4.1 Originalism
6 min read•august 20, 2024
is a constitutional interpretation theory that emphasizes the of the Constitution at the time of ratification. This approach contrasts with , which allows for evolving interpretations based on changing societal norms.
The debate between originalism and living constitutionalism is crucial in understanding how courts apply the Constitution. Originalists argue their method constrains judicial discretion, while critics claim it can't account for and constitutional changes over time.
Originalism vs living constitutionalism
- Originalism is a theory of constitutional interpretation that holds the meaning of the Constitution should be determined by the original understanding at the time it was ratified
- Living constitutionalism, in contrast, holds that the meaning of the Constitution can evolve over time to adapt to changing social and political circumstances
- The debate between originalism and living constitutionalism is central to understanding how courts interpret and apply the Constitution in deciding cases
Originalism and constitutional interpretation
Textualism in originalism
Top images from around the web for Textualism in originalism
Natural and Revealed Law and Originalism – Finding Purpose View original
Is this image relevant?
Originalism - Wikipedia View original
Is this image relevant?
Antonin Scalia and the challenge of originalism View original
Is this image relevant?
Natural and Revealed Law and Originalism – Finding Purpose View original
Is this image relevant?
Originalism - Wikipedia View original
Is this image relevant?
1 of 3
Top images from around the web for Textualism in originalism
Natural and Revealed Law and Originalism – Finding Purpose View original
Is this image relevant?
Originalism - Wikipedia View original
Is this image relevant?
Antonin Scalia and the challenge of originalism View original
Is this image relevant?
Natural and Revealed Law and Originalism – Finding Purpose View original
Is this image relevant?
Originalism - Wikipedia View original
Is this image relevant?
1 of 3
- focuses on the plain meaning of the words in the constitutional text
- Textualists argue that judges should not look beyond the text to determine its meaning
- Textualism is often associated with originalism, as both emphasize adhering to the original meaning of the Constitution
- However, some originalists argue that the text alone is not always sufficient to determine the original meaning
Original intent vs original meaning
- refers to the intentions of the Constitution's framers in drafting the document
- Proponents of original intent argue that the Constitution should be interpreted according to what the framers intended it to mean
- Original meaning, in contrast, focuses on how the Constitution's text would have been understood by the public at the time of ratification
- Most modern originalists favor original meaning over original intent, arguing that the public understanding is more important than the framers' subjective intentions
New originalism and original public meaning
- emerged in the 1990s as a refinement of earlier originalist theories
- New originalists focus on the of the constitutional text rather than the framers' intentions
- Original public meaning refers to how the Constitution's words and phrases would have been understood by ordinary citizens at the time of ratification
- New originalists argue that original public meaning provides an objective basis for constitutional interpretation that is more determinate than earlier originalist theories
Originalism and judicial restraint
Originalism as a constraint on judges
- Originalists argue that their approach constrains judges by requiring them to adhere to the Constitution's fixed meaning
- By tying constitutional interpretation to the original understanding, originalism aims to prevent judges from imposing their own policy preferences
- Originalists criticize living constitutionalism for allowing judges too much discretion to interpret the Constitution according to their own values
Originalism and the countermajoritarian difficulty
- The refers to the tension between judicial review and democratic self-governance
- When unelected judges strike down laws enacted by elected representatives, it can be seen as undemocratic
- Originalists argue that their approach mitigates the countermajoritarian difficulty by ensuring that judges are guided by the Constitution's original meaning rather than their own policy preferences
- By adhering to the original understanding, originalists contend, judges are respecting the democratic will of the people who ratified the Constitution
Criticisms of originalism
Indeterminacy of historical meaning
- Critics argue that the historical meaning of the Constitution is often unclear or contested
- Even if the original meaning can be determined, it may not provide clear answers to modern constitutional questions
- The , critics contend, undermines originalism's claim to constrain judicial discretion
Originalism and unenumerated rights
- The Constitution does not explicitly mention many rights that are now considered fundamental, such as the right to privacy
- Critics argue that originalism cannot account for these unenumerated rights, as they are not based on the Constitution's text or original meaning
- Originalists have responded by arguing that some unenumerated rights can be inferred from the Constitution's structure or from the Ninth Amendment's reference to other rights retained by the people
Originalism and constitutional change
- The Constitution has been amended 27 times since its ratification, reflecting changing social and political values
- Critics argue that originalism cannot account for this , as it is tied to the original meaning at a fixed point in time
- Some originalists have argued that the amendment process itself is consistent with originalism, as it allows for constitutional change through democratic means
Prominent originalist thinkers
Antonin Scalia and textualism
- was a prominent Supreme Court justice and advocate of originalism and textualism
- Scalia argued that the Constitution should be interpreted according to its plain meaning, not according to the intentions of its drafters or contemporary policy considerations
- He criticized living constitutionalism for allowing judges to impose their own values under the guise of constitutional interpretation
Robert Bork and original intent
- was a legal scholar and unsuccessful Supreme Court nominee who advocated for originalism based on original intent
- Bork argued that the Constitution should be interpreted according to the intentions of its framers, which could be discerned through historical research
- His nomination to the Supreme Court was rejected by the Senate in 1987, in part due to controversy over his originalist views
Clarence Thomas and originalism
- is a current Supreme Court justice and prominent advocate of originalism
- Thomas has argued for a strict adherence to the Constitution's original meaning, even when it leads to results that are unpopular or inconsistent with modern values
- He has been willing to overturn long-standing precedents that he views as inconsistent with the Constitution's original meaning, such as in his dissent in Planned Parenthood v. Casey
Originalism in Supreme Court decisions
District of Columbia v. Heller and the Second Amendment
- In (2008), the Supreme Court held that the Second Amendment protects an individual right to bear arms
- Justice Scalia's majority opinion relied heavily on originalist reasoning, examining the historical understanding of the Second Amendment at the time of ratification
- The opinion looked to 18th-century dictionaries, state constitutions, and other historical sources to determine the original meaning of the Second Amendment
Crawford v. Washington and the Confrontation Clause
- In (2004), the Supreme Court held that the Confrontation Clause of the Sixth Amendment bars out-of-court testimonial statements unless the witness is unavailable and the defendant had a prior opportunity for cross-examination
- Justice Scalia's majority opinion relied on originalist reasoning, examining the historical understanding of the Confrontation Clause at the time of ratification
- The opinion looked to English common law, state constitutional provisions, and other historical sources to determine the original meaning of the Confrontation Clause
Alternatives to originalism
Pragmatism and judicial balancing
- Pragmatism is an approach to constitutional interpretation that emphasizes practical consequences and judicial balancing of competing interests
- Pragmatists argue that judges should consider the real-world impact of their decisions and balance the relevant constitutional values and policy considerations
- Critics argue that pragmatism gives judges too much discretion and undermines the rule of law
Moral reading of the Constitution
- The moral reading of the Constitution is an approach that interprets the Constitution's abstract moral principles in light of contemporary moral and political values
- Proponents argue that the Constitution embodies broad moral principles, such as liberty and equality, that should be given content by each generation
- Critics argue that the moral reading allows judges to impose their own moral views under the guise of constitutional interpretation
Key Terms to Review (21)
Antonin Scalia: Antonin Scalia was an influential Associate Justice of the Supreme Court of the United States, serving from 1986 until his death in 2016. Known for his strong conservative views and his originalist interpretation of the Constitution, Scalia's judicial philosophy emphasized a strict adherence to the text of the Constitution and the intent of its framers, which has significantly impacted legal debates and federal judicial appointments.
Clarence Thomas: Clarence Thomas is an Associate Justice of the Supreme Court of the United States, known for his originalist interpretation of the Constitution. He has often emphasized that the Constitution should be understood based on its text as it was originally written, promoting a strict adherence to the framers' intentions. His views and judicial philosophy significantly influence discussions around constitutional interpretation and the role of the Supreme Court in modern society.
Constitutional change: Constitutional change refers to the process through which amendments or alterations are made to a country's constitution, impacting the fundamental legal framework and governance of that nation. This change can occur through formal methods such as legislative action or referendums, or through informal methods like judicial interpretation and evolving political practices. Understanding how constitutional change works is crucial for grasping the dynamics of legal interpretations and debates around issues like originalism, which emphasizes adhering to the constitution's original meaning.
Constitutional fidelity: Constitutional fidelity refers to the commitment of judges, lawmakers, and public officials to adhere to the principles and intentions embedded within the Constitution. It emphasizes the importance of interpreting and applying the Constitution as it was originally understood, maintaining consistency with its foundational values while also ensuring that contemporary issues are addressed in a manner that respects those original meanings.
Countermajoritarian difficulty: Countermajoritarian difficulty refers to the tension between the principles of democracy, where the majority's will prevails, and the role of courts in protecting minority rights or constitutional principles, even when those decisions conflict with majority opinion. This term highlights the challenges that arise when judicial decisions overturn laws or policies favored by the majority, raising questions about the legitimacy and accountability of judicial review.
Crawford v. Washington: Crawford v. Washington is a landmark Supreme Court case from 2004 that established important guidelines regarding the Confrontation Clause of the Sixth Amendment, specifically focusing on the admissibility of hearsay statements in criminal trials. The decision emphasized that testimonial statements made by witnesses who do not appear at trial are generally inadmissible unless the defendant had a prior opportunity to cross-examine them. This case is significant as it reaffirmed the importance of a defendant's right to confront their accuser and provided clarity on what constitutes 'testimonial' evidence.
District of Columbia v. Heller: District of Columbia v. Heller is a landmark Supreme Court case decided in 2008 that affirmed an individual's right to possess a firearm unconnected with service in a militia and to use it for traditionally lawful purposes, such as self-defense within the home. This decision was significant in shaping interpretations of the Second Amendment, influencing discussions around constitutional rights and originalism, as well as how courts engage in judicial policymaking.
Indeterminacy of Historical Meaning: Indeterminacy of historical meaning refers to the idea that the interpretation of historical texts and events can vary significantly depending on the context in which they are examined. This concept suggests that meanings are not fixed and can shift over time, influenced by changes in societal values, perspectives, and the evolving nature of language. This notion is particularly relevant to understanding constitutional interpretation and how original meanings can be understood differently by various generations.
Judicial Activism: Judicial activism refers to the judicial philosophy where judges interpret the Constitution and laws in a way that allows them to make decisions based on their personal beliefs, values, and considerations of social justice rather than strictly adhering to existing legal precedents. This approach often leads to significant changes in law and policy, influencing societal norms and government actions.
Judicial Restraint: Judicial restraint is a legal philosophy that encourages judges to limit their own power by interpreting the law and the Constitution based on the original intent of the framers and existing legal precedents. This approach promotes the idea that courts should defer to the decisions made by legislatures and avoid creating new policies or altering established laws unless absolutely necessary.
Living constitutionalism: Living constitutionalism is the idea that the Constitution should be interpreted as a dynamic document that adapts to contemporary societal values and circumstances. This perspective emphasizes the need for the Constitution to remain relevant and responsive to changing social norms, rather than being strictly limited to the original intent of its framers. Living constitutionalism often contrasts with originalism, advocating for a more flexible approach in judicial decision-making.
New originalism: New originalism is a modern approach to constitutional interpretation that emphasizes understanding the Constitution's meaning as it was intended at the time of its framing, but also considers the text's application in contemporary society. This perspective seeks to balance the historical intent of the framers with the need for the Constitution to remain relevant and adaptable over time.
Original intent: Original intent refers to the concept in constitutional interpretation that aims to understand the meaning of a legal text based on the intentions of its authors at the time it was written. This approach seeks to preserve the original meanings and purposes of constitutional provisions as understood by the framers, thereby providing a stable and predictable legal framework.
Original Meaning: Original meaning refers to the understanding of a legal text, particularly a constitution or statute, as it was intended at the time it was written. This approach emphasizes the historical context and the language used by the authors, aiming to interpret the text based on its original intent rather than contemporary interpretations or societal changes.
Original public meaning: Original public meaning refers to the interpretation of a legal text, particularly a constitution, based on how it would have been understood by the general public at the time it was enacted. This concept is central to originalism, a theory of constitutional interpretation that emphasizes the importance of historical context and the intentions of the framers as reflected in the language of the text.
Originalism: Originalism is a legal philosophy that interprets the Constitution based on the meaning that its words had at the time it was enacted. This approach emphasizes a fixed understanding of the text, aiming to provide stability and predictability in judicial decisions by adhering closely to the original intentions of the framers.
Rights discourse: Rights discourse refers to the conversation and argumentation surrounding the recognition, interpretation, and enforcement of rights within society. It encompasses the legal, philosophical, and social dimensions of rights, emphasizing how these rights are articulated, claimed, and understood by individuals and groups in various contexts. This concept plays a crucial role in shaping laws and policies that protect individual liberties and social justice.
Robert Bork: Robert Bork was a prominent American legal scholar, judge, and politician known for his advocacy of originalism in constitutional interpretation. His controversial nomination to the U.S. Supreme Court in 1987 by President Ronald Reagan highlighted the intense ideological battles surrounding judicial philosophy, especially between originalists and more liberal interpretations of the Constitution.
Strict constructionism: Strict constructionism is a judicial philosophy that interprets the Constitution in a literal and narrow manner, focusing on the text as it was originally written. This approach emphasizes the importance of adhering closely to the specific language of the Constitution and the framers' intended meaning, often resisting broader interpretations or implications that may arise from contemporary values or societal changes.
Textualism: Textualism is a legal interpretive method that emphasizes the importance of the text of a law or constitutional provision as it is written, advocating for an interpretation based strictly on the language used rather than extrinsic factors like intent or broader societal implications. This approach promotes a straightforward reading of the text, asserting that meaning should be derived solely from the words on the page, which connects directly to original meaning and how statutes are understood.
Unenumerated rights: Unenumerated rights are those fundamental rights that are not explicitly listed in the Constitution but are nonetheless recognized as being protected under the framework of individual liberties. These rights are often inferred from the principles and values embedded in the Constitution, particularly through interpretations by the courts. They play a critical role in expanding the scope of personal freedoms beyond those explicitly stated.