![Scene at the Signing of the Constitution of the United States](https://upload.wikimedia.org/wikipedia/commons/9/9d/Scene_at_the_Signing_of_the_Constitution_of_the_United_States.jpg)
In the context of United States law, originalism is a theory of
constitutional interpretation
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.
When these princip ...
that asserts that all statements in the Constitution must be interpreted based on the original understanding "at the time it was adopted".
This concept views the Constitution as stable from the time of enactment and that the meaning of its contents can be
changed only by the steps set out in
Article Five.
[B. Boyce]
"Originalism and the Fourteenth Amendment"
33 ''Wake Forest L. Rev.'' 909. This notion stands in contrast to the concept of the
Living Constitution
The Living Constitution, or judicial pragmatism, is the viewpoint that the United States Constitution holds a dynamic meaning that evolves and adapts to new circumstances even if the document is not formally amended. The Constitution is said ...
, which asserts that the Constitution should be interpreted based on the context of current times, even if such interpretation is different from the original interpretations of the document. Originalism should not be confused with
strict constructionism
In the United States, strict constructionism is a particular legal philosophy of judicial interpretation that limits or restricts such interpretation only to the exact wording of the law (namely the Constitution).
Strict sense of the term
...
.
The development of originalism was influenced by
Herbert Wechsler
Herbert Wechsler (December 4, 1913 – April 26, 2004) was an American legal scholar and former director of the American Law Institute (ALI). He is most widely known for his constitutional law scholarship and for the creation of the Model Penal ...
's influential lecture on ''Neutral Principles''. The idea that judicial review was distinguished from ordinary political process by the application of principles grew to be understood as fundamental to the legitimacy of judicial interpretation. Proponents of originalism argue that originalism was the primary method of legal interpretation in America from the time of its founding until the time of the
New Deal
The New Deal was a series of programs, public work projects, financial reforms, and regulations enacted by President Franklin D. Roosevelt in the United States between 1933 and 1939. Major federal programs agencies included the Civilian Cons ...
, when competing theories of interpretation grew in prominence.
Critics of originalism argue that its appeal in modern times is rooted in conservative political resistance to the ''
Brown v. Board of Education
''Brown v. Board of Education of Topeka'', 347 U.S. 483 (1954), was a landmark decision by the U.S. Supreme Court, which ruled that U.S. state laws establishing racial segregation in public schools are unconstitutional, even if the segrega ...
'' Supreme Court decision and opposition to some
civil rights legislation.
"Originalism" can refer to
original intent
Original intent is a theory in law concerning constitutional and statutory interpretation. It is frequently used as a synonym for originalism; while original intent is indeed one theory in the originalist family, it has some salient differenc ...
or
original meaning
{{Judicial interpretation
In the context of United States constitutional interpretation, original meaning is the dominant form of the legal theory of originalism today. It was made popular by Supreme Court Justice Antonin Scalia and contends ...
. The divisions between the theories relate to what exactly that identifiable original intent or original meaning is: the intentions of the authors or the ratifiers, the original meaning of the text, a combination of the two, or the original meaning of the text but not its expected application.
Forms
Originalism is an umbrella term for interpretative methods that hold to the "fixation thesis", the notion that an utterance's semantic content is fixed at the time it is uttered.
[L. Solum (November 25, 2008)[April 16, 2008]
"Semantic Originalism"
''Illinois Public Law Research Paper No. 07-24''. Two alternative understandings about the sources of meaning have been proposed:
* The
original intent
Original intent is a theory in law concerning constitutional and statutory interpretation. It is frequently used as a synonym for originalism; while original intent is indeed one theory in the originalist family, it has some salient differenc ...
theory, which holds that interpretation of a written constitution is (or should be) consistent with what those who drafted and ratified it intended the meaning to be. This view has become largely depreciated among 21st century originalists. Alfred Avins and Raoul Berger (author of ''
Government by Judiciary
''Government by Judiciary'' is a 1977 book by constitutional scholar and law professor Raoul Berger which argues that the U.S. Supreme Court (especially, but not only, the Warren Court) has interpreted the Fourteenth Amendment of the U.S. Co ...
'') were proponents of this view.
* The
original meaning
{{Judicial interpretation
In the context of United States constitutional interpretation, original meaning is the dominant form of the legal theory of originalism today. It was made popular by Supreme Court Justice Antonin Scalia and contends ...
theory, which is closely related to
textualism
Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, the ...
, is the view that interpretation of a written constitution or law should be based on what
reasonable person
In law, a reasonable person, reasonable man, or the man on the Clapham omnibus, is a hypothetical person of legal fiction crafted by the courts and communicated through case law and jury instructions.
Strictly according to the fiction, it is ...
s living at the time of its adoption would have understood the
ordinary meaning of the text to be.
Antonin Scalia
Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectu ...
was a proponent of this view, as are
Clarence Thomas
Clarence Thomas (born June 23, 1948) is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 199 ...
and
Amy Coney Barrett
Amy Vivian Coney Barrett (born January 28, 1972) is an associate justice of the Supreme Court of the United States. The fifth woman to serve on the court, she was nominated by President Donald Trump and has served since October 27, 2020. S ...
.
As a school of legal thought, originalism can be traced to
Robert Bork
Robert Heron Bork (March 1, 1927 – December 19, 2012) was an American jurist who served as the solicitor general of the United States from 1973 to 1977. A professor at Yale Law School by occupation, he later served as a judge on the U.S. Court ...
's "Neutral Principles and Some First Amendment Problems", published in the ''Indiana Law Journal'' in January 1971. However, it was not until the 1980s, when conservative jurists began to take seats on the Supreme Court, that the debate really began in earnest. "Old originalism" focused primarily on "intent", mostly by default. But that line was largely abandoned in the early 1990s; as "new originalism" emerged, most adherents subscribed to "original meaning" originalism, though there are some intentionalists within new originalism.
Original intent
The ''original form of originalism'' is sometimes called intentionalism, or ''original intent'' originalism, and looked for the subjective intent of a law's enactors. One problem with this approach is identifying the relevant "lawmaker" whose intent is sought. For instance, the authors of the U.S. Constitution could be the particular
Founding Fathers
The following list of national founding figures is a record, by country, of people who were credited with establishing a state. National founders are typically those who played an influential role in setting up the systems of governance, (i.e. ...
that drafted it, such as those on the
Committee of Detail
The Committee of Detail was a committee established by the United States Constitutional Convention on July 24, 1787, to put down a draft text reflecting the agreements made by the convention up to that point, including the Virginia Plan's 15 res ...
. Or, since the Constitution purports to originate from the People, one could look to the various state ratifying conventions. The intentionalist methodology involves studying the writings of its authors, or the records of the
Philadelphia Convention
The Constitutional Convention took place in Philadelphia from May 25 to September 17, 1787. Although the convention was intended to revise the league of states and first system of government under the Articles of Confederation, the intention fr ...
, or debates in the state legislatures, for clues as to their intent.
There are two kinds of ''intent analysis'', reflecting two meanings 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 flying buttress (''arc-boutant'', arch buttress) is a specific form of buttress composed of an arch that extends from the upper portion of a wall to a pier of great mass, in order to convey lateral forces to the ground that are necessary to pu ...
. 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, one might decide that the language of Article III of the
U.S. Constitution
The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the natio ...
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
''Ex parte McCardle'', 74 U.S. (7 Wall.) 506 (1869), is a United States Supreme Court decision that examines the extent of the jurisdiction of the Supreme Court to review decisions of lower courts under federal statutory law.
Case history
During ...
''.
According to a 2021 paper in the ''Columbia Law Review'', the Founding Fathers did not include a nondelegation doctrine in the Constitution, contrary to the claims of some originalists.
According to the paper, "the Founders saw nothing wrong with delegations as a matter of legal theory."
Problems with intentionalism
However, intentionalism encounters numerous problems when applied to the Constitution. For example, most of the Founders did not leave detailed discussions of what their intent was in 1787, and, while a few did, there is no reason to think that their views should be dispositive of what the rest thought. Moreover, the discussions of the drafters may have been recorded; however they were not available to the ratifiers in each state. The theory of original intent was challenged in a string of
law review
A law review or law journal is a scholarly journal or publication that focuses on legal issues. A law review is a type of legal periodical. Law reviews are a source of research, imbedded with analyzed and referenced legal topics; they also pro ...
articles in the 1980s. 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.
In response to this, a different strain of originalism, articulated by (among others) Antonin Scalia, Robert Bork, and
Randy Barnett
Randy Evan Barnett (born February 5, 1952) is an American legal scholar. He serves as the Patrick Hotung Professor of Constitutional Law at Georgetown University, where he teaches constitutional law and contracts, and is the director of the Georg ...
, came to the fore. This is dubbed
original ''meaning''.
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." 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
Thomas Sowell (; born June 30, 1930) is an American author, economist, political commentator and academic who is a senior fellow at the Hoover Institution. With widely published commentary and books—and as a guest on TV and radio—he becam ...
notes that phrases like "
due process
Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual pers ...
" and "
freedom of the press
Freedom of the press or freedom of the media is the fundamental principle that communication and expression through various media, including printed and electronic News media, media, especially publication, published materials, should be conside ...
" had a long established meaning in English 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
The ''Commentaries on the Laws of England'' are an influential 18th-century treatise on the common law of England by Sir William Blackstone, originally published by the Clarendon Press at Oxford, 1765–1770. The work is divided into four volume ...
''; see "Matters rendered moot by originalism", ''infra'') to establish what particular terms meant. (See ''Methodology'', infra).
Justice Scalia, one of the most forceful modern advocates for originalism, defined himself as belonging to the latter category:
Though there is 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
In ethical philosophy, consequentialism is a class of normative ethics, normative, Teleology, teleological ethical theories that holds that the wikt:consequence, consequences of one's Action (philosophy), conduct are the ultimate basis for judgm ...
arguments about original meaning's positive effect on rule of law.
Perhaps the clearest example illustrating the importance of the difference between original intent and original meaning is the
Twenty-seventh Amendment. The Twenty-seventh Amendment was proposed as part of the
Bill of Rights
A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pri ...
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 might ask what the framers understood the amendment to mean when it was written, though some would argue that it was the intent of the latter-day ratifiers that is important. An original-meaning inquiry would ask what the plain, public meaning of the text was in 1992 when it was eventually ratified.
Semantic originalism
''Semantic-originalism'' is
Ronald Dworkin
Ronald Myles Dworkin (; December 11, 1931 – February 14, 2013) was an American philosopher, jurist, and scholar of United States constitutional law. At the time of his death, he was Frank Henry Sommer Professor of Law and Philosophy at New Yo ...
'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. This type of originalism contrasts with ''expectations originalism'', which adheres to how the statutes functioned at the times of their passages, without any expectation that they would function in any other particular ways.
Justice Antonin Scalia and other originalists often claim that the
death penalty
Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that t ...
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, however, 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. All the same, Justice Scalia purported to follow semantic originalism, although he conceded that Dworkin does not believe Scalia was true to that calling.
Framework originalism
![Antonin Scalia, SCOTUS photo portrait](https://upload.wikimedia.org/wikipedia/commons/9/97/Antonin_Scalia%2C_SCOTUS_photo_portrait.jpg)
Framework Originalism is an approach developed by
Jack Balkin
Jack M. Balkin (born August 13, 1956) is an American legal scholar. He is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School. Balkin is the founder and director of the Yale Information Society Project (ISP), a r ...
, a professor of law at
Yale Law School
Yale Law School (Yale Law or YLS) is the law school of Yale University, a Private university, private research university in New Haven, Connecticut. It was established in 1824 and has been ranked as the best law school in the United States by ''U ...
. Framework Originalism, or Living Originalism, is a blend of two principal constitutional interpretive methods: originalism and
Living Constitution
The Living Constitution, or judicial pragmatism, is the viewpoint that the United States Constitution holds a dynamic meaning that evolves and adapts to new circumstances even if the document is not formally amended. The Constitution is said ...
. Balkin holds that there is no inherent contradiction between these two interpretive approaches—when properly understood. Framework Originalists view the Constitution as an "initial framework for governance that sets politics in motion." This "framework" must be built-out or filled-out over time, successive generations, by the various legislative and judicial branches. This process is achieved, primarily, through building political institutions, passing legislation, and creating precedents (both judicial and non-judicial). In effect, the process of building out the Constitution on top of the framework of the original meaning is living constitutionalism, the change of and progress of law over time to address particular (current) issues. The authority of the judiciary and of the political branches to engage in constitutional construction comes from their "joint responsiveness to public opinion" over long stretches of time, while operating within the basic framework of the original meaning. Balkin claims that through mechanisms of social influence, both judges and the political branches inevitably come to reflect and respond to changing social
mores
Mores (, sometimes ; , plural form of singular , meaning "manner, custom, usage, or habit") are social norms that are widely observed within a particular society or culture. Mores determine what is considered morally acceptable or unacceptable ...
, norms, customs and (public) opinions.
According to Framework originalism, interpreters should adhere to the original meaning of the Constitution, but are not necessarily required to follow the original expected application (although they may use it to create doctrines and decide cases). For example, states should extend the equal protection of the laws to all peoples, in cases where it would not originally or normally have applied. Contemporary interpreters are not bound by how people in 1868 would have applied these words and meanings to issues such as racial segregation or (sexual) discrimination, largely due to the fact the
Fourteenth Amendment is concerned with such issues (as well as the fact that the Fourteenth Amendment was not proposed or ratified by the founders). When the Constitution uses or applies principles or standards, like "equal protection" or "unreasonable searches and seizures," further construction is usually required, by either the judiciary, the executive, or the legislative branch. Therefore, Balkin claims, (pure, unadulterated) originalism is not sufficient to decide a wide range of cases or controversies. Judges, he posits, will have to "engage in considerable constitutional construction as well as the elaboration and application of previous constructions." For example, originalism (in and of itself), is not sufficient to constrain judicial behavior. Constraint itself does not just come from doctrine or canons, but also from institutional, political, and cultural sources. These constraints include: multi-member or panel courts (where the balance of power lies with moderate judges); the screening of judges through the federal judicial appointment process; social and cultural influences on the judiciary (which keep judges attuned and attentive to popular opinions and the political will of the people); and prevailing professional legal culture and professional conceptions of the role of the judiciary (which produce social norms or mores). These constraints ensure that judges act as impartial arbiters of the law and to try to behave in a principled manner, as it applies to decision making.
Professor Nelson Lund of
George Mason University Law School has criticized Balkin's living originalism theory.
[Lund, Nelson. (February 27, 2015)]
Living Originalism: The Magical Mystery Tour
Texas A&M Law Review, Vol. 3, No. 1, pp. 31–43, 2015. George Mason Law & Economics Research Paper No. 15-07. Specifically, Lund argues that living originalism could be used to read the
26th Amendment to the United States Constitution
The Twenty-sixth Amendment (Amendment XXVI) to the United States Constitution prohibits the states and the federal government from using age as a reason for denying the Voting rights in the United States, right to vote to citizens of the United ...
in such a way that it allows for an 18-year-old U.S. President (with the argument being that the 26th Amendment implicitly amends the 35-year age requirement for the U.S. Presidency as well as all other age requirements for federal offices to make all of them 18 years).
Also, Lund argues that if living originalism could be used to justify a
constitutional right
A constitutional right can be a prerogative or a duty, a power or a restraint of power, recognized and established by a sovereign state or union of states. Constitutional rights may be expressly stipulated in a national constitution, or they may ...
to
same-sex marriage
Same-sex marriage, also known as gay marriage, is the marriage of two people of the same Legal sex and gender, sex or gender. marriage between same-sex couples is legally performed and recognized in 33 countries, with the most recent being ...
, then "it would be child's play to construct the
Fourteenth Amendment into a shield for
polygamy
Crimes
Polygamy (from Late Greek (') "state of marriage to many spouses") is the practice of marrying multiple spouses. When a man is married to more than one wife at the same time, sociologists call this polygyny. When a woman is married ...
, prostitution,
incest
Incest ( ) is human sexual activity between family members or close relatives. This typically includes sexual activity between people in consanguinity (blood relations), and sometimes those related by affinity (marriage or stepfamily), adoption ...
(at least among
adults),
polyamorous marriages, and a variety of other unorthodox sexual relationships."
Finally, Lund argues that "
atever one's reasons for accepting Balkin's proposal to marry originalism and living constitutionalism, doing so leaves originalism itself in a condition akin to the legal death that married women experienced under the old rules of
coverture
Coverture (sometimes spelled couverture) was a legal doctrine in the English common law in which a married woman's legal existence was considered to be merged with that of her husband, so that she had no independent legal existence of her own. U ...
."
Related positions
Strict constructionism
According to University of Toledo law professor Lee J. Strang, a conservative advocate for originalism, early versions of originalism ("not the sophisticated, more-fully explicated originalism of today") were used at the Founding up until the 1930s; Strang notes that his claims are "contested in the literature" though.
Bret 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
Paul Brest (born 1940) is an American scholar of constitutional law, a former president of the William and Flora Hewlett Foundation, and a former dean of Stanford Law School. He is an influential theorist on the role of non-profit organizations i ...
in ''The Misconceived Quest for the Original Understanding''.
It is often asserted that ''originalism'' is synonymous with ''
strict constructionism
In the United States, strict constructionism is a particular legal philosophy of judicial interpretation that limits or restricts such interpretation only to the exact wording of the law (namely the Constitution).
Strict sense of the term
...
''.
Both theories are associated with textualist and formalist schools of thought; however, there are pronounced differences between them. Scalia differentiated the two by pointing out that, unlike an originalist, a strict constructionist would not acknowledge that ''he uses a cane'' means ''he walks with a cane'' (because, strictly speaking, this is not what ''he uses a cane'' means). Scalia averred that he was "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".
Legal scholar Randy Barnett asserts that originalism is a theory of ''interpretation'', not ''construction''. However, this distinction between "interpretation" and "construction" is controversial and is rejected by many nonoriginalists as artificial. As Scalia said, "the Constitution, or any text, should be interpreted
ither strictly
r sloppily; it should be interpreted reasonably"; once originalism has told a Judge what the provision of the Constitution means, they are bound by that meaning—however 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 she is not one by virtue of being the other.
Declarationism
Declarationism is a legal philosophy that incorporates the
United States Declaration of Independence
The United States Declaration of Independence, formally The unanimous Declaration of the thirteen States of America, is the pronouncement and founding document adopted by the Second Continental Congress meeting at Pennsylvania State House ...
into the body of case law on level with the
United States Constitution
The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
. It holds that the Declaration is a
natural law
Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law (the express enacte ...
document and so that natural law has a place within American jurisprudence. Its main proponents include
Harry V. Jaffa and other members of the
Claremont Institute
The Claremont Institute is a conservative think tank based in Upland, California. The institute was founded in 1979 by four students of Harry V. Jaffa. It produces the ''Claremont Review of Books,'' ''The American Mind'', and other publications.
...
. Some proponents claim that Supreme Court Justice
Clarence Thomas
Clarence Thomas (born June 23, 1948) is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 199 ...
is a follower of this school of thought; however, Thomas is more widely considered a member of the
strict constructionist
In the United States, strict constructionism is a particular legal philosophy of judicial interpretation that limits or restricts such interpretation only to the exact wording of the law (namely the Constitution).
Strict sense of the term
...
school.
In ''Cotting v. Godard, 183 U.S. 79'' (1901), the United States Supreme Court stated:
:The first official action of this nation declared the foundation of government in these words: "We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness." While such declaration of principles may not have the force of organic law, or be made the basis of judicial decision as to the limits of right and duty, and while in all cases reference must be had to the organic law of the nation for such limits, yet the latter is but the body and the letter of which the former is the thought and the spirit, and it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence. No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which is the foundation of free government."
Proponents claim that the concept is derived from the philosophical structure contained in the Declaration of Independence and assertion that it was the Declaration that revealed the United States as a new emergent nation, the Constitution creating only the federal government. According to this view, the authority to create the Constitution derives from the prior act of nation-creation accomplished by the Declaration. The Declaration declares that the people have a right to alter or abolish any government once it becomes destructive of their natural rights. The turn away from the
Articles of Confederation
The Articles of Confederation and Perpetual Union was an agreement among the 13 Colonies of the United States of America that served as its first frame of government. It was approved after much debate (between July 1776 and November 1777) by ...
with the ratification of the Constitution was an action of this sort and so the Constitution's authority exists within the legal framework established by the Declaration. The Constitution cannot, then, be interpreted as though it were the foundation of constitutional law, in the absence of principles derived from the Declaration.
Though philosophically conservative, Declarationists such as Jaffa have been outspoken critics of originalist jurists including
Robert Bork
Robert Heron Bork (March 1, 1927 – December 19, 2012) was an American jurist who served as the solicitor general of the United States from 1973 to 1977. A professor at Yale Law School by occupation, he later served as a judge on the U.S. Court ...
,
Antonin Scalia
Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectu ...
, and
William Rehnquist
William Hubbs Rehnquist ( ; October 1, 1924 – September 3, 2005) was an American attorney and jurist who served on the U.S. Supreme Court for 33 years, first as an associate justice from 1972 to 1986 and then as the 16th chief justice from ...
, likening them to
legal positivists. Bork and legal scholar
Lino Graglia
Lino Anthony Graglia (January 22, 1930January 30, 2022) was the A. W. Walker Centennial Chair in Law at the University of Texas specializing in antitrust litigation. He earned a BA from the City College of New York in 1952, and an LLB from Columb ...
have, in turn, critiqued the Declarationist position, retorting that it is single-mindedly obsessive over the
''Dred Scott'' decision and resembles a
theology
Theology is the systematic study of the nature of the divine and, more broadly, of religious belief. It is taught as an academic discipline, typically in universities and seminaries. It occupies itself with the unique content of analyzing the ...
rather than a legal doctrine.
Methodology
In "The Original Meaning of the Recess Appointments Clause", 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).
Discussion
Philosophical underpinnings
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
''Marbury v. Madison'', 5 U.S. (1 Cranch) 137 (1803), was a List of landmark court decisions in the United States, landmark Supreme Court of the United States, U.S. Supreme Court case that established the principle of Judicial review in the Uni ...
'':
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
The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
, 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
Abuse is the improper usage or treatment of a thing, often to unfairly or improperly gain benefit. Abuse can come in many forms, such as: physical or verbal maltreatment, injury, assault, violation, rape, unjust practices, crimes, or other t ...
under the (unwritten)
British Constitution
The constitution of the United Kingdom or British constitution comprises the written and unwritten arrangements that establish the United Kingdom of Great Britain and Northern Ireland as a political body. Unlike in most countries, no attempt ...
, 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
A presidency is an administration or the executive, the collective administrative and governmental entity that exists around an office of president of a state or nation. Although often the executive branch of government, and often personified by a ...
, two chambers of
Congress
A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of a ...
and the
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
at the national level, and
State governments of the United States
State governments of the United States are Administrative division, institutional units exercising functions of government at a level below that of the Federal government of the United States, federal government. Each U.S. state's government hold ...
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. As one author stated, "If the constitution can mean anything, then the constitution is reduced to meaninglessness."
Function of constitutional jurisprudence
Dissenting in ''
Romer v. Evans
''Romer v. Evans'', 517 U.S. 620 (1996), is a landmark United States Supreme Court case dealing with sexual orientation and state laws.. It was the first Supreme Court case to address gay rights since ''Bowers v. Hardwick'' (1986),. when the C ...
'', Scalia wrote:
This statement summarizes the role for the court envisioned by originalists, that is, that the Court parses what the general law and constitution say of a particular
case or controversy
The Supreme Court of the United States has interpreted the Case or Controversy Clause of Article III of the United States Constitution (found in Art. III, Section 2, Clause 1) as embodying two distinct limitations on exercise of judicial review: ...
, 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 Steven D Smith's book ''Law's Quandary'', Scalia applied this formulation to some controversial topics routinely brought before the Court:
In ''Marbury'',
Chief Justice John Marshall
John Marshall (September 24, 1755July 6, 1835) was an American politician and lawyer who served as the fourth Chief Justice of the United States from 1801 until his death in 1835. He remains the longest-serving chief justice and fourth-longes ...
established that the Supreme Court could invalidate laws which violated the Constitution (that is,
judicial review
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompat ...
), 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'', the Court has increasingly taken to making rulings 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 considering "the context of international jurisprudence"), and then justified that determination through a "creative reading" of the text. This latter approach is frequently termed "the
Living constitution
The Living Constitution, or judicial pragmatism, is the viewpoint that the United States Constitution holds a dynamic meaning that evolves and adapts to new circumstances even if the document is not formally amended. The Constitution is said ...
"; Scalia 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 ''
Trop v. Dulles
''Trop v. Dulles'', 356 U.S. 86 (1958), was a United States Supreme Court case in which the Court ruled that it was unconstitutional to revoke citizenship as a punishment for a crime. The ruling's reference to "evolving standards of decency" is fr ...
'') and of reference to 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.
In an originalist interpretation, if the meaning of the Constitution is static, then any ex post facto information (such as the opinions of the American people, American judges, or the judiciaries of any foreign country) is inherently valueless for interpreting the meaning of the Constitution, and should not form any part of constitutional jurisprudence. The Constitution is thus fixed and has procedures defining how it can be changed.
The exception to the use of foreign law is the English
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
, 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
Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual pers ...
'' as it would have been understood at the time of ratification.
See also
*
Constitution in Exile :''This article does not refer to'' The Constitution in Exile'', a book by Judge Andrew Napolitano.''
Constitution in Exile is a controversial term that refers to the situation resulting from provisions of the United States Constitution allegedly ...
*''
Government by Judiciary
''Government by Judiciary'' is a 1977 book by constitutional scholar and law professor Raoul Berger which argues that the U.S. Supreme Court (especially, but not only, the Warren Court) has interpreted the Fourteenth Amendment of the U.S. Co ...
'', a book by Raoul Berger
*
Judicial activism
Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...
*
Legal positivism
Legal positivism (as understood in the Anglosphere) is a school of thought of analytical jurisprudence developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin de ...
*
Living Constitution
The Living Constitution, or judicial pragmatism, is the viewpoint that the United States Constitution holds a dynamic meaning that evolves and adapts to new circumstances even if the document is not formally amended. The Constitution is said ...
*
Textualism
Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, the ...
*
Unconstitutional constitutional amendment
An unconstitutional constitutional amendment is a concept in judicial review based on the idea that even a properly passed and properly ratified constitutional amendment, specifically one that is not explicitly prohibited by a constitution's text ...
Citations
General and cited references
* ''Originalism: The Quarter-Century of Debate'' (2007) .
*
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) .
* Vasan Kesavan & Michael Stokes Paulsen. "The Interpretive Force of the Constitution's Secret Drafting History," 91 Geo. L.J. 1113 (2003).
*
Randy E. Barnett. ''Restoring the Lost Constitution'' (2005) .
* Gary Lawson. "On Reading Recipes ... and Constitutions," 85 Geo. L.J. 1823 (1996–1997) .
Further reading
*
External links
The Originalism Blog Center for the Study of Constitutional Originalism at the University of San Diego School of Law
Why Originalism Is So Popular by
Eric A. Posner, ''
The New Republic
''The New Republic'' is an American magazine of commentary on politics, contemporary culture, and the arts. Founded in 1914 by several leaders of the progressive movement, it attempted to find a balance between "a liberalism centered in hum ...
''
Justice Scalia lecture at CUA discussing originalism (1996)
comparing and contrasting originalism from the "living constitution" approach (2005)
entry on Originalism
An Originalism for Nonoriginalists by
Randy Barnett
Randy Evan Barnett (born February 5, 1952) is an American legal scholar. He serves as the Patrick Hotung Professor of Constitutional Law at Georgetown University, where he teaches constitutional law and contracts, and is the director of the Georg ...
"Original Intent and The Free Exercise of Religion"Joseph A. Zavaletta, Jr., Esq
"Constitutional Issues of Taxation"Original Intent.org
Trumping Precedent with Original Meaning: Not as Radical as It Sounds by
Randy Barnett
Randy Evan Barnett (born February 5, 1952) is an American legal scholar. He serves as the Patrick Hotung Professor of Constitutional Law at Georgetown University, where he teaches constitutional law and contracts, and is the director of the Georg ...
The Founders ConstitutionFounding-era materials
American Patriot PartyFounding-era Principles
by
Thomas Sowell
Thomas Sowell (; born June 30, 1930) is an American author, economist, political commentator and academic who is a senior fellow at the Hoover Institution. With widely published commentary and books—and as a guest on TV and radio—he becam ...
*
Jack Balkin
Jack M. Balkin (born August 13, 1956) is an American legal scholar. He is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School. Balkin is the founder and director of the Yale Information Society Project (ISP), a r ...
Bad originalism* Jack Balkin
* Ed Brayton
Balkin on "Bad Originalism"
{{Tea Party movement
Supreme Court of the United States
Conservatism in the United States
United States constitutional law
Intention
Theories of constitutional interpretation