Originalism

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"Originalist" redirects here. For the play, see The Originalist.

Scene at the Signing of the Constitution of the United States by Howard Chandler Christy
Judicial interpretation
Forms
General rules of interpretation
General theories of interpretation

Originalism is a method of constitutional and statutory interpretation. Originalists assert that legal text should be interpreted based on the original understanding at the time of adoption. Originalists object to the idea of the significant legal evolution being driven by judges in a common law framework and instead favor modifications of laws through the Legislature or through Constitutional amendment.

The term was coined in 1980 and the concept became popular in U.S. conservative legal circles by the 1990s. Originalism nevertheless remains particularly unpopular in many democracies, with the ideology only gaining traction in the West in the United States and, to a lesser extent, Australia.[1] David Fontana argues in the Texas Law Review that originalism has more adherents in countries that underwent revolutions, especially those in Latin America and Africa.[2] Critics of originalism often turn to the competing concept of the Living Constitution, which asserts that a constitution should be interpreted based on the context of current times.[3][4]

"Originalism" can refer to original intent or original meaning. 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. Originalism should not be confused with strict constructionism.[5]

History[edit]

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.[6] 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, when competing theories of interpretation grew in prominence.[7][8][9]

Critics of originalism argue it is a new concept, with Ruth Marcus crediting Robert Bork's 1971 article "Neutral Principles and Some First Amendment Problems" as its first manifestation.[10][11][12] The term "originalism" was coined by liberal critic Paul Brest in 1980.[12][13] It was not until the 1980s, when conservative jurists began to take seats on the Supreme Court, that the debate really began in earnest with the 1990s seeing originalism becoming a broadly endorsed view in the conservative legal movement.[12] The Department of Justice under the Ronald Reagan administration played an important role in lending legitimacy to originalism in the 1980s.[14][15][16]

The first originalists on the court were Alito and Thomas, and they would not have a powerful bloc until the three Trump appointees joined the court.[12]

Debate[edit]

Support[edit]

Neil Gorsuch argued in 2019 that Originalism constrains judges to act as neutral arbiters by having judges set aside their policy preferences when ruling, and that through this Judicial restraint and opposition to Judicial activism Originalists uphold democracy.[17] Gorsuch claims that cases like Dred Scott and Korematsu cannot be defended when examining the Constitution's original meaning.[17] Segregationist Sam Ervin was an early proponent of originalism as he used the theory to argue in opposition to civil rights legislation during the 1960s.[18] According to University of Toledo law professor Lee J. Strang, a conservative advocate for originalism,[19][unreliable source?] early versions of originalism ("not the sophisticated, more-fully explicated originalism of today") were used at the Founding up until the 1930s; Strang noted that his claims "are contested in the literature".[7]

Opposition[edit]

Calvin Terbeek argues that Originalism's appeal in modern times is rooted in conservative political resistance to the Brown v. Board of Education Supreme Court decision and opposition to some civil rights legislation.[20]

Supreme Court Justice Elena 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.[21]

Michael Waldman argues that originalism is a new concept, and not one espoused by the founders.[10] He also criticizes conservatives as embracing originalism because it was conservative, not embracing conservatism because it was originalist.[12]

According to a 2021 paper in the Columbia Law Review, the Founding Fathers did not include a nondelegation doctrine in the Constitution and saw nothing wrong with delegations as a matter of legal theory, contrary to the claims of some originalists.[22]

Ruth Marcus wonders why we should keep the original meaning as fixed when the U.S. was in an agrarian economy where black people were enslaved and women treated like chattel. She argues that the Constitution was written with the understanding that it would apply to circumstances not yet forseen, and with language flexible enough to accommodate them.[12]

Jamal Greene argues 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.[23]

Justice William J. Brennan Jr. described originalism as "arrogance cloaked as humility"[24] 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."

Related positions[edit]

Strict constructionism[edit]

Main article: Strict constructionism

Both strict constructionism and originalism are theories associated with textualist and formalist schools of thought; however, there are pronounced differences between them.[citation needed] 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).[25] 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".[26]

Legal scholar Randy Barnett asserts that originalism is a theory of interpretation, not construction.[27][clarification needed] However, this distinction between "interpretation" and "construction" is controversial and is rejected by many nonoriginalists as artificial.[citation needed] As Scalia said, "the Constitution, or any text, should be interpreted [n]either strictly [n]or sloppily; it should be interpreted reasonably";[citation needed][original research?] 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).[citation needed][original research?] 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.[citation needed]

Declarationism[edit]

Declarationism is a legal philosophy that incorporates the United States Declaration of Independence into the body of case law on level with the United States Constitution. It holds that the Declaration is a natural law document and so that natural law has a place within American jurisprudence.[28] Harry V. Jaffa and Clarence Thomas have been cited as proponents of this school of thought.[28]

See also[edit]

References[edit]

  1. ^ Allan, James (April 10, 2016). "Australian Originalism Without a Bill of Rights: Going Down the Drain with a Different Spin". The Western Australian Jurist. Retrieved November 22, 2023.
  2. ^ Fontana, David (December 1, 2010), "Comparative Originalism", Texas Law Review, vol. 88, p. 189, SSRN 1753013, retrieved January 10, 2024
  3. ^ Ackerman, Bruce (January 1, 2017). "The Holmes Lectures: The Living Constitution". Yale University Law School.
  4. ^ Vloet, Katie (September 22, 2015). "Two Views of the Constitution: Originalism vs. Non-Originalism". University of Michigan Law.
  5. ^ Scalia, Antonin. "Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws" (PDF). University of Utah. Archived from the original (PDF) on September 11, 2006. Retrieved March 7, 2022.
  6. ^ Schultz, David Andrew (2009). Encyclopedia of the United States Constitution. Facts on File. p. 164. ISBN 9781438126777.
  7. ^ a b Strang, Lee J. (2019). "A Brief History of Originalism in American Constitutional Interpretation". Originalism's Promise: A Natural Law Account of the American Constitution. Cambridge: Cambridge University Press. pp. 9–42. doi:10.1017/9781108688093.002. ISBN 9781108688093. S2CID 241824223.
  8. ^ Currie, David P. (2005). The Constitution in Congress: Democrats and Whigs 1829–1861. Chicago: University of Chicago Press. pp. xiii. ISBN 978-0226129006.
  9. ^ Wurman, Ilan, ed. (2017), "The Origins of Originalism", A Debt Against the Living: An Introduction to Originalism, Cambridge: Cambridge University Press, p. 14, doi:10.1017/9781108304221.003, ISBN 978-1-108-41980-2
  10. ^ a b Waldman, Michael (2023). The supermajority: how the Supreme Court divided America (First Simon & Schuster hardcover ed.). New York London ; Toronto ; Sydney ; New Delhi: Simon & Schuster. ISBN 978-1-6680-0606-1.
  11. ^ Bork, Robert H. (January 1971). "Neutral Principles and Some First Amendment Problems". Indiana Law Journal. 47 (1). Retrieved April 1, 2016 – via Yale Law School.
  12. ^ a b c d e f Marcus, Ruth (December 1, 2022). "Opinion: Originalism is bunk. Liberal lawyers shouldn't fall for it". The Washington Post. Retrieved December 4, 2022.
  13. ^ B. Boyce, "Originalism and the Fourteenth Amendment", 2009. 33 Wake Forest L. Rev. 909.
  14. ^ Teles, Steven M. (2009). "Transformative Bureaucracy: Reagan's Lawyers and the Dynamics of Political Investment". Studies in American Political Development. 23 (1): 61–83. doi:10.1017/S0898588X09000030. ISSN 1469-8692.
  15. ^ Sawyer, Logan E. (2017). "Principle and Politics in the New History of Originalism". American Journal of Legal History. 57 (2): 198–222. doi:10.1093/ajlh/njx002. ISSN 0002-9319.
  16. ^ Baumgardner, Paul (2019). "Originalism and the Academy in Exile". Law and History Review. 37 (3): 787–807. ISSN 0738-2480.
  17. ^ a b Gorsuch, Neil (September 6, 2019). "Opinion: Gorsuch: Originalism Is Best Approach to the Constitution". Time. Retrieved November 13, 2023.
  18. ^ Sawyer, Logan (2021). "Originalism from the Soft Southern Strategy to the New Right: The Constitutional Politics of Sam Ervin Jr". Journal of Policy History. 33 (1): 32–59. doi:10.1017/S0898030620000238. ISSN 0898-0306.
  19. ^ "Originalist Scholarship and Conservative Politics - New Rambler Review". newramblerreview.com. Retrieved May 26, 2021.
  20. ^ Terbeek, Calvin (2021). ""Clocks Must Always Be Turned Back": Brown v. Board of Education and the Racial Origins of Constitutional Originalism". American Political Science Review. 115 (3): 821–834. doi:10.1017/S0003055421000095. ISSN 0003-0554. S2CID 233706358.
  21. ^ Liptak, Adam (October 10, 2022). "Justice Jackson Joins the Supreme Court, and the Debate Over Originalism". The New York Times. Retrieved November 22, 2023.
  22. ^ Mortenson, Julian Davis; Bagley, Nicholas (2021). "Delegation at the Founding". Columbia Law Review. 121 (2).
  23. ^ Greene, Jamal (November 2009). "On the Origins of Originalism". Texas Law Review. 88 (1): 1–89.
  24. ^ "Justice Brennan Calls Criticism of Court Disguised Arrogance". Associated Press. October 13, 1985. Archived from the original on March 7, 2016. Retrieved July 13, 2016 – via LA Times.
  25. ^ See Smith v. United States, 508 U.S. 223 (1993)
  26. ^ A. Scalia, A Matter of Interpretation, ISBN 978-0-691-00400-6, Amy Guttman ed. 1997, at p. 23.
  27. ^ Barnett, The Original Meaning of the Commerce Clause Archived October 19, 2020, at the Wayback Machine
  28. ^ a b Kersch, Ken I. "Beyond originalism: Conservative declarationism and constitutional redemption." Md. L. Rev. 71 (2011): 229.

References[edit]

Further reading[edit]

External links[edit]

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