Jonah Patel
Originalism is a legal theory that interprets a constitution like a statute, giving it the meaning that its words were understood to have at the time of their promulgation. Originalists believe that the original public meaning of the constitutional text should be discerned from dictionaries, grammar books, legal documents, and the historical and political context of its time. The opposite of an originalist is a living constitutionalist, who believes that the meaning of the constitutional text changes over time as social attitudes evolve. Living constitutionalists argue that the constitution should be interpreted based on the context of the current era, and that judges should focus on what the constitution ought to say if it were written today.
| Characteristics | Values |
|---|---|
| Interpretation of the Constitution | Evolving societal standards |
| Judges should interpret the Constitution based on what it ought to say if it were written today | |
| The meaning of the Constitution changes over time as social attitudes change | |
| The Constitution should evolve and be interpreted based on the context of the current times | |
| Interpretation of Legal Texts | The original meaning of the text |
| The original public meaning at the time it became law | |
| The original understanding at the time of its adoption |
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What You'll Learn
Originalism vs. Textualism
Originalism and textualism are two legal theories that have been the subject of much debate, particularly during high-profile Supreme Court cases. While some have claimed to be both originalists and textualists, others argue that the two theories are incompatible.
Originalism treats a constitution like a statute, interpreting it based on the meaning the words carried at the time of writing. It emerged in the 1970s as a reaction to the "Living Constitution" theory, which called for judges to interpret the Constitution according to evolving societal standards rather than its original language. Originalism has two variations: "original intent", which interprets the Constitution based on what its drafters originally intended, and "original meaning", which focuses on the general understanding of the words used at the time, regardless of the drafters' intentions.
Textualism, on the other hand, refers to interpreting all legal texts, including the Constitution, based on the ordinary meaning of the text. Textualists ignore factors outside the text, such as the problem being addressed or the drafters' intentions. Textualism was developed to avoid some of the messier implications of originalism, particularly the difficulty of determining the original intent of the drafters.
While some argue that originalism and textualism are compatible, with textualism being a subset of originalism, others claim that they are fundamentally incompatible. The tension between the two approaches lies in their treatment of legislative history. Originalists embrace historical sources to determine the "original public meaning" of the Constitution, while textualists reject extra-textual considerations like intent and purpose. This discrepancy has led to debates about whether originalists can legitimately utilize certain sources while shunning others.
In conclusion, originalism and textualism are legal theories that approach the interpretation of legal texts, particularly the Constitution, from different perspectives. While originalism focuses on the meaning of the words at the time of writing, textualism interprets the ordinary meaning of the text, setting aside factors not explicitly mentioned in the text. The debate between originalism and textualism continues, with scholars and jurists offering various arguments to support their preferred approach.
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Originalism vs. Living Constitutionalism
Originalism and living constitutionalism are two opposing theories of constitutional interpretation. Originalism, a legal theory that emerged in the 1970s and gained prominence in the 1980s, holds that the meaning of a constitution is fixed at the time of its ratification. Originalists argue that judges should interpret the constitution based on its original public meaning, using sources such as dictionaries, grammar books, legal documents, and the historical context. They believe that the constitution should be interpreted according to its original understanding, regardless of evolving societal standards or the judge's personal values. Originalism is often associated with judicial restraint and a rejection of judicial activism.
On the other hand, living constitutionalism is a theory that asserts that the meaning of a constitution evolves over time as social attitudes change. Living constitutionalists believe that judges should interpret the constitution based on current societal standards and values, rather than being bound by its original meaning. This approach allows for the constitution to adapt to changing social and cultural norms without the need for formal constitutional amendments. According to living constitutionalists, racial segregation, for example, was considered constitutional from 1877 to 1954 due to public opinion, and it was only after the Supreme Court decision in Brown v. Board of Education (1954) that it became unconstitutional.
The debate between originalism and living constitutionalism has divided legal scholars, judges, and the American public. Originalists argue that originalism provides a neutral and objective framework for interpretation, while living constitutionalists critique it for being inflexible and unable to adapt to modern contexts. On the other hand, critics of living constitutionalism argue that it gives judges too much discretion and allows them to inject their own values into the interpretation of the law.
Prominent originalists include Justices Antonin Scalia, Amy Coney Barrett, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh. These justices have described themselves as originalists and have interpreted the constitution based on its original meaning. On the other hand, Supreme Court Justice Elena Kagan is a frequent critic of conservative originalism and argues for a more flexible interpretation that allows for future generations to interpret the constitution along with the times.
The appointment of justices by different US presidents has also influenced the prominence of originalism and living constitutionalism in the Supreme Court. President Ronald Reagan appointed several originalists to key positions, bringing originalism to the forefront. Subsequently, President Trump's appointments solidified originalism as the reigning philosophy of the court. However, despite their shared ideology, originalists on the court have also faced challenges due to theoretical disagreements among themselves.
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Original Intent
Originalism, the theory that stands in contrast to living constitutionalism, treats a constitution like a statute. Originalists believe that the constitution should be interpreted based on the original meaning of the text and the original intent of its drafters. They argue that the constitution has a permanent, static meaning that is independent of the subjective intentions of those who wrote it. This means that the interpretation of the constitution should be based on the understanding of the public that ratified it at the time. Originalists argue for democratic modifications of laws through the legislature or constitutional amendment.
Originalism in its modern form emerged in the 1970s as a reaction to the "Living Constitution" theory. 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 standards and what it would say if it were written today. This theory allows for the constitution to evolve and be interpreted in the context of the current era.
The first originalists, including jurist Robert Bork, proposed this theory as a principled alternative to the ad hoc, politically opportunistic approach to legal interpretation. Bork suggested that judges should follow the original meaning of the constitution to avoid inputting their own values into the interpretation. Originalism gained prominence in the 1980s when President Ronald Reagan appointed originalists to key administration positions and the courts.
While originalism and textualism are often used interchangeably, they differ in scope. Textualism is a subset of originalism that focuses on interpreting legal texts based on the meaning of the words at the time of writing, without considering the intent of the drafters. Textualists take the words of the constitution as they were promulgated to the people and interpret them based on their understood meaning.
In conclusion, originalism, specifically original intent, is a theory of constitutional interpretation that seeks to ground judicial decisions in the text and history of the constitution. It emphasizes interpreting the constitution based on the original intent of its drafters and the understanding of the public at the time of its ratification. This approach stands in contrast to living constitutionalism, which allows for the evolution of the constitution's meaning to align with changing social attitudes.
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Original Meaning
Originalism is a legal theory that interprets the constitution based on its original meaning and understanding at the time of its adoption. Originalists believe that the constitution should be interpreted based on the original public meaning it had when it became law. This meaning can be discerned from dictionaries, grammar books, legal documents, and the historical context surrounding its adoption. Originalists argue that the constitution has a permanent, static meaning that is independent of the intentions of those who wrote it.
The theory of originalism emerged in the 1970s as a reaction to the "Living Constitution" theory. Living constitutionalists believe that the constitution should evolve and change over time as societal attitudes change. They argue that judges should interpret the constitution based on current societal standards and what it would say if it were written today, rather than its original language.
Originalism gained prominence in the 1980s during the Reagan administration, when many originalists were appointed to key positions and courts. However, it was not until the appointments of Justices Thomas and Alito, and later with Trump's three appointments to the court, that originalism became the majority philosophy.
Originalists on the Supreme Court, such as Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, interpret the constitution according to its original meaning at the time of ratification. They argue that judges should resist imposing their own political preferences and instead adhere to the original understanding of the text.
The original meaning of the constitution can be complex and may not fully address modern disputes. Originalist justices have shown themselves to be divided on how to approach these theoretical disagreements while maintaining a majority to move the law in an originalist direction.
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Original Public Understanding Originalism
Originalism is a legal theory that interprets the US Constitution based on the original understanding of its meaning at the time of its adoption. It is often contrasted with living constitutionalism, which asserts that the Constitution should evolve and be interpreted in the context of the current times. Original Public Understanding Originalism (OPUO) is a variant of originalism that focuses on how the public which ratified the Constitution would have generally understood its provisions.
The key idea behind originalism is that the Constitution has a fixed meaning that is baked into the text and does not change over time. Originalists argue that judges should interpret the Constitution according to the meaning it had when it was ratified, rather than based on evolving societal standards or the judge's own political preferences. This approach seeks to limit judicial activism and ensure that the Constitution is interpreted objectively, without injecting personal values or interpretations.
OPUO originalists argue that the Constitution should be interpreted based on the original public meaning of its text. This meaning can be discerned from various sources, including dictionaries, grammar books, legal documents, and the historical and legal context in which the Constitution was drafted. By considering these sources, OPUO originalists aim to understand how the public, at the time, would have interpreted the Constitution's provisions.
One of the prominent proponents of OPUO is Justice Amy Coney Barrett, who has been described as a protégé of originalist theorist Antonin Scalia. Barrett interprets the Constitution as text, giving it the meaning that it had when it was ratified by the people. She emphasizes the importance of resisting the temptation to conflate the meaning of the Constitution with a judge's political preferences, thus ensuring that judicial decisions are grounded in the text and history of the Constitution.
In conclusion, Original Public Understanding Originalism is a variant of originalism that focuses on the understanding of the public that ratified the Constitution. It seeks to interpret the Constitution based on the original public meaning of its text, as understood by the ratifying public, and emphasizes the importance of an objective and text-based interpretation of the Constitution. While originalism and OPUO have their supporters, critics often point to the Living Constitution as a more flexible and adaptive approach to constitutional interpretation.
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Frequently asked questions
The opposite of a constitutional originalist is a living constitutionalist.
Originalism is a theory of constitutional interpretation that gives a constitution the meaning that its words were understood to have at the time they were written.
Living constitutionalism is a theory of constitutional interpretation that asserts that a constitution should evolve and be interpreted based on the context of the current times.
Originalists believe that the meaning of a constitution remains static and does not change over time. Living constitutionalists, on the other hand, believe that the meaning of a constitution can change as societal attitudes and standards evolve.
Living constitutionalism is more flexible as it allows for the interpretation of a constitution to change over time, whereas originalism maintains a fixed interpretation based on the original understanding of the text.
