20.2 Originalism: Variants and Critiques
3 min read•july 30, 2024
, a key approach to constitutional interpretation, argues the Constitution's meaning should be determined by its original understanding at adoption. This view holds that judges should be constrained by the text and , not evolving social norms or personal values.
Different forms of originalism exist, including intent-based and meaning-based approaches. While originalists share a focus on original meaning, they can reach different conclusions. Supporters argue it constrains judges, while critics say it's often indeterminate and may lead to unacceptable outcomes.
Originalism: Core Principles
Key Tenets of Originalism
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- Originalism holds the meaning of the Constitution should be determined by reference to the original understanding at the time of its adoption
- Originalists believe judges should be constrained by the text and original meaning of the Constitution, rather than interpreting it according to evolving social norms or the judges' own value judgments
- Changes to the Constitution's meaning should occur through the formal amendment process, not judicial reinterpretation
Originalist Arguments
- Originalism provides an objective, neutral basis for interpretation
- Prevents judges from imposing their own policy preferences under the guise of constitutional law
- Critics contend originalism is indeterminate in many cases
- Relies on contestable historical judgments about original meaning
Originalism: Forms and Approaches
Intent-Based Approaches
- holds the Constitution should be interpreted according to the subjective intentions of the framers who drafted it (associated with scholars like )
- focuses on how the Constitution was understood by those who ratified it in state conventions, rather than just the framers themselves
Meaning-Based Approaches
- looks to the objective semantic meaning of the constitutional text as it would have been understood by the general public at the time of ratification (advocated by and others)
- holds the Constitution should be interpreted using the interpretive methods that were used by the framers and ratifiers themselves (proposed by and )
Differences Among Originalist Approaches
- While variants of originalism share a common focus on original meaning, they can lead to different conclusions in particular cases
- Intent-based approaches look to subjective intentions of framers or ratifiers
- Meaning-based approaches focus on objective public meaning or interpretive methods of founding generation
Arguments for and against Originalism
Arguments for Originalism
- Constrains judges and promotes democratic accountability
- Provides a neutral, objective basis for constitutional decision-making
- Most faithful to the written Constitution and the social contract it represents between the people and their government
Arguments against Originalism
- Framers themselves did not believe their specific intentions should always control
- Sometimes used broad language to allow for adaptive interpretation over time
- Relies on false assumption that constitutional provisions always had a single, clear, determinate public meaning at ratification
- Historical record is often ambiguous or incomplete
- Reasonable people could disagree on relevant original meaning
- Rigid originalism may lead to unacceptable outcomes in some cases (persistence of segregation or malapportioned legislatures)
- Constitution's meaning can evolve through common law development by courts, within broad boundaries set by text and original principles
Applying Originalism: Modern Challenges
Difficulties Applying Originalism to Contemporary Issues
- World has changed dramatically since 1787
- Constitution often does not speak directly to many contemporary issues (telecommunications, healthcare, environmental protection)
- Originalist sources may shed limited light on how to apply constitutional provisions to modern problems unforeseen by framers
- Records of Philadelphia Convention, , 18th century dictionaries
Inconsistencies and Disagreements Among Originalists
- Self-proclaimed originalists on Supreme Court have often disagreed about relevant original meaning
- Reached divergent conclusions in major cases
- Even committed originalists sometimes depart from theory where results of following original meaning might be very disruptive (paper money, administrative state)
Prominence of Originalist Arguments
- At Supreme Court, originalist arguments are most prominent in cases involving:
- Constitutional structure
- Individual rights
- Social issues
- Less prominent in cases involving economic regulation
Key Terms to Review (21)
Antonin Scalia: Antonin Scalia was an influential Associate Justice of the Supreme Court of the United States, known for his strong advocacy of originalism and textualism in constitutional interpretation. His approach emphasized understanding the Constitution's meaning as it was intended at the time of its drafting, significantly impacting judicial interpretation and construction. Scalia's ideas on originalism have sparked extensive debate regarding the role of historical context and intent in understanding the Constitution.
District of Columbia v. Heller: District of Columbia v. Heller is a landmark Supreme Court case from 2008 that ruled for the first time that the Second Amendment protects an individual's right to possess a firearm unconnected with service in a militia. This decision significantly shifted the interpretation of the Second Amendment, emphasizing personal gun ownership and self-defense.
Federalism: Federalism is a system of government in which power is divided between a central authority and constituent political units, such as states. This division of powers allows for a balance between national interests and local governance, creating a complex relationship that influences the regulation of activities, legal interpretations, and the interaction between different levels of government.
Federalist Papers: The Federalist Papers are a collection of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay to promote the ratification of the U.S. Constitution. These writings provide critical insights into the framers' intentions and the principles of government, influencing the interpretation of constitutional law.
Framers' intent: Framers' intent refers to the understanding and purpose that the authors of the U.S. Constitution had regarding the text and principles of the document they created. This concept is pivotal in originalist interpretations of the Constitution, which argue that understanding the framers' intentions is crucial for accurate constitutional interpretation and application.
John McGinnis: John McGinnis is a prominent legal scholar and professor known for his contributions to the theory of originalism, particularly in the interpretation of the U.S. Constitution. He advocates for an originalist approach that emphasizes understanding the Constitution's text based on its original meaning at the time it was enacted, and he has been influential in both academic and practical discussions surrounding constitutional interpretation.
Judicial Activism: Judicial activism is a philosophy that advocates for the judiciary to interpret the Constitution and laws in a way that reflects contemporary values and social needs, often leading to rulings that can create new legal precedents. This approach contrasts with judicial restraint, where courts adhere closely to established laws and original meanings. Judicial activism connects deeply with various aspects of judicial authority and interpretation, influencing how cases are selected, how constitutional provisions are understood, and the overall scope of judicial power.
Living Constitution: The Living Constitution is a concept that views the Constitution as a dynamic document that evolves and adapts to contemporary societal needs and values, rather than being fixed or limited to its original meaning. This perspective allows for a more flexible interpretation, enabling the Constitution to address modern issues and reflect changing societal norms.
Michael Rappaport: Michael Rappaport is a legal scholar known for his contributions to the field of constitutional interpretation, particularly regarding originalism. He has developed theories that analyze the historical context and intent behind constitutional provisions, arguing for a version of originalism that emphasizes understanding the Constitution as it was understood at the time of its framing while also considering its application in modern contexts. His work addresses critiques of originalism and aims to refine its practical implications in judicial decision-making.
NLRB v. Jones & Laughlin Steel Corp.: NLRB v. Jones & Laughlin Steel Corp. is a landmark Supreme Court case decided in 1937 that upheld the National Labor Relations Act (NLRA) and the federal government's authority to regulate labor relations as part of interstate commerce. The decision expanded the interpretation of the Commerce Clause, allowing Congress to protect workers' rights to unionize and engage in collective bargaining, thus setting a precedent for federal involvement in labor issues.
Original intent: Original intent refers to the theory in constitutional interpretation that emphasizes understanding the Constitution based on the intentions of its framers at the time of its creation. This approach seeks to apply the original meaning of the text as understood by those who drafted and ratified it, arguing that this method preserves the rule of law and limits judicial discretion.
Original intent originalism: Original intent originalism is a judicial philosophy that interprets the Constitution based on the perceived intentions of its framers at the time of its drafting. This approach emphasizes understanding the historical context and specific meanings that the authors intended to convey, guiding judges to apply these original meanings when making legal decisions. Advocates believe this method preserves the rule of law and prevents subjective interpretations of constitutional provisions.
Original meaning: Original meaning refers to the interpretation of a legal text, particularly the Constitution, based on the understanding of its words and phrases at the time it was enacted. This concept is fundamental to originalism, a theory of constitutional interpretation that argues the meaning of the Constitution should be based on the intentions and beliefs of those who drafted and ratified it, rather than contemporary views or changing societal norms.
Original methods originalism: Original methods originalism is a theory of constitutional interpretation that emphasizes the importance of understanding how the Constitution was originally understood and implemented through the specific methods and practices at the time of its framing. This approach focuses on using historical context, the intentions of the framers, and the interpretive methods prevalent in the late 18th century to ascertain the meaning of constitutional provisions. It connects deeply with discussions around different variants of originalism and critiques surrounding those interpretations.
Original public meaning originalism: Original public meaning originalism is a judicial interpretation method that seeks to understand the Constitution as it would have been understood by the public at the time of its ratification. This approach emphasizes the meaning of the text based on how it was perceived by the people rather than the intentions of its framers, promoting a more objective and accessible form of constitutional interpretation.
Original understanding originalism: Original understanding originalism is a judicial philosophy that interprets the Constitution based on the meaning that its words and phrases had at the time they were written. This approach emphasizes the intentions and beliefs of the Framers, aiming to uphold the Constitution as it was understood by those who created it, which is particularly relevant when considering legal arguments and interpretations today.
Originalism: Originalism is a theory of constitutional interpretation that asserts the Constitution should be understood based on the original meaning or intent of its framers at the time it was ratified. This approach connects to various aspects of law, including the limits of judicial power, the amendment process, and the foundational principles of enumerated powers.
Raoul Berger: Raoul Berger was a prominent legal scholar and constitutional theorist known for his advocacy of originalism and his criticism of judicial activism. His work emphasized the importance of interpreting the Constitution based on its original meaning at the time it was ratified, impacting discussions about state sovereignty, individual rights, and constitutional interpretation.
Separation of Powers: Separation of powers is a constitutional principle that divides government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. This framework creates a system of checks and balances, ensuring that power is distributed and preventing any branch from gaining too much authority.
Strict Constructionism: Strict constructionism is a legal philosophy that interprets the Constitution in a literal and narrow manner, emphasizing the original text's meaning as it was understood at the time it was ratified. This approach limits judicial interpretation to the specific words and phrases used in the Constitution, discouraging judges from considering broader societal implications or contemporary values when making decisions.
Textual interpretation: Textual interpretation refers to the method of analyzing legal texts, such as statutes and constitutional provisions, by focusing primarily on the words used and their ordinary meaning at the time of enactment. This approach emphasizes understanding the text in its historical and grammatical context, often asserting that the text itself should guide judicial decision-making, rather than considering external factors or intentions of the drafters.