Originalism

Originalism is a method of constitutional and statutory interpretation. Most Originalists assert that legal text should be interpreted based on the original understanding at the time of adoption, while some also incorporate original intent. Originalists object to the idea of Judicial activism and other significant legal evolution being driven by judges misusing (to them) the common law framework. Instead, Originalists argue for democratic modifications of laws through the Legislature or through Constitutional amendment.^[1]

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.^[2] 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.^[3] Critics of originalism often turn to the competing concept of the Living Constitution, which asserts that a constitution should evolve and be interpreted based on the context of current times.^[4]^[5]

"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.^[6]

History

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.^[7] 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.^[8]^[9]^[10]

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.^[11]^[12]^[13] The term "originalism" was coined by liberal critic Paul Brest in 1980.^[13]^[14] 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.^[13] The Department of Justice under the Ronald Reagan administration played an important role in lending legitimacy to originalism in the 1980s.^[15]^[16]^[17]

The first modern originalist on the Supreme Court was Justice Scalia, followed by Thomas and Alito. President Trump's appointees are seen to mostly follow originalism.^[13]

In May 2024, conservative justices on the Supreme Court are reported to be considering new alternative interpretations of originalism.^[18]

Originalism has influenced many areas of law in the United States.^{[citation needed]} The Seventh Amendment to the United States Constitution^[19] and the Second Amendment to the United States Constitution have been subject to originalist interpretations in some major cases.^[20]^[21]

Supreme Court Justice Antonin Scalia (*pictured*) was a firm believer in originalism.

Original meaning

There are different forms of Originalism, including those which focus on the original meaning of the Constitution.^{[citation needed]} Justice Scalia, Originalism's chief architect,^[22] defined himself as believing in original meaning:

The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.^[23]

Debate

Support

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.^[24] Gorsuch claims that cases like Dred Scott and Korematsu cannot be defended when examining the Constitution's original meaning.^[24] 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.^[25] According to University of Toledo law professor Lee J. Strang, early versions of originalism ("not the sophisticated, more-fully explicated originalism of today") were used at the Founding up until the 1930s.^[8]

Opposition

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.^[26]

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.^[27]

Michael Waldman argues that originalism is a new concept, and not one espoused by the founders.^[11] He also criticizes conservatives as embracing originalism because it was conservative, not embracing conservatism because it was originalist.^[13]

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.^[28]

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.^[13]

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.^[29]

Justice William J. Brennan Jr. described originalism as "arrogance cloaked as humility"^[30] 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

International Law and Originalism

Many Originalists reject any consideration of International law (with an exception for British law before 1791).^{[citation needed]} Justice Scalia, echoing Chief Justice John Marshall in Marbury 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."^[31]

Strict constructionism

Antonin 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).^[32] 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".^[33]

Legal scholar Randy Barnett asserts that originalism is a theory of interpretation and that constructionism is only appropriate when divining the original intent proves difficult.^[34]

Declarationism

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.^[35] Harry V. Jaffa and Clarence Thomas have been cited as proponents of this school of thought.^[35]

References

^ Alt, Robert (November 15, 2022). "Originalism Bolsters the Democratic Process by Checking Judges". Retrieved May 3, 2024.
^ 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.
^ Fontana, David (December 1, 2010), "Comparative Originalism", Texas Law Review, vol. 88, p. 189, SSRN 1753013, retrieved January 10, 2024
^ Ackerman, Bruce (January 1, 2017). "The Holmes Lectures: The Living Constitution". Yale University Law School.
^ Vloet, Katie (September 22, 2015). "Two Views of the Constitution: Originalism vs. Non-Originalism". University of Michigan Law.
^ 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.
^ Schultz, David Andrew (2009). Encyclopedia of the United States Constitution. Facts on File. p. 164. ISBN 9781438126777.
^ ^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.
^ Currie, David P. (2005). The Constitution in Congress: Democrats and Whigs 1829–1861. Chicago: University of Chicago Press. pp. xiii. ISBN 978-0226129006.
^ 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
^ ^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.
^ 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.
^ ^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.
^ B. Boyce, "Originalism and the Fourteenth Amendment", 2009. 33 Wake Forest L. Rev. 909.
^ 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.
^ 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.
^ Baumgardner, Paul (2019). "Originalism and the Academy in Exile". Law and History Review. 37 (3): 787–807. doi:10.1017/S0738248019000336. ISSN 0738-2480. JSTOR 26756361.
^ Bazelon, Emily (April 29, 2024). "How 'History and Tradition' Rulings Are Changing American Law - A new legal standard is gaining traction among conservative judges — one that might turn back the clock on drag shows, gun restrictions and more". The New York Times. Archived from the original on April 29, 2024. Retrieved April 29, 2024.
^ Miller, Darrell A.H. (2013). "Text, History, and Tradition: What the Seventh Amendment Can Teach Us About the Second". Yale Law Journal. 122 (4). Retrieved May 7, 2024.
^ Ford, Matt (November 9, 2023). "Conservatives' Favorite Legal Doctrine Crashes into Reality". The New Republic.
^ Blocher, Joseph; Ruben, Eric (2023). "Originalism-by-Analogy and Second Amendment Adjudication". Yale Law Journal. 133: 99. Retrieved May 7, 2024.
^ Vermeule, Adrian (October 27, 2022). "Was Antonin Scalia originally an originalist?". Harvard Law Today. Harvard Law School. Retrieved May 7, 2024.
^ See A. Scalia, A Theory of Constitution Interpretation, speech at Catholic University of America, 10/18/96.
^ ^a ^b Gorsuch, Neil (September 6, 2019). "Opinion: Gorsuch: Originalism Is Best Approach to the Constitution". Time. Retrieved November 13, 2023.
^ 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.
^ 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.
^ Liptak, Adam (October 10, 2022). "Justice Jackson Joins the Supreme Court, and the Debate Over Originalism". The New York Times. Retrieved November 22, 2023.
^ Mortenson, Julian Davis; Bagley, Nicholas (2021). "Delegation at the Founding". Columbia Law Review. 121 (2).
^ Greene, Jamal (November 2009). "On the Origins of Originalism". Texas Law Review. 88 (1): 1–89.
^ "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.
^ Scalia, Antonin; Garner, Bryan A. (2011). Reading Law: The Interpretation of Legal Texts. St. Paul, MN: West Group. ISBN 978-0314275554.
^ See Smith v. United States, 508 U.S. 223 (1993)
^ A. Scalia, A Matter of Interpretation, ISBN 978-0-691-00400-6, Amy Guttman ed. 1997, at p. 23.
^ Barnett, The Original Meaning of the Commerce Clause Archived October 19, 2020, at the Wayback Machine
^ ^a ^b Kersch, Ken I. "Beyond originalism: Conservative declarationism and constitutional redemption." Md. L. Rev. 71 (2011): 229.

References

Barnett, Randy E. (2004). Restoring the Lost Constitution: The Presumption of Liberty. Princeton, New Jersey: Princeton University Press. ISBN 978-0691115856.
Calabresi, Steven G., ed. (2007). Originalism: A Quarter-Century of Debate. Washington, DC: Regnery Pub. Inc. ISBN 978-1-59698-050-1.
Chemerinsky, Erwin (2022). Worse Than Nothing: The Dangerous Fallacy of Originalism. New Haven, Connecticut: Yale University Press. ISBN 978-0300259902. Review
Kesavan, Vasan and Paulsen, Michael Stokes. "The Interpretive Force of the Constitution's Secret Drafting History", 91 Georgetown Law Journal 1113 (2003).
Lawson, Gary S. "On Reading Recipes — and Constitutions", 85 Georgetown Law Journal 1823 (1997).
Rakove, Jack N. (1996). Original Meanings: Politics and Ideas in the Making of the Constitution. New York: Alfred A. Knopf. ISBN 0-394-57858-9.
Whittington, Keith E. (1999). Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review. Lawrence, Kansas: University Press of Kansas. ISBN 0-7006-0969-5.
Strang, Lee J. (2019). Originalism's Promise: A Natural Law Account of the American Constitution. Cambridge University Press. doi:10.1017/9781108688093. ISBN 978-1108475631. LCCN 2019000042.

External links

The Originalism Blog at the Center for the Study of Constitutional Originalism at the University of San Diego School of Law
Lecture by Antonin Scalia at Woodrow Wilson Center via Center for Individual Freedom comparing and contrasting originalism from the "living constitution" approach (2005)

[1] Alt, Robert (November 15, 2022). "Originalism Bolsters the Democratic Process by Checking Judges". Retrieved May 3, 2024.

[2] 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.

[3] Fontana, David (December 1, 2010), "Comparative Originalism", Texas Law Review, vol. 88, p. 189, SSRN 1753013, retrieved January 10, 2024

[4] Ackerman, Bruce (January 1, 2017). "The Holmes Lectures: The Living Constitution". Yale University Law School.

[5] Vloet, Katie (September 22, 2015). "Two Views of the Constitution: Originalism vs. Non-Originalism". University of Michigan Law.

[TL-19950308-6] 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.

[7] Schultz, David Andrew (2009). Encyclopedia of the United States Constitution. Facts on File. p. 164. ISBN 9781438126777.

[OriginalismsPromise-8] 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.

[DemocratsWhigs-9] Currie, David P. (2005). The Constitution in Congress: Democrats and Whigs 1829–1861. Chicago: University of Chicago Press. pp. xiii. ISBN 978-0226129006.

[OriginsOriginalism-10] 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

[:2-11] 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.

[12] 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.

[WP-20221201-13] ^ ^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.

[Boyce-14] B. Boyce, "Originalism and the Fourteenth Amendment", 2009. 33 Wake Forest L. Rev. 909.

[15] 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.

[16] 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.

[17] Baumgardner, Paul (2019). "Originalism and the Academy in Exile". Law and History Review. 37 (3): 787–807. doi:10.1017/S0738248019000336. ISSN 0738-2480. JSTOR 26756361.

[NYT-20240429-18] Bazelon, Emily (April 29, 2024). "How 'History and Tradition' Rulings Are Changing American Law - A new legal standard is gaining traction among conservative judges — one that might turn back the clock on drag shows, gun restrictions and more". The New York Times. Archived from the original on April 29, 2024. Retrieved April 29, 2024.

[19] Miller, Darrell A.H. (2013). "Text, History, and Tradition: What the Seventh Amendment Can Teach Us About the Second". Yale Law Journal. 122 (4). Retrieved May 7, 2024.

[20] Ford, Matt (November 9, 2023). "Conservatives' Favorite Legal Doctrine Crashes into Reality". The New Republic.

[21] Blocher, Joseph; Ruben, Eric (2023). "Originalism-by-Analogy and Second Amendment Adjudication". Yale Law Journal. 133: 99. Retrieved May 7, 2024.

[22] Vermeule, Adrian (October 27, 2022). "Was Antonin Scalia originally an originalist?". Harvard Law Today. Harvard Law School. Retrieved May 7, 2024.

[23] See A. Scalia, A Theory of Constitution Interpretation, speech at Catholic University of America, 10/18/96.

[:1-24] Gorsuch, Neil (September 6, 2019). "Opinion: Gorsuch: Originalism Is Best Approach to the Constitution". Time. Retrieved November 13, 2023.

[25] 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.

[:0-26] 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.

[27] Liptak, Adam (October 10, 2022). "Justice Jackson Joins the Supreme Court, and the Debate Over Originalism". The New York Times. Retrieved November 22, 2023.

[28] Mortenson, Julian Davis; Bagley, Nicholas (2021). "Delegation at the Founding". Columbia Law Review. 121 (2).

[29] Greene, Jamal (November 2009). "On the Origins of Originalism". Texas Law Review. 88 (1): 1–89.

[30] "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.

[31] Scalia, Antonin; Garner, Bryan A. (2011). Reading Law: The Interpretation of Legal Texts. St. Paul, MN: West Group. ISBN 978-0314275554.

[32] See Smith v. United States, 508 U.S. 223 (1993)

[33] A. Scalia, A Matter of Interpretation, ISBN 978-0-691-00400-6, Amy Guttman ed. 1997, at p. 23.

[34] Barnett, The Original Meaning of the Commerce Clause Archived October 19, 2020, at the Wayback Machine

[:3-35] Kersch, Ken I. "Beyond originalism: Conservative declarationism and constitutional redemption." Md. L. Rev. 71 (2011): 229.

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Originalism

History

Original meaning

Debate

Support

Opposition

Related positions

International Law and Originalism

Strict constructionism

Declarationism

See also

References

References

Further reading

External links

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