Originalism

"Originalist" redirects here. For the play, seeThe Originalist.

Originalismis alegal theorythat basesconstitutional,judicial,andstatutoryinterpretation of text on the original understanding at the time of its adoption. Proponents of the theory object tojudicial activismand other interpretations related to aliving constitutionframework. Instead,originalistsargue for democratic modifications of laws through thelegislatureor throughconstitutional amendment.

Scene at the Signing of the Constitution of the United StatesbyHoward Chandler Christy

Originalism consists of a family of different theories of constitutional interpretation and can refer tooriginal intentor original meaning.Critics of originalism often turn to the competing concept of theLiving Constitution,which asserts that a constitution should evolve and be interpreted based on the context of current times.Originalism should not be confused withstrict constructionism.

Contemporary originalism emerged during the 1980s and greatly influenced American legal culture, practice, and academia.Over time, originalism became more popular and gained mainstream acceptance by 2020.

History

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 theNew Deal,when competing theories of interpretation grew in prominence.

Modern

JuristRobert Borkis credited with proposing the first modern theory of originalism in his 1971 law review article,Neutral Principles and Some First Amendment Problems,published inThe Yale Law Journal.He noted that without specification in a constitutional text, judges are free to input their own values while interpreting a constitution. Bork proposed one principled method to avoid this: for judges to "take from the document rather specific values that text or history show the framers actually to have intended and which are capable of being translated into principled rules."By following the original meaning, an originalist Supreme Court would therefore "need make no fundamental value choices," and its rulings would be restrained.

Law professorRaoul Bergerexpanded on the theory inGovernment by Judiciary(1977), positing that the rulings by theWarrenandBurgerCourts were illegitimate, as they deviated from the Constitution'soriginal intent.In 1985,Edwin Meese,United States Attorney Generalunder PresidentRonald Reagan,advanced a constitutional jurisprudence based on original intent in a speech before theAmerican Bar Association,a jurisprudence that "would produce defensible principles of government that would not be tainted by ideological predilection."A few months after the speech, JusticeWilliam Brennanrejected Meese's view, claiming that the original intent of theFounding Fathers of the United Stateswas indiscernible, and that text could only be understood in present terms.

During the 1980s, liberal members of the legal academy criticized the original intent formulated by Bork, Berger, and Meese.Serious opposition, beginning in law schools, evolved from debates in singular law review articles to books.In 1980,Paul Brest,who later became thedean of Stanford Law School,published "The Misconceived Quest for the Original Understanding,"an article whose criticism of originalism proved formative and influential.Brest argued that a collective intent among theFounding Fathers of the United Stateswas nonexistent and attempting to do so would be extremely difficult.He also posited that historical changes between the time of adoption to the present made originalism inapplicable in areas such asfree speech,freedom of religion,federalism,andgender discrimination.Other scholars of the period adopted and expanded Brest's critiques, includingH. Jefferson PowellandRonald Dworkin.Brest and Powell suggested versions of originalism that sought higher purposes than a specific framer's intent, leading to a shift in the dominant form of originalism from original intent to the original public understanding.

The debate grew more heated with thefailed Supreme Court nomination of Robert Borkin 1986with the 1990s seeing originalism becoming a broadly endorsed view in the conservative legal movement. The Department of Justice under the Ronald Reagan administration played an important role in lending legitimacy to originalism in the 1980s.

Types

In May 2024, conservative justices on the Supreme Court are reported to be considering new alternative interpretations of originalism.

Original intent

The historical arguments made byHugo BlackinEverson v. Board of Educationrelied entirely on historical evidence of the views of Madison and Jefferson and the appropriateness of interpreting theEstablishment Clausebased on that evidence.Edwin Meeseonce remarked that Black's record was evidence that "jurisprudence of original intention is not some recent conservative ideological creation".

Original public understanding

Supreme Court JusticeAntonin Scalia(pictured) was a firm believer in originalism.

Original public understanding originalism bases the meaning of a constitutional provision on how the public which ratified it would have generally understood it to mean.Antonin Scaliawas one of its most prominent theorists.

The conservative originalist movement spearheaded byRaoul Bergerin the 1980s was a call forjudicial restraintbut over the years important differences have developed among originalist scholars.Amy Coney Barrett explains:

A faithful judge resists the temptation to conflate the meaning of the Constitution with the judge’s own political preference; judges who give into that temptation exceed the limits of their power by holding a statute unconstitutional when it is not. That was the heart of the originalist critique of the Warren and Burger Courts. At the same time, fidelity will inevitably require a court to hold some statutes unconstitutional.

JusticeAmy Coney Barrett,who has been described as a protege of Scalia's, said at her confirmation hearing that she interprets the Constitution "as text, and I understand it to have the meaning that it had at the time people ratified it."

Debate

The originalism debate has divided the American public since the school desegregation decision inBrown v. Board of Education.JusticesAntonin Scalia,Amy Coney Barrett,Clarence ThomasandNeil Gorsuchdescribe themselves as originalists in scholarly writings and public speeches.

Critics

Supreme Court JusticeElena Kagan,a frequent critic of conservative originalism, argues that some aspects of the constitution were intentionally broad and vague to allow for future generations to interpret them along with the times.

Michael Waldmanargues that originalism is a new concept, and not one espoused by the founders.

According to a 2021 paper in theColumbia Law Review,the Founding Fathers did not include anondelegation doctrinein the Constitution and saw nothing wrong with delegations as a matter of legal theory, contrary to the claims of some originalists.

Columbia Law School legal scholarJamal Greeneargues that originalism is remarkably unpopular outside the United States (including Canada, South Africa, India, Israel, and most of Europe), where minimalism or textualism are the recommended responses to judicial activism.

Supreme Court JusticeWilliam J. Brennan Jr.described originalism as "arrogance cloaked as humility"during a 1985 speech at Georgetown University. In this speech, he also stated “It is arrogant to pretend that from our vantage we can gauge accurately the intent of the framers", and that politicians that claim to do so are motivated purely by political reasons, as they “have no familiarity with the historical record."

Harvard Law School legal scholarRichard H. Fallon Jr.argues at length that the Supreme Court Justices who claim to be Originalists actually apply Originalism in a highly selective manner "which typically abets substantively conservative decisionmaking."

Related positions

International Law and Originalism

Many Originalists reject any consideration ofInternational law(with an exception for British law before 1791).Justice Scalia, echoing Chief Justice John Marshall inMarbury v. Madison,wrote that "We must never forget that it is a Constitution for the United States of America that we are expounding.... Where there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution."

Strict constructionism

Main article:Strict constructionism

Antonin Scalia differentiated the two by pointing out that, unlike an originalist, a strict constructionist would not acknowledge thathe uses a canemeanshe walks with a cane(because, strictly speaking, this is not whathe uses a canemeans).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 scholarRandy Barnettasserts that originalism is a theory ofinterpretationand that constructionism is only appropriate when deriving the original intent proves difficult.

Declarationism

Declarationism is a legal philosophy that incorporates theUnited States Declaration of Independenceinto the body of case law on level with theUnited States Constitution.It holds that the Declaration is anatural lawdocument and so that natural law has a place within American jurisprudence.Harry V. JaffaandClarence Thomashave been cited as proponents of this school of thought.

See also

• Unconstitutional constitutional amendment

References

• Barnett, Randy E.(2004).Restoring the Lost Constitution: The Presumption of Liberty.Princeton, New Jersey: Princeton University Press.ISBN978-0691115856.
• Baude, William;Sachs, Stephen E.(August 2019). "Originalism and the Law of the Past".Law and History Review.37(3).American Society for Legal History:809–820.JSTOR26756362.
• Baude, William (2017). "Originalism as a Constraint on Judges".The University of Chicago Law Review.84(3): 2213–2229.JSTOR45063673.
• Calabresi, Steven G.,ed. (2007).Originalism: A Quarter-Century of Debate.Washington, DC: Regnery Pub. Inc.ISBN978-1-59698-050-1.
• Chemerinsky, Erwin(2022).Worse Than Nothing: The Dangerous Fallacy of Originalism.Yale University Press.ISBN978-0300259902.
• Cross, Frank (2013).The Failed Promise of Originalism.Stanford University Press.
• Drakeman, Donald L. (2010).Church, State and Original Intent.Cambridge University Press.
• Fontana, David (February 1, 2011). "Comparative Originalism".Texas Law Review.88:189–199.SSRN1753013.
• Kesavan, Vasan and Paulsen, Michael Stokes."The Interpretive Force of the Constitution's Secret Drafting History",91Georgetown Law Journal1113 (2003).
• Lawson, Gary S."On Reading Recipes — and Constitutions",85Georgetown Law Journal1823 (1997).
• Levinson, Sanford (1988). "Law as Literature". In Mailloux, Steven; Levinson, Sanford (eds.).Interpreting Law and Literature: A Hermeneutic Reader.Northwestern University Press.
• Maltz, Earl (2000). "Brown v. Board of Education and" Originalism "".In George, Robert P. (ed.).Great Cases in Constitutional Law.Princeton University Press.
• O'Neill, Jonathan (September 17, 2007).Originalism in American Law and Politics: A Constitutional History.The Johns Hopkins Constitutional Thought.Johns Hopkins University Press.ISBN978-0801887604.
• Rakove, Jack N.(1996).Original Meanings: Politics and Ideas in the Making of the Constitution.New York: Alfred A. Knopf.ISBN0-394-57858-9.
• Sawyer, Logan E. (August 2019)."Method and Dialogue in History and Originalism".Law and History Review.37(3).Cambridge University Press:847–860.
• Segall, Eric J.(2018).Originalism as Faith.Cambridge University Press.doi:10.1017/9781108105316.ISBN9781108105316.
• Whittington, Keith E.(1999).Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review.Lawrence, Kansas: University Press of Kansas.ISBN0-7006-0969-5.
• Whittington, Keith E.(2013)."Originalism: A Critical Introduction".Fordham Law Review.82(2): 375–409.
• Wurman, Ilan (August 2017).A Debt Against the Living: An Introduction to Originalism.Cambridge University Press.doi:10.1017/9781108304221.ISBN978-1108412162.
• Strang, Lee J. (2019).Originalism's Promise: A Natural Law Account of the American Constitution.Cambridge University Press.doi:10.1017/9781108688093.ISBN978-1108475631.LCCN2019000042.
• Solum, Lawrence B.(2011)."What is Originalism? The Evolution of Contemporary Originalist Theory".Georgetown Law Journal:1–41.doi:10.2139/ssrn.1825543.
• Huscroft, Grant; Miller, Bradley W., eds. (October 2011).The Challenge of Originalism: Theories of Constitutional Interpretation.Cambridge University Press.doi:10.1017/CBO9781139003926.ISBN9781139003926.
• Yarbrough, Tinsley E. (1988).Mr. Justice Black and his critics.Duke University Press.

Further reading

• Joseph J. Ellis(2018).American Dialogue: The Founders and Us.Knopf.ISBN978-0385353427.
• Why Originalism Is So Popular(January 13, 2011) byEric A. Posner,The New Republic
• Trumping Precedent with Original Meaning: Not as Radical as It Sounds(4 May 2005) byRandy Barnett
• Barrett, Amy Coney; Nagle, John Copeland (October 2016)."Congressional Originalism".Journal of Constitutional Law.19(1). Philadelphia, Pennsylvania:University of Pennsylvania:5–42.

External links

• The Originalism Blogat the Center for the Study of Constitutional Originalism at theUniversity of San Diego School of Law
• LecturebyAntonin ScaliaatWoodrow Wilson CenterviaCenter for Individual Freedomcomparing and contrasting originalism from the "living constitution" approach (2005)