How Originalism Shapes Constitutional Arguments And Law

Originalism is a legal theory in the United States that bases the interpretation of constitutional, judicial, and statutory texts on their original understanding at the time of their adoption. Originalists believe that the original public meaning of a constitutional text can be discerned from dictionaries, grammar books, legal documents, and the legal and public debate backdrop that led to a constitutional provision. Originalism is not to be confused with strict constructionism. Originalism is a theory focused on process, not substance, and seeks to conserve the meaning of the Constitution as it was written. Jurist Robert Bork is credited with proposing the first modern theory of originalism in his 1971 law review article, Neutral Principles and Some First Amendment Problems, published in The Yale Law Journal.

Explore related products

Constitutional Interpretation: The Basic Questions

$17 $31.49

Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review

$25.58 $37.99

American Constitutional Interpretation (University Casebook Series)

$285

The Impeachments of Donald Trump: An Introduction to Constitutional Interpretation (Coursebook)

$57

A Matter of Interpretation: Federal Courts and the Law - New Edition (The University Center for Human Values Series)

$18.49 $19.95

Constitutional Interpretation (Research Handbooks in Comparative Constitutional Law series)

$355

Originalism is a legal theory that bases interpretation on the original understanding at the time of its adoption

Originalism is a legal theory that bases the interpretation of constitutional, judicial, and statutory texts on the original understanding of the text at the time of its adoption. Originalists argue that the original public meaning of the text should be considered, rather than interpreting the text based on current social attitudes or the judge's political preferences. This approach seeks to conserve the meaning of the Constitution as it was written and understood by the public that ratified it.

The originalist theory of interpretation has been a topic of debate in the United States, particularly in the context of constitutional interpretation. Originalists, such as Supreme Court Justices Antonin Scalia, Amy Coney Barrett, Clarence Thomas, and Neil Gorsuch, argue that the original meaning of the Constitution should be upheld and that any changes should be made through democratic processes. They believe that interpreting the Constitution based on its original meaning ensures judicial objectivity and prevents judges from imposing their political preferences.

One example of an originalist interpretation is Justice Gorsuch's ruling in United States v. Carloss, where he held that the police violated the defendant's Fourth Amendment rights by entering the curtilage of his home without a warrant, despite posted "No Trespassing" signs. Originalists argue that this approach ensures the protection of individual rights as outlined in the Constitution.

However, critics of originalism argue that it can lead to politically conservative results and that it is a new concept not espoused by the Founding Fathers. They turn to the competing concept of the Living Constitution, which asserts that the Constitution should evolve and be interpreted based on the context of current times. Living constitutionalists believe that the meaning of the Constitution changes as social attitudes change and that it should be interpreted to reflect those changes.

The debate between originalism and living constitutionalism has significant implications for how the Constitution is understood and applied in practice. Originalism emphasizes the importance of adhering to the original understanding of the text, while living constitutionalism allows for more flexibility and adaptation to changing social and cultural norms.

Originalists believe in conserving the meaning of the Constitution as it was written

Originalism is a legal theory in the United States that bases the interpretation of the Constitution on the original understanding of the text at the time it became law. Originalists believe in conserving the meaning of the Constitution as it was written and intended at the time of its adoption. This is in contrast to living constitutionalists, who believe that the meaning of the Constitution evolves as social attitudes change.

Originalists argue that the original public meaning of the Constitution can be discerned from dictionaries, grammar books, and other legal documents, as well as the historical context and public debates that led to its provisions. They believe that the Constitution should be interpreted based on its original meaning, rather than being subject to judicial interpretation or activism. Originalism is often associated with a conservative political ideology, as it seeks to preserve the original intent of the Constitution, regardless of contemporary political consequences.

One example of originalist interpretation is the belief that the Fourteenth Amendment always forbade racial segregation, from its adoption in 1868 to the present day. Originalists argue that the Supreme Court's decision in Plessy v. Ferguson (1896) upholding segregation was erroneous, as it contradicted the original meaning of the Fourteenth Amendment. Living constitutionalists, on the other hand, believe that racial segregation was constitutional from 1877 to 1954 because it was supported by public opinion, and that it only became unconstitutional after the Supreme Court's decision in Brown v. Board of Education (1954).

Originalism has been a subject of debate among legal scholars and Supreme Court Justices. Some argue that originalism is applied selectively and often leads to conservative decision-making. Critics of originalism turn to the concept of a Living Constitution, which asserts that the Constitution should evolve and be interpreted in the context of current times. However, originalists counter that the Constitution should be modified through democratic processes, such as legislative action or constitutional amendment, rather than judicial interpretation.

Originalism is unpopular outside the US, where textualism is recommended to respond to judicial activism

Originalism is a theory that asserts that the constitutional text should be given the original public meaning it had when it became law. Originalists believe that the original meaning of the constitutional text can be discerned from dictionaries, grammar books, and other legal documents. They argue that the original meaning is an objective legal construct that exists independently of the intentions of those who wrote it. Originalism is particularly popular in the US, with some arguing that it is the best approach to understanding the US Constitution. For instance, Justice Neil Gorsuch has written and ruled on many originalist cases.

However, originalism is unpopular outside the US, where it is often seen as a conservative ideology that could lead to undesirable outcomes. Critics of originalism, such as Professor Cass Sunstein, argue that originalism could lead to conclusions that allow states to ban the purchase and sale of contraceptives, discriminate based on race and gender, bring back segregation, and establish an official religion. These potential outcomes are considered highly problematic and contrary to modern values and human rights.

In contrast to originalism, textualism is recommended as a judicial approach outside the US, particularly as a response to judicial activism. Textualism emphasizes the linguistic meaning of a legal text, focusing on what an ordinary person would understand the text to mean. Textualists argue that the role of judges is to enforce the Constitution and laws that conform to it. They believe that judges should interpret the Constitution as it is written, even if the results are not desirable. Textualism is seen as a way to safeguard the Constitution, the rule of law, and a workable governmental system.

While originalism may be favored by some in the US, it is important to recognize that it is not without its critics, even within the country. Some argue that originalism can lead to bad results and politically conservative outcomes. Additionally, the idea of a "living Constitution," where the meaning changes according to judges' perceptions, is often debated. However, outside the US, originalism is generally unpopular, and textualism is promoted as a more flexible and context-sensitive approach to interpreting the law.

Explore related products

American Constitutional Interpretation, 5th (University Casebook Series)

$433.55

American Revolution: A Constitutional Interpretation: 9

$7.59 $9

Contemporary Perspectives On Constitutional Interpretation

$52.43 $68.99

Constitutional Interpretation: Rights of the Individual, Volume 2

$153.91 $217.95

Memory and Authority: The Uses of History in Constitutional Interpretation (Yale Law Library Series in Legal History and Reference)

$35 $21.49

Originalism: A Quarter-Century of Debate

$46.56

Originalism is a theory focused on process, not substance

Originalism is a legal theory that focuses on interpreting the US Constitution based on its original understanding at the time of its adoption. It is a process-oriented theory that seeks to conserve the Constitution's original meaning rather than focusing on political substance. Originalists argue that the constitutional text should be given the public meaning it had when it became law, regardless of contemporary political consequences. This meaning can be discerned from dictionaries, grammar books, legal documents, legal events, and public debates from that time.

Originalism is often associated with US conservatism, but proponents argue that it is not politically motivated. Instead, it aims to conserve the original meaning of the Constitution, which may lead to "`liberal`" results in some cases. For example, Justice Neil Gorsuch, a proponent of originalism, has ruled in favour of protecting the Fourth Amendment rights of individuals, regardless of political considerations.

Living constitutionalists, on the other hand, believe that the meaning of the Constitution evolves with changing social attitudes. They argue that the Constitution should be updated to encompass societal needs, and they accept that judicial activism can play a role in this evolution. Living constitutionalists might argue that originalism, by contrast, is a rigid approach that fails to adapt to modern contexts.

Critics of originalism, such as Supreme Court Justice William J. Brennan Jr., have described it as "arrogant" and politically motivated. They argue that it is impossible to accurately gauge the intent of the framers of the Constitution and that originalism can lead to undesirable outcomes. For example, in the Dred Scott and Korematsu cases, majorities upholding executive internment and slavery disregarded originalist principles and the Constitution's original meaning.

Originalism is a family of theories of constitutional interpretation and can refer to original intent or original meaning

Originalism is a theory of legal interpretation, including the interpretation of the Constitution. Originalists believe that the Constitution should be interpreted according to the original public meaning that it would have had at the time it became law. This original public meaning can be discerned from dictionaries, grammar books, and other legal documents, as well as the background legal events and public debates that led to a constitutional provision. Originalism can refer to either the original intent or the original meaning of the text.

Original intent originalism refers to the subjective "intentions" of those who wrote the text or the "original expected applications" that the Framers of a constitutional text thought it would have. For example, Robert Bork, in his 1971 law review article, proposed that judges should "take from the document [...] specific values that text or history show the framers actually to have intended and which are capable of being translated into principled rules." Similarly, Raoul Berger, in Government by Judiciary (1977), argued that rulings by the Warren and Burger Courts were illegitimate because they deviated from the Constitution's original intent.

Original meaning originalism, on the other hand, focuses on the objective meaning of the constitutional text at the time it was ratified. This meaning can be understood by looking at how the public that ratified the Constitution would have generally understood it. Justice Amy Coney Barrett, for instance, interprets the Constitution "as text, and I understand it to have the meaning that it had at the time people ratified it." Original meaning originalism does not take into account the subjective intentions of the Framers of the Constitution.

Originalism stands in contrast to the competing concept of the Living Constitution, which asserts that the Constitution should evolve and be interpreted based on the context of the current times. Living constitutionalists believe that the meaning of the Constitution changes over time as social attitudes change. For example, living constitutionalists believe that racial segregation was constitutional from 1877 to 1954 because public opinion favored it, and it only became unconstitutional after the Supreme Court decision in Brown v. Board of Education (1954). In contrast, originalists believe that the Fourteenth Amendment always forbade racial segregation, from its adoption in 1868 to the present day.

Frequently asked questions