Originalism Vs. Loose Construction: Understanding Judicial Interpretations

Originalism and loose construction are two theories of constitutional interpretation. Originalism is the notion that the meaning of the words in a constitutional provision is fixed at the time it was put into the Constitution, and that the original meaning of the words should be used when interpreting a law, instead of their current meanings. Originalism is often associated with strict construction, which is a hyper-literal interpretation of the Constitution that does not take into account the statute or how the word is used in the legal world. On the other hand, loose construction takes into consideration what the law is trying to accomplish, which may be more than what the text of the law explicitly states.

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Originalism and strict constructionism

Originalism is a theory of constitutional interpretation rooted in history. It calls for an understanding of the Constitution based on what the Constitution says and the original meaning of the words used in the text. Originalism is concerned with the fixation thesis, which states that the meaning of the words in the Constitution is fixed at the time it was written and is not changed by future linguistic changes in society. Originalism is often associated with textualism, which is the theory that legal texts should be interpreted based on the text's ordinary meaning and context. However, originalism differs from textualism in that it considers the original intent of the drafters of the Constitution.

Strict constructionism, on the other hand, is a legal philosophy of judicial interpretation that limits the powers of the federal government to those explicitly and clearly granted by the Constitution. It is a hyper-literal interpretation of the text, reading the words as they come without considering context or the statute. This can lead to absurd outcomes and contradictions with the commonly understood meaning of the law. Strict constructionism is often confused with textualism and originalism, but they are distinct theories that can even contradict each other. For example, textualists like Antonin Scalia have rejected strict constructionism, arguing that a literal interpretation can conflict with the original or commonly understood meaning of the text.

While originalism and strict constructionism are not the same, they are not mutually exclusive. Proponents of originalism often also support strict constructionism, as slight changes in the meanings of words are unlikely to change how a strict constructionist interprets the law. However, originalism and strict constructionism can come into conflict when considering the original intent of the Constitution's drafters, which is a key aspect of originalism but is rejected by strict constructionism.

The terms originalism and strict constructionism have been used in American politics to describe conservative approaches to constitutional interpretation. For example, Richard Nixon, Ronald Reagan, and George W. Bush have all expressed support for strict constructionism or originalism in the appointment of Supreme Court justices. However, the usage of these terms in politics has been criticised as simplistic and inappropriate, as constitutional interpretation is a complex and evolving field of study.

Originalism and textualism

Textualism, on the other hand, is the theory that legal texts, including the Constitution, should be interpreted based on the text's ordinary meaning. Textualists consider the context in which the words were used within the statute, but they reject extra-textual considerations such as the intent of the drafters or the problem the law is addressing. Textualism is often contrasted with strict constructionism, as it allows for a broader interpretation of the text that considers how a reasonable person would understand the text as a whole, rather than focusing on a hyper-literal reading of each individual word.

While originalism and textualism share similarities, they are distinct theories. Originalism focuses on interpreting the Constitution based on the original meaning of the words, while textualism is concerned with the ordinary or reasonable understanding of the text. Originalism is often associated with strict construction, while textualism is seen as a broader approach that considers the context of the statute. Textualism is also sometimes associated with dynamic or purposive interpretation, taking into account the purpose or intent behind the law, which is typically rejected by originalists.

The terms originalism and textualism are often used in legal debates, particularly during high-profile Supreme Court cases. Some justices, such as Antonin Scalia and Neil Gorsuch, have identified as both originalists and textualists, while others, like Elena Kagan, have stated that "we are all textualists now." These terms are not without criticism, as some scholars argue that they are vague and can be confusing or misused. Nonetheless, originalism and textualism remain important interpretive theories in constitutional interpretation, influencing judicial decisions and shaping legal discourse.

Originalism and the 'fixation thesis'

Originalism is a theory of constitutional interpretation that calls for an understanding of the Constitution based on what the Constitution says, rather than evolving societal standards. It involves interpreting a law using the meanings of the words at the time the law was written instead of their current meanings. Originalism is often associated with strict construction, which involves interpreting statutes narrowly and minimising their inroads into common law.

Originalism encompasses the theories that subscribe to the idea of the "fixation thesis". The fixation thesis holds that the linguistic meaning or communicative content of a constitutional text is fixed at the time it is written and adopted. It argues that the meaning of the words in the Constitution is forever fixed and unaffected by present interpretations or changes in language over time. The fixation thesis is based on the idea that communicative content is created through conventional semantic meanings and the context established by the understanding of the author and reader at the time of writing.

While the fixation thesis is considered uncontroversial by some, others argue that communicative content is never truly fixed. Critics of the fixation thesis, such as Frederick Mark Gedicks, claim that the original public meaning of the Constitution cannot exist in the past unaffected by the present. He proposes philosophical hermeneutics, which maintains that the meaning of any text is constituted by both the present and the past.

Living constitutionalists, who interpret the Constitution according to evolving societal standards, have a complex relationship with the fixation thesis. While some living constitutionalists explicitly or implicitly accept the fixation thesis, others propose theories like contemporary ratification, suggesting that the current meaning of the words is what matters. Overall, living constitutionalists argue that original meaning is relevant but should not always trump other considerations, such as historical practice, precedent, and constitutional values.

In conclusion, originalism and the fixation thesis are closely linked, with the fixation thesis providing a theoretical foundation for originalism. While some scholars argue for the acceptance of the fixation thesis as a commonsense understanding of how communication works, critics challenge this notion, asserting that the meaning of a text is not fixed and can be influenced by present interpretations and societal changes.

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Originalism and the 'living Constitution'

Originalism is a theory of constitutional interpretation that advocates for understanding the Constitution based on what it says, or the original meaning of the words within it. This is based on the idea that the meaning of the words in the Constitution was fixed at the time of its creation and is not changed by any future linguistic shifts in society. Originalists interpret laws by using the meanings of the words at the time they were written, rather than their current meanings. Originalism is often associated with strict construction, which is a hyper-literal interpretation of the Constitution without considering the context of the statute.

The concept of the "living Constitution" is a theory that calls for judges to interpret the Constitution according to evolving societal standards, rather than the exact language of the document. This theory suggests that judges should focus on what the Constitution ought to say if it were written in the present day, taking into account modern societal norms and values. The "living Constitution" theory is in direct contrast to originalism, as it prioritizes the adaptation of constitutional interpretation to fit contemporary contexts.

Originalism and the "living Constitution" represent two opposing approaches to constitutional interpretation. Originalism emphasizes the fixed and static nature of the Constitution, asserting that the meaning of its words remains unchanged. On the other hand, the "living Constitution" perspective advocates for a dynamic and evolving interpretation, adapting the Constitution's principles to modern societal standards. The "living Constitution" theory gained prominence in the 1960s, with critics of originalism arguing that it had become outdated and needed to be reinterpreted to align with contemporary values.

The debate between originalism and the "living Constitution" has been a topic of discussion among legal scholars and Supreme Court justices. Some justices, such as Antonin Scalia, have identified as originalists, while others, like Elena Kagan, have expressed support for the idea that "we are all originalists". The term textualism is often used in this debate, referring to the interpretation of the Constitution based on the ordinary meaning of its text, without considering external factors such as the intent of the drafters. Textualism is closely related to originalism but differs in that it focuses on the text's meaning at the time of interpretation rather than the original meaning.

In conclusion, originalism and the "living Constitution" represent contrasting approaches to constitutional interpretation. Originalism emphasizes the static nature of the Constitution's meaning, while the "living Constitution" advocates for a dynamic interpretation that adapts to evolving societal standards. The debate between these two perspectives has shaped legal discussions and judicial decisions, with proponents of each approach arguing for the relevance and applicability of their preferred method of constitutional interpretation.

Originalism and loose constructionism in practice

Originalism and loose constructionism are two approaches to interpreting the law. Originalism is the idea that the meaning of a law's wording is fixed at the time of its writing, and that this original meaning should be used when interpreting the law. This approach can be used in conjunction with either strict or loose constructionism. Strict constructionism is a hyper-literal interpretation of the law, without considering the statute itself or how the word is used in a legal context. Loose constructionism, on the other hand, involves interpreting a law by considering what it is trying to accomplish, which may be more than what the text explicitly states.

Originalism is often associated with conservative political ideologies. For example, in the 1968 election, Richard Nixon pledged to appoint justices who would interpret the law according to strict constructionism, and his appointees Warren Burger and William Rehnquist were considered strict constructionists. More recently, George W. Bush promised to appoint "strict constructionists in the mold of Justices Rehnquist, Scalia, and Thomas" during his 2000 campaign. However, it is important to note that Scalia rejected strict constructionism, referring to it as "a degraded form of textualism".

Loose constructionism, on the other hand, is associated with the idea of a "living Constitution", which calls for judges to interpret the Constitution according to evolving societal standards rather than its original language. This approach was particularly prominent in the 1960s, with justices of the Supreme Court largely ignoring the words of the Constitution in favour of a more dynamic interpretation.

In practice, the distinction between originalism and loose constructionism can be complex and subject to debate. For example, while textualism is often associated with originalism, some argue that they are not compatible because textualism rejects extra-textual considerations like intent. Additionally, the interpretation of laws can depend on the specific context and the judge's understanding of the text. As such, the terms "originalism" and "loose constructionism" may not always accurately reflect the nuances of legal interpretation.

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