Malcolm Rivera
Originalism is a theory of interpretation of legal texts, including the text of the Constitution. Originalists believe that the constitutional text should be given the original public meaning that it would have had at the time it became law. Originalism is usually contrasted with Living Constitutionalism, which asserts that a constitution should evolve and be interpreted based on the context of current times. Originalism is a modest theory of constitutional interpretation rooted in history that was increasingly forgotten during the 20th century.
| Characteristics | Values |
|---|---|
| Legal theory | Interpretation of the constitutional text |
| Interpretation | Original understanding at the time of adoption |
| Objective | Judges should not input their own values |
| Original meaning | Independent of the intentions of the writers |
| Original meaning | Independent of the "original expected applications" |
| Original public meaning | How the public that ratified it would have understood it |
| Original intent | The intentions of the framers |
| Originalism vs. Textualism | Textualism is a subset of originalism |
| Originalism | Contrasted with Living Constitutionalism |
| Living Constitutionalism | The meaning of the text changes as social attitudes change |
| Living Constitutionalism | The constitution should evolve and be interpreted in the context of current times |
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What You'll Learn
Originalism vs. Living Constitutionalism
Originalism is a theory of constitutional interpretation that argues for an understanding of the Constitution based on its original meaning and understanding at the time of its adoption. Originalists believe that the interpretation of the Constitution should not change over time and that any modifications to laws should be made through democratic processes such as legislative action or constitutional amendment. Originalism is often associated with judicial restraint, where judges interpret the Constitution as it was originally intended, rather than injecting their own values or interpretations.
Living Constitutionalism, on the other hand, is a competing theory that asserts that the Constitution should evolve and change along with societal values and standards. Living Constitutionalists believe that the meaning of the Constitution is not static and can change over time without the need for formal amendments. They argue that the interpretation of the Constitution should reflect the current context and societal attitudes, even if it differs from the original intent of the document.
The debate between Originalism and Living Constitutionalism has divided legal scholars and the American public. Originalists argue that Living Constitutionalism undermines the purpose of the Constitution and the institutions it established. They believe that the original meaning of the Constitution can be discerned from dictionaries, grammar books, legal documents, and the historical context in which it was written. Notable originalists include Justice Antonin Scalia, Justice Amy Coney Barrett, and Justice Clarence Thomas.
Living Constitutionalists, however, argue that some aspects of the Constitution were intentionally vague to allow for future interpretation. They believe that the Constitution should be interpreted in a way that reflects the changing values and needs of society. Living Constitutionalists point to cases such as Brown v. Board of Education, where the Supreme Court's decision changed and improved the Constitution by rendering racial segregation unconstitutional, even though it was once considered constitutional due to public opinion.
While Originalism calls for a static interpretation of the Constitution, Living Constitutionalism allows for more flexibility and adaptation to modern times. The debate between these two theories of constitutional interpretation continues to shape legal culture, practice, and academia in the United States.
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Originalism vs. Textualism
Originalism and textualism are two theories of constitutional interpretation. Originalism is the theory that the US Constitution should be interpreted based on its original meaning at the time it was written. Originalists believe that the original meaning of the Constitution can be discerned from dictionaries, grammar books, and other legal documents, as well as the historical context in which it was written. They argue that this approach produces objective legal rulings that are faithful to the true intentions of the Founding Fathers.
Textualism, on the other hand, is the theory that legal texts, including the Constitution, should be interpreted based on the ordinary meaning of the text, without considering factors outside of it, such as the intent of the drafters. Textualists argue that the meaning of the text should be understood by a reasonable person, and that this approach ensures that the interpretation of the Constitution is not influenced by the personal values or political preferences of judges.
The relationship between originalism and textualism is complex and has been the subject of debate among legal scholars and Supreme Court justices. Some, like Justice Scalia, have identified as both an originalist and a textualist, while others have argued that the two approaches are incompatible. Those who hold this view point out that originalism relies on historical sources and legislative history to determine the original public meaning of the Constitution, while textualism rejects extra-textual considerations like intent and legislative history in favour of interpreting the text based on its ordinary meaning.
The debate between originalism and textualism has important implications for how the Constitution is interpreted and applied in modern times. For example, in the case of District of Columbia v. Heller (2008), the Supreme Court's originalist interpretation of the Second Amendment struck down a law regulating the use of firearms. This interpretation expanded Second Amendment rights and was based on the original understanding of liberty at the time the Constitution was written, which some argue is at odds with the views of the Founders.
In conclusion, while originalism and textualism both offer theories of constitutional interpretation, they differ in their approach and scope. Originalism focuses specifically on interpreting the Constitution based on its original meaning, while textualism applies to all legal texts and considers the ordinary meaning of the text without considering external factors. The debate between originalism and textualism highlights the challenges of interpreting a document like the US Constitution, which is open to different interpretations and has evolved over time.
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Originalism's revival in the 1980s
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. Originalism is often contrasted with Living Constitutionalism, which asserts that the Constitution should evolve and be interpreted based on current societal standards. While Living Constitutionalists believe that the Constitution was constitutional from 1877 to 1954 due to public opinion, Originalists believe that the Fourteenth Amendment always forbade racial segregation.
During the 1980s, liberal members of the legal academy criticized the original intent formulated by jurist Robert Bork, Raoul Berger, and Meese. Bork, in his 1971 law review article, proposed that judges should interpret constitutional texts based on the specific values that the text or history show the framers intended, rather than inputting their values. Berger expanded on this theory in his 1977 book, arguing that the rulings by the Warren and Burger Courts were illegitimate as they deviated from the Constitution's original intent. The conservative originalist movement, spearheaded by Berger in the 1980s, called for judicial restraint and a return to interpreting the Constitution as it was understood at the time of its ratification.
The debate around originalism grew more heated with the failed Supreme Court nomination of Bork in 1986, and by the 1990s, originalism had become a broadly endorsed view in the conservative legal movement. The Department of Justice under the Reagan administration played a significant role in lending legitimacy to originalism during this period. Originalism greatly influenced American legal culture, practice, and academia, and by 2020, it had gained mainstream acceptance.
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Originalism and the Fourteenth Amendment
Originalism is the belief that the Constitution must be interpreted according to the original meaning it had at the time of ratification. This is based on the principles of popular sovereignty, which state that the Constitution's legitimacy comes from the fact that it was ratified by the American people through a supermajoritarian process.
The Fourteenth Amendment, adopted in 1868, significantly altered the Constitution by granting the federal judiciary and Congress new powers to protect the fundamental rights of individuals from state violations. It was a response to the failure of abolition alone to prevent Southern repression and ensure civil equality. The Amendment enshrined the concept of Republican citizenship and gave Congress the power to ensure equality before the law.
However, the originalist interpretation of the Fourteenth Amendment is a complex issue. The Amendment was enacted by a rump Reconstruction Congress in which the Southern states were denied representation and under military rule, thus lacking democratic legitimacy through original popular sovereignty. This challenges the originalist argument that the Constitution should be interpreted according to its meaning at the time of ratification, as the Fourteenth Amendment's ratification was not representative of the collective assent of the American people.
Some scholars, like Thomas B. Colby, argue that the originalist case faces particular hurdles when applied to the Fourteenth Amendment due to the circumstances of its enactment. Additionally, Randy Barnett and Evan Bernick contend that the Supreme Court has often misunderstood or ignored the original meaning of the Amendment's key clauses, such as those covering privileges and immunities of citizenship, due process of law, and equal protection of the laws.
In the context of Fourteenth Amendment privacy claims related to abortion, sexual conduct, and same-sex marriage, there is a debate between originalist and non-originalist interpretations. Critics of originalism argue that it does not provide clear standards to control the Supreme Court's discretion. They suggest that non-originalist interpretations based on contemporary American societal values may be more effective in constraining the Court's decisions.
Despite these complexities and criticisms, originalism continues to play a role in interpreting the Fourteenth Amendment, as seen in the case of Baze v. Rees, where Justice Thomas, an originalist, argued for adhering to the original understanding of the Eighth Amendment in the context of the Fourteenth Amendment.
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Originalism and the Supreme Court
Originalism is a theory of interpretation of legal texts, including the text of the Constitution. Originalists believe that the constitutional text should be given the original public meaning that it would have had at the time that it became law. Originalism is usually contrasted with Living Constitutionalism, which asserts that a constitution should evolve and be interpreted based on the context of current times. Living constitutionalists believe that the meaning of the constitutional text changes over time, as social attitudes change.
Originalism is a legal theory in the United States that bases constitutional, judicial, and statutory interpretation of text on the original understanding at the time of its adoption. Originalists argue for democratic modifications of laws through the legislature or through constitutional amendment. Originalism consists of a family of different theories of constitutional interpretation and can refer to original intent or original meaning.
Originalism's revival in the 1980s was a reaction to the theory of the "Living Constitution". The theory called for judges to interpret the Constitution, not according to its language, but rather according to evolving societal standards. In other words, judges were not to focus on what the Constitution says, but what it ought to say if it were written in the present day.
Originalism has been a topic of debate in the Supreme Court. Justice Neil Gorsuch is a proponent of originalism and has written several originalist rulings with "liberal" results. For example, in United States v. Carloss, Gorsuch ruled that the police violated a criminal defendant's Fourth Amendment rights by entering the curtilage of his home without a warrant despite four posted no trespassing signs. In Sessions v. Dimaya, Gorsuch ruled that an immigrant couldn’t be punished according to a law so vague that judges were forced to give it content by fiat.
Justices Antonin Scalia, Amy Coney Barrett, Clarence Thomas, and Neil Gorsuch describe themselves as originalists in scholarly writings and public speeches. 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.
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Frequently asked questions
Originalism is a legal theory that interprets the constitution based on the original understanding of its text at the time of its adoption. Originalists believe that the constitutional text should be interpreted based on the original public meaning it would have had when it became law.
The original public meaning of the constitution can be determined by referring to dictionaries, grammar books, and other legal documents from the time. It can also be inferred from the background legal events and public debate that led to the constitutional provision.
Living constitutionalists believe that the meaning of the constitution changes over time as social attitudes change. They argue that the constitution should be interpreted based on current societal values and standards. Originalists, on the other hand, believe that the constitution should be interpreted based on its original meaning and that judges should not impose their own personal values on it.
