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Originalism

Originalism in constitutional interpretation is the view that the interpretation of a written constitution is (or should be) consistent with what it was originally understood to mean by those who drafted and/or ratified it. Originalism is especially prominent in connection with controversies over the interpretation of the United States Constitution.

The key to originalism is that interpretive decisions are made based on facts about the document when it was originally written or ratified, with minimal adjustments for the time or context in which it is interpreted. Under this method, even when a judge sees an issue that he is persuaded ought to be ameliorated somehow, if the law as written and interpreted in the light of its original intent does not support the end result sought, a ruling supporting that result is not granted.

See also: strict constructionism

Contents

Forms of originalism

Originalism is actually a family of related views.

One popular form of originalism (used for ordinary law as well as constitutional law), called "original intent", entails applying laws based on the intent of its authors. For instance, the authors of the US Constitution would be the group of "Founding Fathers" that drafted it. Applying this form involves studying the writings of its authors for clues as to their intent.

Another form of originalism, called "original meaning", emphasizes how the text would have been understood by ordinary citizens in the historical period during which the constitution was proposed, ratified, and first implemented. Randy Barnett argues for this view in his book Restoring the Lost Constitution. Applying this form involves studying dictionaries and other writings of the time to find out what particular terms meant. For example, 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."[1]

Pros and Cons

Arguments favoring originalism

  • Originalism prevents judges from gaining unfettered discretion to inject their personal values into a written constitution.
  • Since the Constitution is approved by the authority of the people, originalism is required to maintain their sovereignty.
  • Originalism helps ensure predictability and protects against arbitrary changes in the interpreted meaning of a constitution.
  • If a people wish to deliberately alter their constitution, the very means to do so is officially provided for within constitutions such as that of the United States (e.g. through amendments).
  • If the Constitution as interpreted can truly be changed at the decree of a judge, then "The Constitution ... is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please." (Thomas Jefferson)

Arguments opposing originalism

  • The large group of people who agreed to draft and ratify the constitution didn't agree entirely on its intent.
  • Constitutions are meant to endure over time and their interpretation must be more flexible and responsive to changing circumstances than the amendment process is.
  • Originalism allows the "dead hand" of prior generations to control the outcome of important contemporary issues.
  • 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 changed deliberately?
  • Originalism faces the hermeneutic difficulty of understanding the intentions of the Founding Fathers, who lived 200 years ago and, of course, were not all of the same mind about everything. Recall the debate about even making a constitution.

Discussion

Dissenting 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 pwoer dangerously disorders the whole framework of the state."

Original intent is predicated on a specific view of what the Constitution is. Originalism assumes that the Constitution is the "operating charter" granted to government by the people, as per the preamble to the U.S. Constitution; it 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 four separate agencies (the Presidency, two chambers of Congress and the Supreme Court), the intention of the Framers was to restrain government, originalists argue.

Marbury v. Madison firmly established that the Supreme Court could invalidate laws which violated the Constitution (i.e. 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 it has increasingly taken to making rulings - e.g. Roper v. Simmons - 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 called "the living constitution"; Justice Scalia has inveighed that "the worst thing about the living constitution is that it will destroy the constitution". Scalia is not merely being melodramatic; he is an originalist, and seen from an originalist perspective, as noted above, the intention of the Framers in creating a written constitution was specifically to restrain government, to set limits on its scope and actions, to create and enforce a set of groundrules granted to government by "we the people" through the ratification process. The Constitution achieves this goal only if the meaning of its terms can be changed solely by "we the people" (indeed, the Framers thoughtfully included a process through which "we the people" could amend the Constitution, as demanded by "the evolving standard of decency" - but it is spelled out in Article V, not Article III), and not by the government, i.e. its object. This is the basis for Scalia's statement: that the constitution was intended to shackle government, but if the Constitution can be given flexible meaning by the agency of government charged with its interpretation, far from restraining government, the living constitution makes the prisoner its own jailer.

Originalism is sharply critical of the use of "the evolving standards of decency" 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. 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 Article V.

Consequences

The neutrality of this section is disputed.

Originalism is a view that was once widely held; however most law schools now teach their students that a constitution is a "living document", and thus a generation of lawyers and legal scholars - for better or worse - tend to support the "living constitution" viewpoint. Should the holding of originalist views be required as a criterion for Federal judicial appointments, there are several forseeable consequences.

One possible consequence of such a strict system of legal interpretation is that legislators would need to exert more of an effort to keep a variety of laws up to date than might otherwise be necessary; the leeway afforded by the living constitution paradigm allows Judges quasi-legislative power, thus taking some of the load off of the actual legislatures, at the cost of what is arguably the unconstitutional expansion of the power of the Judiciary.

Under an original intent decision system, Judges would rarely, if ever, "stretch" laws so as to cover circumstances not theretofore perceived or provided for by the proper legislatures. Thus, rather than leaving such deficiencies to the courts to fix, lawmakers would need to step forward and take responsibility to amend any laws brought to their attention that cause injustices or contain gaps.

If originalism were to regain widespread acceptance, another possible consequence would be an end to politicization of judicial appointments. Conversely, if judges were to be regarded as unchallengeable lawmakers who determine the meaning of the Constitution for today, then politicians would be more inclined to try to ensure that judges chosen reflect their own views on what the laws should mean. This would allow the "dead hand of prior generations" of politicians to influence "the outcome of important contemporary issues", rather than the Constitution.

Quotes

  • "In my view, the choice for the judge who believes the death penalty to be immoral is resignation rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty. He has, after all, taken an oath to apply those laws, and has been given no power to supplant them with rules of his own. Of course, if he feels strongly enough, he can go beyond mere resignation and lead a political campaign to abolish the death penalty, and if that fails, lead a revolution. But rewrite the laws he cannot do." -Justice Antonin Scalia (source)
  • "When struggling to find the right answer to a case, judges should adopt principles of interpretation and methods of analysis that reduce judicial discretion. Reducing discretion is the key to fostering judicial impartiality. The greater the room for judicial discretion, the greater the temptation to write one’s personal opinions into the law. This is especially important at the Supreme Court, where many of the usual limitations on judicial discretion, such as authority from a superior court or stare decisis, either do not exist, or do not exist with the same strength as with other courts." - Justice Clarence Thomas (Source)
  • "When interpreting the Constitution and statutes, judges should seek the original understanding of the provision’s text, if the meaning of that text is not readily apparent. This approach works in several ways to reduce judicial discretion and to maintain judicial impartiality. First, by tethering their analysis to the understanding of those who drafted and ratified the text, modern judges are prevented from substituting their own preferences for the Constitution. Second, it places the authority for creating the legal rules in the hands of the people and their representatives, rather than in the hands of the judiciary. The Constitution means what the delegates of the Philadelphia Convention and of the state ratifying conventions understood it to mean; not what we judges think it should mean." - Justice Clarence Thomas (Ibid.)

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Last updated: 09-12-2005 02:39:13