Originalism

In the context of United States 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 is established at the time of passage or ratification. A neologism, "originalism" is a formalist theory of law, which is closely intertwined with textualism. Today, it is popular among U.S. political conservatives, being most prominently associated with Antonin Scalia, Clarence Thomas and Robert Bork, but some liberals, such as Justice Hugo Black and Akhil Amar^[1] have also subscribed to the theory.

Originalism is a family of theories, principally:

• One theory, original intent, is the view that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it. It is often used as justification for allowing the government to deny civil liberties to unpopular groups, such as blacks in the 1950s and gays who wish to marry in modern times on the ground that the "founders" did not intend for blacks or gays to enjoy the same rights as white males.
• The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution should be based on what the ordinary meaning of the text would have been at the time it was adopted; that is, what it would have been understood to mean by reasonable persons living at the time of its ratification. It is this latter view that most adherents, such as Justices Scalia and Thomas, are associated with.

What these theories share 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.

The primary alternative to originalism is most commonly described as the Living Constitution, the theory that the Constitution was written in flexible terms whose meaning can be dynamic. Although the two approaches are generally regarded as competing theories of interpretation, a recent article by Yale Law Professor Jack Balkin has received some attention for arguing that they could be compatible.

Origins of the term

In Originalism and the Fourteenth Amendment,^[2] 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 The Misconceived Quest for the Original Understanding. Earlier discussions often used the term "interpretivism" to denote theories that sought to derive meaning from the constitutional text alone ("textualism"), or from the intentions of the originators ("intentionalism"). See, for example, John Hart Ely, Democracy and Distrust: a Theory of Judicial Review ("interpretivism"); Thomas Grey, Do We Have an Unwritten Constitution? ("interpretive model"); H. Jefferson Powell, The Original Understanding of Original Intent ("intentionalism").

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, Original Intent and the Constitution; Richard B. Saphire, Enough About Originalism.^[3]

Differentiated from strict constructionism

Originalism is often, and inaccurately, used as an interchangeable synonym for strict constructionism.^{[4] [5] [6] [7] [8]}

Both theories are associated with Textualist and Formalist schools of thought, but there are pronounced differences between them. Justice Scalia differentiates the two by pointing out that "he uses a cane" means "he walks with a cane", not what a strict use of the words might suggest.^[9] 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."^[10]

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 [n]either 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

Main article: 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.

There are two kinds of "intent analysis", reflecting two meaning of the word "intent". The first, a rule of common law construction during the Founding Era, is functional intent. The second is motivational intent. To understand the difference, one can use the metaphor of an architect who designs a Gothic church with flying buttresses. The functional intent of flying buttresses is to prevent the weight of the roof from spreading the walls and causing a collapse of the building, which can be inferred from examining the design as a whole. The motivational intent might be to create work for his brother-in-law who is a flying buttress subcontractor. Using original intent analysis of the first kind, we can discern that the language of Article III of the [U.S. Constitution] was to delegate to Congress the power to allocate original and appellate jurisdictions, and not to remove some jurisdiction, involving a constitutional question, from all courts. That would suggest that the decision was wrong in Ex Parte McCardle^[11]

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,^[12] 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.^[13]

In response to this, a different strain of originalism, articulated by (among others) Antonin Scalia,^[14] Robert Bork^[15] and Randy Barnett,^[16] came to the fore. This is dubbed original meaning.

Original meaning

Main article: 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."^[17] 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 reasonable person in the historical period during which the constitution was proposed, ratified, and first implemented. For example, economist Thomas Sowell notes that phrases like "due process" and "freedom of the press" had a long established meaning in British law, even before they were put into the Constitution of the United States." Applying this form involves studying dictionaries and other writings of the time (for example, Blackstone's Commentaries on the Laws of England; 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."^[18]

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.

Semantic Originalism

"Semantic-originalism" is Ronald Dworkin's term for the theory that the original meaning of many statutes implies that those statutes prohibit certain acts widely considered not to be prohibited by the statutes at the time of their passages. For example, while Scalia and other originalists often claim that the death penalty is not cruel and unusual punishment because at the time of the Eighth Amendment's passage it was a punishment believed to be neither cruel nor unusual, Dworkin and the semantic-originalists assert that if advances in moral philosophy (presuming that such advances are possible) reveal that the death penalty is in fact cruel and unusual, then the original meaning of the Eighth Amendment implies that the death penalty is unconstitutional. Those who deny semantic-originalism often retort either by invoking legal positivism or by arguing that, if it became a widely adopted jurisprudential theory, semantic-originalism would make it difficult to determine exactly what the law is at any given time, and thereby make the pandect de facto ex post facto.

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:

• "The task is to determine the original meaning of the language...that is, to understand how knowledgeable individuals would have understood this language...when it was drafted and ratified. Interpreters at the time would have examined various factors, including text, purpose, structure, and history."

• "The most important factor is the text of the Clause. The modern interpreter should read the language in accord with the meaning it would have had in the late 1780s. Permissible meanings from that time include the ordinary meanings as well as more technical legal meanings words may have had."

• "If the language has more than one interpretation, then one would look to purpose, structure, and history to help to clarify the ambiguity. Purpose, structure, and history provide evidence for determining which meaning of the language the authors would have intended."
  • "The purpose of a Clause involves the objectives or goals that the authors would have sought to accomplish in enacting it. One common and permissible way to discern the purpose is to look to the evident or obvious purpose of a provision. Yet, purpose arguments can be dangerous, because it is easy for interpreters to focus on one purpose to the exclusion of other possible purposes without any strong arguments for doing so."
  • "Historical evidence can reveal the values that were widely held by the Framers’ generation and that presumably informed their purposes when enacting constitutional provisions. History can also reveal their practices, which when widely accepted would be evidence of their values."
  • "The structure of the document can also help to determine the purposes of the Framers. The decision to enact one constitutional clause may reveal the values of the Framers and thereby help us understand the purposes underlying a second constitutional clause."

• "One additional source of evidence about the meaning of constitutional language is early constitutional interpretations by government officials or prominent commentators. ...Such interpretations may provide evidence of the original meaning of the provisions, because early interpreters would have had better knowledge of contemporary word meanings, societal values, and interpretive techniques. Of course, early interpreters may also have had political and other incentives to misconstrue the document that should be considered." (Id. at 5-7). Historians of course reject the last point, arguing that discerning original meaning requires access to many different evidence --such as statements from many people--that the people at the time did not have access to. Furthermore most of the evidence that would clarify the original meaning has been lost--only fragments remain in the form of materials that were written down and happen to survive for hundreds of years. Whenever there is ambiguity there probably is also a paucity of evidence to resolve that ambiguity.

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:

"[The 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 United States 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 withheld 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."^[19]

In Marbury, Chief Justice Marshall established that the Supreme Court could invalidate laws which violated the Constitution (that is, judicial review), which helped establish the Supreme Court as having its own distinct sphere of influence within the Federal Government. However, this power was itself balanced with the requirement that the Court could only invalidate legislation if it was unconstitutional. Originalists argue that the modern court no longer follows this requirement. They argue that - since U.S. v. Darby, in which Justice Stone ruled that the 10th Amendment had no legal meaning - the Court has increasingly taken to making rulings^[20] 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."^[21]

Matters rendered moot by originalism

Originalists are sharply critical of the use of "the evolving standards of decency" - a term which first appeared in Trop v. Dulles - and the opinions of courts in foreign countries (excepting treaties to which the United States is a signatory, per Article II, Section 2, Clause 2 of the United States Constitution) 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, but instead 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, for example, Justice Scalia's dissents in Roper or Romer,), and sometimes it yields results that do not (see, for example, Justice Scalia's dissents in BMW v. Gore or Hamdi v. Rumsfeld.

Originalism is not always an answer in and of itself

Originalism is a means of constitutional interpretation, not constitutional construction; whenever "to describe [a] case is not to decide it,"^[22] 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, for example, 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

• Since a constitution is approved by the authority of the people, originalism is required to maintain their sovereignty.^[23]

• If a constitution no longer meets the exigencies of a society's "evolving standard of decency", and the people wish to amend or replace the document, there is nothing stopping them from doing so in the manner which was envisioned by the drafters: through the amendment process. The "Living Constitution" approach would thus only be valuable in the absence of an amendment process.

• Originalism prevents judges from gaining unfettered discretion to inject their personal values into a constitution. Before one can reject originalism, one must find another philosophy, another criterion for determining the meaning of a provision, lest the "opinion of this Court [rest] so obviously upon nothing but the personal views of its members."^[24] What other criteria can be suggested to constrain judicial interpretation? Scalia has averred that "there is no other."^[25]

• Originalism helps ensure predictability and protects against arbitrary changes in the interpretation of a constitution; to reject originalism implicitly repudiates the theoretical underpinning of another theory of stability in the law, stare decisis.^[26]

• If a constitution as interpreted can truly be changed at the decree of a judge, then "[t]he Constitution… is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please," said Thomas Jefferson.^[27]

• If a constitution is to be interpreted in light of "the evolving standards of decency," why, in most democratic countries, should the highest authority of judical branch, e.g. the Superme Court in U.S., be the ones to have the final say over its interpretation? Is not the legislative branch wihch is elected, thereby more likely to be in touch with the current standards of decency, and therefore better placed to make such judgements? If originalism is wrong, then Marbury v. Madison — which holding underpins judicial review of constitutionality, that is, the meaning of the constitution — was wrongly decided, and two centuries of jurisprudence relying on it is thereby on shaky ground.

• Usually the Ninth Amendment of the U.S. Constitution is cited as an example by originalism critics to attack Originalism. However, there are claims that the theory is completely consistent with the Ninth Amendment. Critics of originalism frequently cite the Ninth Amendment as granting specific rights, and inconsistent with an Originalist approach. They use the 9th Amendment to invent all manner of rights, and insist that the 9th Amendment itself grants substantive rights. However, when used in that manner, the 9th Amendment becomes nothing more than a Rorschach blot, one whose meaning would change depending on what creative "right" one could invent and attempt to invoke. What's dangerous about this is that it would be the unelected and largely unaccountable Judge, not the elected and accountable representative, that would be making the final decision on the value of the claimed "right". [T]he Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even afarther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people." Troxel V Granville 530 US 57 (2000) (Scalia, J. Dissenting).

• Originalism is much superior to the "Living Constitution" Theory espoused by its opponents. Perhaps the most glaring defect of Living Constitutionalism, next to its incompatibility with the whole antievolutionary purpose of a constitution, is that there is no agreement, and no chance of agreement, upon what is to be the guiding principle of the evolution. Panta rei is not a sufficiently informative principle of constitutional interpretation. What is it that the judge must consult to determine when, and in what direction, evolution has occurred? Is it the will of the majority, discerned from newspapers, radio talk shows, public opinion polls, and chats at the country club? Is it the philosophy of Hume, or of John Rawls, or of John Stuart Mill, or of Aristotle? As soon as the discussion goes beyond the issue of whether the Constitution is static, the evolutionists divide into as many camps as there are individual views of the good, the true, and the beautiful. I think that is inevitably so, which means that evolutionism is simply not a practicable constitutional philosophy.^[28]

• Contrary to critics of originalism, originalists do not always agree upon an answer to a constitutional question, nor is their any requirement that they have to. There is plenty of room for disagreement as to what original meaning was, and even more as to how that original meaning applies to the situation before the court. But the originalist at least knows what he is looking for: the original meaning of the text. Often, indeed usually, that is easy to discern and simple to apply. Sometimes (though not very often) there will be disagreement regarding the original meaning; and sometimes there will be disagreement as to how that original meaning applies to new and unforeseen phenomena. How, for example, does the First Amendment of the U.S. constitution guarantee of “the freedom of speech” apply to new technologies that did not exist when the guarantee was created - to sound trucks, or to government-licensed over-the-air television? In such new fields the Court must follow the trajectory of the First Amendment, so to speak, to determine what it requires-and assuredly that enterprise is not entirely cut-and-dried, but requires the exercise of judgment. But the difficulties and uncertainties of determining original meaning and applying it to modern circumstances are negligible compared with the difficulties and uncertainties of the philosophy which says that the constitution changes; that the very act which it once prohibited it now permits, and which it once permitted it now forbids; and that the key to that change is unknown and unknowable. The originalist, if he does not have all the answers, has many of them.^[29]

• If the people come to believe that the constitution is not a text like other texts; if it means, not what it says or what it was understood to mean, but what it should mean, in light of the evolving standards of decency that mark the progress of a maturing society,” well then, they will look for qualifications other than impartiality, judgment, and lawyerly acumen in those whom they elect to interpret it. More specifically, they will look for people who agree with them as to what those evolving standards have evolved to; who agree with them as to what the constitution ought to be. If the courts are free to write the constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. By trying to make the constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all.^[30]

Arguments opposing originalism

• Originalism leads to unacceptable results. For instance, interpreting the 14th amendment of the U.S. Constitution only to protect liberty recognized at the time it was ratified provides no protection to groups who were discriminated against at that time, particularly women and homosexuals. If an originalist approach is applied, the courts would be extremely limited in their power to protect against discrimination.

• The large and heterogeneous group of people who drafted and ratified a constitution did not all agree on its intent. Indeed, it is not even clear what group of people "counts" for purposes of intent. Is an originalist supposed to look at the intent of the drafters of the provision at issue? Yet, it is the act of voting (ratification) that is the legislative act that creates the law. If intent is to matter at all, it should then be the intent of the electorate that voted to ratify the provision which is taken into account, not a handful of drafters whose work, without the act of ratification, would mean nothing at all.^[31]

• Moreover, if one is then to look at the meaning at the particular time period, the question becomes how that is any more viable. Is it then the meaning to the average person at that time? The collective intent of the voters who passed it? Or is it possible that they indeed entrusted the framers with the authority to draft the constitution, meaning that the intent of the drafters should remain relevant? Originalism faces hermeneutic difficulties in understanding the intentions of the Founding Fathers, who lived 200 years ago (original intent), or the context of the time in which they lived (original meaning). Justice Scalia accepts this problem: "It's not always easy to figure out what the provision meant when it was adopted...I do not say [originalism] is perfect. I just say it's better than anything else." (Source)

• An alternative form of the above argument is that legal controversy rarely arises over constitutional text with uncontroversial interpretations. How, then, does one determine the original "meaning" of an originally broad and ambiguous phrase? Thus, originalists often conceal their choice between levels of generality or possible alternative meanings as required by the original meaning when there is considerable room for disagreement.

• It could be argued — as, for example, Justice Breyer has — that constitutions are meant to endure over time, and in order to do so, their interpretation must therefore be more flexible and responsive to changing circumstances than the amendment process is.

• It is further argued that the specific intent in drafting the United Stated Constitution was to create a broad and flexible document which would be interpreted in this manner. As Edmund Randolph set out at the Constitutional Convention, the goal was specifically "[t]o insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events." The basis for now scrupulously trying to recreate 18th century meaning, thus, is often called into question, when it appears that the Constitution was written specifically to avoid binding future generations in exactly this way.

• This view is also supported by the fact that a constitution itself is remarkably silent on the matter of the method of constitutional interpretation. For example, in the U.S. constitution, had the framers intended for the Constitution to be interpreted in a specific manner they could have indicated as much in the text of the Constitution itself. The framers themselves, most of whom were lawyers and legal scholars, would certainly have been aware of the confusion that the lack that providing guidance on the method of interpretation would cause. The absence of any such guidance suggests that either they were implicitly in support of the Constitution always being interpreted contemporarily, or that they themselves could not agree on the correct method. In either case, there is no reason to assume that we are bound by their understanding of the Constitution.

• Originalism allows the "dead hand" of prior generations to control the outcome of important contemporary issues down to an extraordinary and unnecessary level of detail. Everyone agrees that broad constitutional principles should control; but if the question is whether abortion is a fundamental right, why should intentions from centuries ago be controlling? The originalist's distinction between original meaning and original intention here, moreover, is unclear, since it is difficult to speak of "meaning" in terms of specific details that the Constitutional text does not clarify.^[32]

• The original intention or meaning of particular constitutional provisions can be understood at different levels of generality and the choice among such levels is arbitrary. For example, the US Constitution states "Representatives… shall be apportioned among the several States." Clearly at the time the document was written and ratified, the "several States" referred to were thirteen in number. If any new states in addition to these do not by definition comprise the "several States," why can't phrases like "cruel and unusual punishment" be read similarly?^[33]

• It is simply implausible that in writing such a broad phrase such as "cruel and unusual" that the framers intended for its very specific meaning at that time to be permanently controlling. The purpose of phrases such as "cruel and unusual" is specifically not to specify which punishments are outlaws, but to create a flexible test that can be applied over coming centuries. The very premise of this approach is that conditions will change. Put another way, there is no reason to think that the framers have a privileged position in making this determination of what is cruel and unusual. That is, while their ban on cruel punishment is binding on us, their understanding of the scope of the concept 'cruel' need not be.^[34]

• If applied scrupulously, originalism requires the country either to continually reratify the Constitution in order to retain contemporary standards for tests such as "cruel and unusual punishment" or "unreasonable searches and seizures," or to change the language to specifically state that these tests shall be administered according to the standards of the society administering the test. Critics of originalism believe that the first approach is far too burdensome, and that the second clarification is already inherently implied. Or in other words, they reject the implication that such constitutional tests should be permanently administered according to the standards at the time of ratification.

• Originalism, as applied by its most prominent proponents, is sometimes pretext (or, at least, the "rules" of originalism are sometimes "bent") to reach desired ends, no less so than The Living Constitution. For example, Prof. Jack Balkin has averred that neither the original understanding nor the original intent of the 14th Amendment is compatible with the result implicitly reached by the Originalist Justices Thomas and Scalia in their willingness to join Chief Justice Rehnquist's concurrence in Bush v. Gore, 531 U.S. 98 (2000). Furthermore, while both Scalia and Thomas have objected on originalist grounds to the use of foreign law by the court (see, respectively, Thompson v. Oklahoma, 487 U.S. 815, 868 (1988), and Knight v. Florida, 528 U.S. 990 (1999)), both have allowed it to seep into their opinions at one time or another (see, respectively, McIntyre v. Ohio Elections Committee, 514 U.S. 334, 381 (1995) and Holder v. Hall, 512 U.S. 874, 904 (1994))^[35]

• Originalists of all stripes often argue that where a constitution is silent, judges should not "read rights into" it. Rights implicating abortion, sex and sexual orientation equality, and capital punishment are often thus described as issues that the Constitution does not speak to, and hence should not be recognized by the judiciary. Yet, the Ninth Amendment, provides that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Original intent thus calls for just the opposite of what the text of the Constitution and "original intent" of the founders arguably affirm, creating an inconsistency in the practice of at least one branch of Originalism.^[36]

References

• Jack N. Rakove. Original Meanings: Politics and Ideas in the Making of the Constitution (1997)
• Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (2001)

Footnotes

See also

• Constitution in exile
• Judicial activism
• Legal formalism
• Living Constitution
• Strict constructionism
• Bad originalism

Wikipedia information about Originalism This article is licensed under the GNU Free Documentation License. It uses material from the Wikipedia article "Originalism". It may not have been reviewed by professional editors (see full disclaimer). Help contribute to Americola and edit this article.