOLOGY In The Original Meaning of the Recess Appointments Clause , Prof. Michael B. Rappaport described the methodology associated with the Original Meaning form of originalism as follows:
DISCUSSION Philosophical underpinnings Dissenting from the Court's ruling in '' Dred Scott V. Sanford '', Justice Benjamin R. Curtis wrote: "Whether such decrees are wise or unwise, whether their subjects are citizens or not, if they are usurpation of power, our rights are both infringed and endangered. They are infringed because the power to decide and act is taken away from the people without their consent. They are endangered because in a constitutional government, every usurpation of power dangerously disorders the whole framework of the state." Originalism, in all its various forms, is predicated on a specific view of what the Constitution ''is'', a view articulated by Chief Justice John Marshall in '' Marbury V. Madison '': : "'' constitution organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments''. The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? Originalism assumes that ''Marbury'' is correct: the Constitution is the "operating charter" granted to government by the people, as per the preamble to the U.S. Constitution , and its written nature introduces a certain discipline into its interpretation. Originalism further assumes that the need for such a written charter was derived from the perception, on the part of the Framers, of the abuses of power under the (unwritten) British Constitution , under which the Constitution was essentially whatever Parliament decided it should be. In writing out a Constitution which explicitly granted the government certain authorities, and witheld from it others, and in which power was balanced between multiple agencies (the Presidency , two chambers of Congress and the Supreme Court at the national level, and State Governments with similar branches), the intention of the Framers was to restrain government, originalists argue, and the value of such a document is nullified if that document's meaning is not fixed. "If the constitution can mean ''anything'', then the constitution means ''nothing''". Function of Constitutional jurisprudence Dissenting in '' Romer V. Evans '', Justice Antonin Scalia wrote: Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected. This statement summarizes the role for the court envisioned by Originalists, that is, that the Court parses what the general law and constitution says of a particular Case Or Controversy , and when questions arise as to the meaning of a given constitutional provision, that provision should be given the meaning it was understood to mean when ratified. Reviewing the book ''Law's Quandary'', Justice Scalia applied this formulation to some controversial topics routinely brought before the Court: :"''It troubles Smith, but does not at all trouble me—in fact, it pleases me—that giving the words of the Constitution their normal meaning would “expel from the domain of legal issues . . . most of the constitutional disputes that capture our attention,” such as “Can a macho military educational institution dedicated to what is euphemistically called the ‘adversative’ method admit only men? Is there a right to abortion? Or to the assistance of a physician in ending one’s life?” If we should read English as English, Smith bemoans, “these questions would seemingly all have received the same answer: ‘No law on that one.’”'' That is precisely the answer they should have received: The federal Constitution says nothing on these subjects, which are therefore left to be governed by state law. In ''Marbury'', , Docket No. 04-108 '' (2005). in which the Court has determined not what the Constitution ''says'', but rather, the court has sought to determine what is "morally correct" at ''this'' point in the nation's history, in terms of "the evolving standards of decency" (and taking into account "the context of international jurisprudence"), and then attempted to justify that determination through a "creative reading" of the text. This latter approach is frequently termed "the Living Constitution "; Justice Scalia has inveighed that "''the worst thing about the living constitution is that it will destroy the constitution''." See Scalia, Constitutional Interpretation , speech at Woodrow Wilson International Center 3/14/05 Matters rendered moot by originalism Originalists are sharply critical of the use of "the evolving standards of decency" - a term which first appeared in '') in Constitutional interpretation. On an originalist interpretation, if the meaning of the Constitution is static, then any ''ex post facto'' information (such what American people, American judges, or ''any'' country's judges think about the state of the world today) is inherently valueless in interpreting the meaning of the Constitution, and should not form any part of constitutional jurisprudence. The exception to the use of foreign law is the English common law, which originalists regard as setting the philosophical stage for the US Constitution and the American common and civil law. Hence, an originalist might cite Blackstone 's '' Commentaries '' to establish the meaning of the term " Due Process " as it would have been understood at the time of ratification. What originalism ''is not'' Originalism is not "the theory of original intent" As discussed Previously , Original Intent is only one theory in the Originalist family of theories. Many of the criticisms that are directed at original intent do not apply to other Originalist theories. It is possible to attack Originalism on the merits (as, for example, Cass Sunstein does occasionally ). Originalism is not conservatism It is not accurate to say that originalism rejects change, or that originalists necessarily oppose the use of "the evolving standards of decency" in determining what the Constitution ''ought'' to say; rather, originalism rejects the concept that the courts should consider what the Constitution ''ought'' to say, and rule solely on what it ''does'' say. Originalists argue that the business of determining what the Constitution and the law ''ought'' to say is within the purview of the Congress, that changes to the law should come through the legislature, and changes to the constitution should be made per the amendment process outlined in Article V. Sometimes this approach yields results that please conservatives (see, e.g., Justice Scalia's dissents in '' Roper '' or '' Romer '',), and sometimes it yields results that do not (see, e.g., Justice Scalia's dissents in '' BMW V. Gore '' or '' Hamdi V. Rumsfeld ''. Originalism is not strict constructionism Advocates of originalism are often associated with Strict Constructionism , and the terms are frequently used interchangeably. Both philosophies are thought of as being in opposition to Judicial Activism and the idea of the " Living Constitution ", and one may be both an Originalist and a Strict Constructionist, but they are not the same thing, and can potentially point to substantially differing results. See ''Differentiated from Strict Constructionism'', '' Ante ''. Originalism is not always an answer in and of itself Originalism is a means of constitutional ''interpretation'', not constitutional ''construction''; whenever "''to describe {Link without Title} case is not to decide it'',"'' Morrison V. Olson '', at 703 (Scalia, dissenting) it can only serve as a guide for what the Constitution says, not how that text applies to a given Case Or Controversy . Thus, Originalists can reach different results in the same case; see, e.g., '' United States V. Fordice ''; '' McIntyre ''; '' Hamdi '', '' Gonzales V. Raich ''; '' National Cable & Telecommunications Assn. V. Brand X Internet Services ''. According to The New Republic , although Scalia admits that Thomas "''is really the only justice whose basic approach to the law is the same as mine''", that magazine contends that "''during the court's 2003-2004 term, Scalia and Thomas voted together in only 73 percent of cases, and six other pairs of justices agreed with each other more often than Thomas and Scalia did''." PROS AND CONS Note that several of the arguments for and against Originalism should be read in conjunction with alternative views and rebuttals, presented in footnotes. Arguments favoring originalism
Arguments opposing originalism
REFERENCES
FOOTNOTES SEE ALSO EXTERNAL LINKS
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