Originalism

From open-encyclopedia.com - the free encyclopedia.

Originalism in constitutional interpretation is the view that the meaning of a written constitution is (or should be) consistent with the meaning as it was originally understood by those who drafted and/or ratified the constitution. Originalism is especially prominent in connection with controversies over the interpretation of the United States Constitution.

The key to originalism is that decisions are made based on facts about the document when written or ratified, with minimal adjustments for the time or context in which it is interpreted. Under this method, even when a judge sees an issue that he's persuaded ought to be ameliorated somehow, if the law as written and interpreted in the light of its original intent does not support the end result sought, a ruling supporting that result is not granted.

See also: strict constructionism

Forms of originalism

Originalism is actually a family of related views.

One popular form of originalism (used for ordinary law as well as Constitutional law), called "original intent", entails applying a laws based on the intent of its authors. When applied to the US Constitution, this would be the group of "Founding Fathers" that drafted it. Applying this form involves studying the writings of its authors for clues as to their intent.

Another form of originalism, called "original meaning", emphasizes how the text would have been understood by ordinary citizens in the historical period during which the constitution was proposed, ratified, and first implemented. Randy Barnett argues for this view in his book Restoring the Lost Constitution. Applying this form involves studying dictionaries and other writings of the time to see what certain terms meant.

Arguments in favor

• Originalism prevents giving judges unfettered discretion to inject their own values into a written constitution.
• Since the Constitution is approved by the people, originalism is required to maintain their sovereignty.
• Originalism helps ensure predictability and certainty of constitutional meaning.
• If people wish to change the meaning of the Constitution, they should do so through official processes (e.g. amendments).

Arguments opposed

• The Founding Fathers were not originalists. How can you try to follow their views when they were opposed to that?
• The large group of people who drafted and ratified the constitution don't have a single original intent.
• Constitutions are meant to endure over time and their interpretation must be flexible and responsive to changing circumstances.
• Originalism allows the "dead hand" of prior generations to control the outcome of important contemporary issues.
• The original intention or meaning of particular constitutional provisions can be understood at different levels of generality and the choice among such levels is arbitrary. For example, the US Constitution states "Representatives ... shall be apportioned among the several States". Clearly at the time the document was written and ratified, this referred to the thirteen states then in existence. But many new states have since been added; surely the understanding must be updated to include these. But if we can change the meaning of "the several States" with the times, why not other phrases like "cruel and unusual punishment"?

Possible consequences

One possible consequence of such a system of legal interpretation is that a variety of laws might have to be kept more up to date than otherwise might been done. This would be so because under an original intent decision system, judges would rarely if ever, sufficiently change a law so as to "stretch it" to cover circumstances not in vogue when the law was written. As a result, lawmakers would need to step forward and make those laws they saw fit to remedy any legislatively caused injustices or gaps in the law, rather than leaving this to the courts.

External links

• "Original Intent and Purpose of the Second Amendment" GunCite.com
• "Original Intent and The Free Exercise of Religion" Joseph A. Zavaletta, Jr., Esq
• "Constitutional Issues of Taxation" Original Intent.org