Originalism: Interpreting The Constitution's True Intent

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 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 emerged in the 1970s and 1980s and has greatly influenced American legal culture, practice, and academia.

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Originalism vs. Living Constitutionalism

Originalism and Living Constitutionalism are two contrasting theories of constitutional interpretation. Originalism is a theory that interprets the constitution based on its original meaning and understanding at the time of its adoption. It argues that the constitution has a permanent, static meaning that is derived from the text itself. Originalists believe 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 surrounding its creation. They oppose judicial activism and argue for democratic modifications of laws through the legislature or constitutional amendment. Originalism emerged in the 1970s and gained influence in the 1980s as a reaction to the theory of the "Living Constitution".

Living Constitutionalism, on the other hand, asserts that the constitution should evolve and be interpreted based on the context of current times and changing social attitudes. Living constitutionalists believe that the meaning of the constitutional text is not static but changes over time, even without formal amendments. They argue that the constitution should be interpreted according to evolving societal standards and what it ought to say if it were written today. This theory allows for the constitution to adapt to changing social attitudes and values, such as in the case of racial segregation, which living constitutionalists believe was once constitutional due to public opinion but became unconstitutional as a result of the Supreme Court decision in Brown v. Board of Education (1954).

The debate between originalism and living constitutionalism has divided legal scholars, judges, and the American public. Notable originalists include Justices Antonin Scalia, Amy Coney Barrett, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh, while Supreme Court Justice Elena Kagan is a frequent critic of conservative originalism. Originalism is often associated with conservative political ideologies, while living constitutionalism is seen as more flexible and adaptable to societal changes.

While originalism emphasizes the original intent and meaning of the constitution, living constitutionalism focuses on its adaptability and interpretation in the present context. Originalism seeks to restrain judicial power by adhering to the text of the constitution, while living constitutionalism allows for more judicial discretion and the potential for political influence in interpretation. The choice between these approaches has significant implications for how the constitution is applied and interpreted in modern times, particularly in controversial areas such as racial discrimination, abortion, and individual rights.

Original Public Understanding

Originalism is a legal theory in the United States that bases the interpretation of the Constitution on the original understanding at the time of its adoption. Originalists believe that the constitutional text 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 creation.

The original public understanding of originalism holds that the meaning of a constitutional provision is based on how the public that ratified it would have generally understood it. In other words, originalists argue that the interpretation of the Constitution should not change over time but should remain consistent with the understanding of the public that initially adopted it. This view contrasts with Living Constitutionalism, which asserts that the Constitution should evolve and be interpreted based on the context of current times.

Originalism emerged as a response to judicial activism and the Living Constitution framework. Proponents of originalism argue for democratic modifications of laws through the legislature or constitutional amendment. They believe that judges should interpret the law objectively, based on the text and history of the Constitution, rather than imposing their own values or political preferences. This approach aims to prevent arbitrary judicial decisions and ensure consistency in the interpretation of the law.

The originalist approach to constitutional interpretation has been influential in shaping American legal culture, practice, and academia. Notable originalists include Justices Antonin Scalia, Amy Coney Barrett, Clarence Thomas, Neil Gorsuch, and law professor Robert Bork, who proposed the first modern theory of originalism. These individuals have advocated for a return to the original meaning of the Constitution and have influenced legal rulings and public policy.

Original Intent

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. Originalism is usually contrasted with Living Constitutionalism, which asserts that a constitution should evolve and be interpreted based on the context of the current times. Originalists believe that the original meaning of the Constitution is fixed, and new applications of that meaning will arise with new developments and technologies.

Originalism is a theory of interpretation that seeks to ground judicial decisions in the text and history of the Constitution. Originalists argue that the constitutional text should be given the original public meaning that it would have had at the time it became law. This meaning can be discerned from dictionaries, grammar books, legal documents, legal events, and public debates that gave rise to a constitutional provision. Originalism is not concerned with the "intentions" of those who wrote the text but rather with the objective meaning that would have been understood by the public that ratified it.

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. Bork argued that without a specification in a constitutional text, judges are free to input their own values while interpreting a constitution. To avoid this, Bork proposed that judges should "take from the document rather specific values that text or history show the framers actually to have intended and which are capable of being translated into principled rules." By following the original meaning, an originalist Supreme Court would "need to make no fundamental value choices," and its rulings would be restrained.

Originalism has been a divisive issue in the Supreme Court, with justices such as Neil Gorsuch, Clarence Thomas, and Amy Coney Barrett describing themselves as originalists. Originalists on the court have faced the challenge of navigating theoretical disagreements and restoring what they see as the original meaning of the Constitution. Critics of originalism argue that some aspects of the constitution were intentionally broad and vague to allow for future generations to interpret them in light of changing times.

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Original Text

Originalism is a legal theory in the United States that bases the interpretation of legal texts, including the Constitution, on the original understanding at the time of their adoption. Originalists believe that the Constitution should be interpreted according to the original public meaning it had when it became law. This meaning can be discerned from dictionaries, grammar books, legal documents, legal events, and public debates that occurred at the time. Originalism is often contrasted with Living Constitutionalism, which asserts that the Constitution should evolve and be interpreted based on the context of the current times.

The theory of originalism emerged in the 1970s and gained prominence in the 1980s, influencing American legal culture, practice, and academia. 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. Bork argued that without a specific constitutional text, judges may interpret the Constitution based on their own values. To avoid this, he proposed that judges should interpret the Constitution based on the specific values that the text's framers intended, which can be translated into principled rules.

Originalists argue that the original meaning of the Constitution is fixed, and new applications of that meaning will arise with new developments and technologies. For example, the First Amendment's protection of speech applies not just to street corners or newspapers but also to the Internet. The Fourth Amendment's protection against unreasonable searches and seizures originally required the government to obtain a warrant to search a home, and this principle can be extended to prohibit the government from placing a GPS tracking device on a car without a warrant.

Originalists believe that the Fourteenth Amendment always forbade racial segregation, and it became unconstitutional due to the Supreme Court's decision in Brown v. Board of Education in 1954. Originalists also believe that race discrimination will always be unconstitutional unless the Fourteenth Amendment is repealed. Originalism is grounded in the two-century-long movement toward constitutionalism and is behind the U.S. Constitution itself.

Originalist Critique of the Warren and Burger Courts

Originalism is a legal theory that bases the interpretation of constitutional, judicial, and statutory texts on the original understanding at the time of their adoption. Originalists believe that the original public meaning of the Constitution is the correct interpretation, rather than adapting to changing social attitudes. Originalism is often contrasted with Living Constitutionalism, where the meaning of the Constitution is viewed as evolving over time.

Originalists critique the Warren and Burger Courts for deviating from the original intent of the Constitution. The Warren Court, led by Chief Justice Earl Warren, was considered liberal and made several landmark decisions, including Brown v. Board of Education (1954), which ruled that segregated schools were unconstitutional, and Miranda v. Arizona (1966), which required arrestees to be informed of their rights before interrogation. The Burger Court, led by Chief Justice Warren Burger, a conservative constructionist, addressed similar issues but often with different outcomes. For example, in Roe v. Wade (1973), the Burger Court extended the right to privacy to abortion, while the Warren Court had recognised a constitutional right to privacy in Griswold v. Connecticut (1965).

The originalist critique of the Warren and Burger Courts centres around the belief that these Courts made arbitrary decisions that strayed from the original meaning of the Constitution. Originalists argue that the role of the Court is to interpret the Constitution as it was originally understood, rather than imposing their own values or interpreting it based on current social attitudes. Jurist Robert Bork, considered one of the first originalists, proposed that judges should "take from the document specific values that text or history show the framers actually intended", thus removing the need for judges to make value choices in their rulings.

The Burger Court's rulings on issues such as abortion, capital punishment, and pornography were seen as controversial by originalists, who believed that the Court should have adhered more closely to the original text of the Constitution. The Burger Court's recognition of a right to abortion in Roe v. Wade, for example, was viewed by some as an "exercise of raw judicial power" rather than a grounded interpretation of the Constitution. Similarly, the Warren Court's expansion of rights for the accused, such as in Mapp v. Ohio (1961), which excluded illegally seized evidence, was criticised by originalists as a departure from the original intent of the Constitution.

The originalist critique of the Warren and Burger Courts reflects their desire for judicial restraint and a return to the original meaning and understanding of the Constitution. Originalists argue that the Courts' decisions, while significant, often deviated from the Framers' intentions and the text of the Constitution, leading to what they view as an erosion of the rule of law.

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