Originalism

Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy.

In the context of United States constitutional interpretation, originalism is a principle of interpretation that views the Constitution's meaning as fixed as of the time of enactment. The originalist enterprise, then, is a quest to determine the meaning of the utterances, the meaning of which can only be changed by the procedures set out in Article Five of the Constitution.[1] The term originated in the 1980s.[2] However, the concept is an application of formalist theory and closely related to textualism when it is applied to meaning.

Today, originalism is popular among some political conservatives in the U.S., and is most prominently associated with Justice Clarence Thomas, the late Justice Antonin Scalia, and the late Robert Bork. However, some liberals, such as late Justice Hugo Black and legal scholar Akhil Amar, have also subscribed to the theory.[3]

Originalism is an umbrella term for interpretative methods that hold to the "fixation thesis"—the notion that an utterance's semantic content is fixed at the time it is uttered.[4] Originalists seek one of two alternative sources of meaning:

These theories share the view that there is an identifiable original intent or original meaning, contemporaneous with a constitution's or statute's ratification, which should govern its subsequent interpretation. The divisions between these theories relate to what exactly that identifiable original intent or original meaning is: the intentions of the authors or the ratifiers, the original meaning of the text, a combination of the two, or the original meaning of the text but not its expected application.

Originalism and strict constructionism

Bret Boyce described the origins of the term originalist as follows: The term "originalism" has been most commonly used since the middle 1980s and was apparently coined by Paul Brest in The Misconceived Quest for the Original Understanding.[1] It is often asserted that originalism is synonymous with strict constructionism.[5][6][7][8]

Supreme Court Justice Antonin Scalia was a firm believer in originalism

Both theories are associated with textualist and formalist schools of thought, however there are pronounced differences between them. Justice Scalia differentiated the two by pointing out that, unlike an originalist, a strict constructionist would not acknowledge that he uses a cane means he walks with a cane (because, strictly speaking, this is not what he uses a cane means).[9] Scalia averred that he was "not a strict constructionist, and no-one ought to be"; he goes further, calling strict constructionism "a degraded form of textualism that brings the whole philosophy into disrepute".[10]

Originalism is a theory of interpretation, not construction.[11] However, this distinction between "interpretation" and "construction" is controversial and is rejected by many nonoriginalists as artificial. As Scalia said, "the Constitution, or any text, should be interpreted [n]either strictly [n]or sloppily; it should be interpreted reasonably"; once originalism has told a Judge what the provision of the Constitution means, they are bound by that meaning—however the business of Judging is not simply to know what the text means (interpretation), but to take the law's necessarily general provisions and apply them to the specifics of a given case or controversy (construction). In many cases, the meaning might be so specific that no discretion is permissible, but in many cases, it is still before the Judge to say what a reasonable interpretation might be. A judge could, therefore, be both an originalist and a strict constructionist—but he is not one by virtue of being the other.

To put the difference more explicitly, both schools take the plain meaning of the text as their starting point, but have different approaches that can best be illustrated with a fictitious example.

Suppose that the Constitution contained (which it obviously does not) a provision that a person may not be "subjected to the punishments of hanging by the neck, beheading, stoning, pressing, or execution by firing squad". A strict constructionist might interpret that clause to mean that the specific punishments mentioned above were unconstitutional, but that other forms of capital punishment were permissible. For a strict constructionist, the specific, strict reading of the text is the beginning and end of the inquiry.

For an originalist, however, the text is the beginning of the inquiry, and two originalists might reach very different results, not only from the strict constructionist, but from each other. "Originalists can reach different results in the same case" (see What originalism is not—originalism is not always an answer in and of itself, below); one originalist might look at the context in which the clause was written, and might discover that the punishments listed in the clause were the only forms of capital punishment in use at that time, and the only forms of capital punishment that had ever been used at the time of ratification. An originalist might therefore conclude that capital punishment in general, including those methods for it invented since ratification, such as the electric chair, are not constitutional. Another originalist may look at the text and see that the writers created a list. He would assume that the authors intended this to be an exhaustive list of objectionable executions. Otherwise, they would have banned capital punishment as a whole, instead of listing specific means of punishment. He would rule that other forms of execution are constitutional.

Note that originalists would agree that, if the original meaning of the text could be ascertained, that meaning governs. Where they disagree, as in this example, is about exactly how to find that meaning. For example, any originalist or even a strict constructionist might apply the canon of construction expressio unius est exclusio alterius, which presumes that when an author includes one example he intends to exclude others. If that canon is appropriate in the example here, all originalist interpreters would likely reach the same result. Contrast this with a "living constitutional" interpretation, which might find that, although the text itself only prohibits certain methods, those methods are examples of particularly unpleasant methods of execution; therefore, the text invites modern readers to extend its principle to those forms of punishment we now find particularly unpleasant.

Forms of originalism

Originalism is actually a family of related views. Originalism as a movement got off to a slow start in 1971, with Robert Bork's Neutral Principles and Some First Amendment Problems.[12] It was not until the 1980s, when conservative jurists began to take seats on the Supreme Court, that the debate really began in earnest. "Old originalism" focused primarily on "intent," mostly by default. But that line was largely abandoned in the early 1990s; as "New originalism" emerged, most adherents subscribed to "original meaning" originalism, though there are some intentionalists within new originalism.

Original intent

Main article: Original intent

The original form of originalism is sometimes called intentionalism, or original intent originalism, and looked for the subjective intent of a law's enactors. One problem with this approach is identifying the relevant "lawmaker" whose intent is sought. For instance, the authors of the U.S. Constitution could be the particular Founding Fathers that drafted it, such as those on the Committee of Detail. Or, since the Constitution purports to originate from the People, one could look to the various state ratifying conventions. The intentionalist methodology involves studying the writings of its authors, or the records of the Philadelphia Convention, or debates in the state legislatures, for clues as to their intent.

There are two kinds of intent analysis, reflecting two meanings of the word intent. The first, a rule of common law construction during the Founding Era, is functional intent. The second is motivational intent. To understand the difference, one can use the metaphor of an architect who designs a Gothic church with flying buttresses. The functional intent of flying buttresses is to prevent the weight of the roof from spreading the walls and causing a collapse of the building, which can be inferred from examining the design as a whole. The motivational intent might be to create work for his brother-in-law who is a flying buttress subcontractor. Using original intent analysis of the first kind, we can discern that the language of Article III of the U.S. Constitution was to delegate to Congress the power to allocate original and appellate jurisdictions, and not to remove some jurisdiction, involving a constitutional question, from all courts. That would suggest that the decision was wrong in Ex Parte McCardle.[13]

Problems with intentionalism

However, a number of problems are inherent in intentionalism, and a fortiori when that theory is applied to the Constitution. For example, most of the Founders did not leave detailed discussions of what their intent was in 1787, and while a few did, there is no reason to think that they should be dispositive of what the rest thought. Moreover, the discussions of the drafters may have been recorded, however they were not available to the ratifiers in each state. The theory of original intent was challenged in a string of law review articles in the 1980s.[14] Specifically, original intent was seen as lacking good answers to three important questions: whether a diverse group such as the framers even had a single intent; if they did, whether it could be determined from two centuries' distance; and whether the framers themselves would have supported original intent.[15]

In response to this, a different strain of originalism, articulated by (among others) Antonin Scalia,[16] Robert Bork,[17] and Randy Barnett,[18] came to the fore. This is dubbed original meaning.

Original meaning

Main article: Original meaning

Justice Oliver Wendell Holmes argued that interpreting what was meant by someone who wrote a law was not trying to "get into his mind" because the issue was "not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used."[19] This is the essential precept of modern Originalism.

The most robust and widely cited form of originalism, original meaning emphasizes how the text would have been understood by a reasonable person in the historical period during which the constitution was proposed, ratified, and first implemented. For example, economist Thomas Sowell[20] notes that phrases like "due process" and "freedom of the press" had a long established meaning in English law, even before they were put into the Constitution of the United States." Applying this form involves studying dictionaries and other writings of the time (for example, Blackstone's Commentaries on the Laws of England; see "Matters rendered moot by originalism", infra) to establish out what particular terms meant. See Methodology, infra).

Justice Scalia, one of the most forceful modern advocates for originalism, defined himself as belonging to the latter category:

The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.[21]

Though there may be no evidence that the Founding Fathers intended the Constitution to be like a statute, this fact does not matter under Scalia's approach. Adherence to original meaning is explicitly divorced from the intent of the Founders; rather, the reasons for adhering to original meaning derive from other justifications, such as the argument that the understanding of the ratifiers (the people of the several States at the time of the adoption of the Constitution) should be controlling, as well as consequentialist arguments about original meaning's positive effect on rule of law.

Perhaps the clearest example to illustrate the importance of the difference between original intent and original understanding is to use the Twenty-seventh Amendment. The Twenty-seventh Amendment was proposed as part of the Bill of Rights in 1791, but failed to be ratified by the required number of states for two centuries, eventually being ratified in 1992. An original intent inquiry might ask what the framers understood the amendment to mean when it was written, though some would argue that it was the intent of the latter-day ratifiers that is important. An original-meaning inquiry would ask what the plain, public meaning of the text was in 1992 when it was eventually ratified.

Semantic originalism

Semantic-originalism is Ronald Dworkin's term for the theory that the original meaning of many statutes implies that those statutes prohibit certain acts widely considered not to be prohibited by the statutes at the time of their passages. This type of originalism contrasts with expectations originalism, which adheres to how the statutes functioned at the times of their passages, without any expectation that they would function in any other particular ways.[22]

Justice Antonin Scalia and other originalists often claim that the death penalty is not "cruel and unusual punishment" because at the time of the Eighth Amendment's passage, it was a punishment believed to be neither cruel nor unusual. Dworkin and the semantic-originalists assert, however, that if advances in moral philosophy (presuming that such advances are possible) reveal that the death penalty is in fact "cruel and unusual", then the original meaning of the Eighth Amendment implies that the death penalty is unconstitutional. All the same, Justice Scalia purported to follow semantic originalism, although he conceded that Dworkin does not believe Scalia was true to that calling.[23]

Framework originalism

Framework Originalism is an approach developed by Jack Balkin, a professor of law at Yale Law School. Framework Originalism, or Living Originalism, is a blend of primarily two constitutional interpretive methods: originalism and Living Constitution. Balkin holds that there is no inherent contradiction between these two, aforementioned, interpretive approaches—when properly understood. Framework Originalists view the Constitution as an "initial framework for governance that sets politics in motion." This "framework" must be built-out or filled-out over time, successive generations, by the various legislative and judicial branches. This process is achieved, primarily, through building political institutions, passing legislation, and creating precedents (both judicial and non-judicial).[24] In effect, the process of building out the Constitution on top of the framework of the original meaning is living constitutionalism, the change of and progress of law over time to address particular (current) issues. The authority of the judiciary and of the political branches to engage in constitutional construction comes from their "joint responsiveness to public opinion" over long stretches of time, while operating within the basic framework of the original meaning. Balkin claims that through mechanisms of social influence, both judges and the political branches inevitably come to reflect and respond to changing social mores, norms, customs and (public) opinions.

According to Framework originalism, interpreters should adhere to the original meaning of the Constitution, but are not necessarily required to follow the original expected application (although they may use it to create doctrines and decide cases). For example, states should extend the equal protection of the laws to all peoples, in cases where it would not originally or normally be applied to. Contemporary interpreters are not bound by how people in 1868 would have applied these words and meanings to issues such as racial segregation or (sexual) discrimination, largely due to the fact the fourteenth amendment is concerned with such issues (as well as the fact that the fourteenth amendment was not proposed or ratified by the founders). When the Constitution uses or applies principles or standards, like "equal protection" or "unreasonable searches and seizures," further construction is usually required, by either the judiciary, the executive or legislative branch. Therefore, Balkin claims, (pure, unadulterated) originalism is not sufficient to decide a wide range of cases or controversies. Judges, he posits, will have to "engage in considerable constitutional construction as well as the elaboration and application of previous constructions." For example, originalism (in and of itself), is not sufficient enough to constrain judicial behavior. Constraint itself does not just come from doctrine or canons, it also comes from institutional, political, and cultural sources. These constraints include: multi-member or panel courts (where the balance of power lies with moderate judges); the screening of judges through the federal judicial appointment process; social and cultural influences on the judiciary (which keep judges attuned and attentive to popular opinions and the political will of the people); and prevailing professional legal culture and professional conceptions of the role of the judiciary (which produce social norms or mores). These constraints ensure that judges try to behave; to act as impartial arbiters of the law and to try to behave in a principled manner, as it applies to decision making.

Methodology

In "The Original Meaning of the Recess Appointments Clause", Prof. Michael B. Rappaport described the methodology associated with the "Original Meaning" form of originalism as follows:

Discussion

Philosophical underpinnings

Originalism, in all its various forms, is predicated on a specific view of what the Constitution is, a view articulated by Chief Justice John Marshall in Marbury v. Madison:

[T]he constitution organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.

The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained?

Originalism assumes that Marbury is correct: the Constitution is the operating charter granted to government by the people, as per the preamble to the United States Constitution, and its written nature introduces a certain discipline into its interpretation. Originalism further assumes that the need for such a written charter was derived from the perception, on the part of the Framers, of the abuses of power under the (unwritten) British Constitution, under which the Constitution was essentially whatever Parliament decided it should be. In writing out a Constitution which explicitly granted the government certain authorities, and withheld from it others, and in which power was balanced between multiple agencies (the Presidency, two chambers of Congress and the Supreme Court at the national level, and State Governments with similar branches), the intention of the Framers was to restrain government, originalists argue, and the value of such a document is nullified if that document's meaning is not fixed. As one author stated, "If the constitution can mean anything, then the constitution is reduced to meaninglessness."[25]

Function of constitutional jurisprudence

Dissenting in Romer v. Evans, Justice Antonin Scalia wrote:

Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected.

This statement summarizes the role for the court envisioned by Originalists, that is, that the Court parses what the general law and constitution says of a particular case or controversy, and when questions arise as to the meaning of a given constitutional provision, that provision should be given the meaning it was understood to mean when ratified. Reviewing Steven D Smith's book Law's Quandary, Justice Scalia applied this formulation to some controversial topics routinely brought before the Court:

It troubles Smith, but does not at all trouble me—in fact, it pleases me—that giving the words of the Constitution their normal meaning would "expel from the domain of legal issues … most of the constitutional disputes that capture our attention", such as "Can a macho military educational institution dedicated to what is euphemistically called the 'adversative' method admit only men? Is there a right to abortion? Or to the assistance of a physician in ending one's life?" If we should read English as English, Smith bemoans, "these questions would seemingly all have received the same answer: 'No law on that one.'"

That is precisely the answer they should have received: The federal Constitution says nothing on these subjects, which are therefore left to be governed by state law.[26]

In Marbury, Chief Justice Marshall established that the Supreme Court could invalidate laws which violated the Constitution (that is, judicial review), which helped establish the Supreme Court as having its own distinct sphere of influence within the Federal Government. However, this power was itself balanced with the requirement that the Court could only invalidate legislation if it was unconstitutional. Originalists argue that the modern court no longer follows this requirement. They argue that—since U.S. v. Darby, in which Justice Stone (writing for a unanimous Court) ruled that the Tenth Amendment had no legal meaning—the Court has increasingly taken to making rulings[27] in which the Court has determined not what the Constitution says, but rather, the Court has sought to determine what is "morally correct" at this point in the nation's history, in terms of "the evolving standards of decency" (and considering "the context of international jurisprudence"), and then justified that determination through a "creative reading" of the text. This latter approach is frequently termed "the Living constitution"; Justice Scalia inveighed that "the worst thing about the living constitution is that it will destroy the constitution".[28]

Matters rendered moot by originalism

Originalists are sharply critical of the use of the evolving standards of decency (a term which first appeared in Trop v. Dulles) and of reference to the opinions of courts in foreign countries (excepting treaties to which the United States is a signatory, per Article II, Section 2, Clause 2 of the United States Constitution) in Constitutional interpretation.

In an originalist interpretation, if the meaning of the Constitution is static, then any ex post facto information (such as the opinions of the American people, American judges, or the judiciaries of any foreign country) is inherently valueless for interpretation of the meaning of the Constitution, and should not form any part of constitutional jurisprudence. The Constitution is thus fixed and has procedures defining how it can be changed.

The exception to the use of foreign law is the English common law, which originalists regard as setting the philosophical stage for the US Constitution and the American common and civil law. Hence, an originalist might cite Blackstone's Commentaries to establish the meaning of the term due process as it would have been understood at the time of ratification.

What originalism is not

Originalism is not the theory of original intent

As discussed previously, original intent is only one theory in the Originalist family of theories. Many of the criticisms that are directed at original intent do not apply to other Originalist theories.

Originalism is not conservatism

It is not accurate to say that originalism rejects change or that originalists necessarily oppose the use of "the evolving standards of decency" in determining what the Constitution ought to say; rather, originalism rejects the concept that the courts should consider what the Constitution ought to say but instead rule solely on what it said as understood at the time of its enactment. Originalists argue that the business of determining what the Constitution and the law ought to say is within the purview of the Congress, that changes to the law should come through the legislature, and changes to the constitution should be made per the amendment process outlined in Article V. Sometimes this approach yields results that please conservatives (see, for example, Justice Scalia's dissents in Roper v. Simmons or Romer), and sometimes it yields results that do not (see, for example, Justice Scalia's dissents in BMW v. Gore or Hamdi v. Rumsfeld).

Originalism is not always an answer in and of itself

Originalism is a means of constitutional interpretation, not constitutional construction; whenever "to describe [a] case is not to decide it",[29] it can only serve as a guide for what the Constitution says, not how that text applies to a given case or controversy. Thus, Originalists can reach different results in the same case; see, for example, United States v. Fordice; McIntyre; Hamdi, Gonzales v. Raich; National Cable & Telecommunications Assn. v. Brand X Internet Services. According to an article in The New Republic, although Scalia admits that Thomas "is really the only justice whose basic approach to the law is the same as mine", the author contends that "during the court's 2003–2004 term, Scalia and Thomas voted together in only 73 percent of cases, and six other pairs of justices agreed with each other more often than Thomas and Scalia did."

Pros and cons

Arguments for and against Originalism should be read in conjunction with alternative views and rebuttals, presented in footnotes.

Arguments favoring originalism

Arguments opposing originalism

Arguments against some of the proponents of Originalism

See also

Footnotes

  1. 1 2 B. Boyce, "Originalism and the Fourteenth Amendment", 33 Wake Forest L. Rev. 909
  2. ↑ Brest, Paul. (1980). The Misconceived Quest for the Original Understanding. Boston University Law Review, 60, 204–238.
  3. ↑ Amar, Akhil. "Rethinking Originalism". Slate.
  4. ↑ L. Solum, "Semantic Originalism", Illinois Public Law Research Paper No. 07-24
  5. ↑ The University of Chicago, The Law School "I am not a strict constructionist, and no one ought to be."
  6. ↑ "Archived copy". Archived from the original on December 19, 2005. Retrieved December 16, 2005.
  7. ↑ "Archived copy". Archived from the original on December 16, 2005. Retrieved December 16, 2005.
  8. ↑ wil gerken; nathan hendler; doug floyd; john banks. "News & Opinion: Who Would Bush Appoint to the Supreme Court? (The Boston Phoenix . 04-10-00)". Retrieved March 19, 2016.
  9. ↑ See Smith v. United States, 508 U.S. 223 (1993)
  10. ↑ A. Scalia, A Matter of Interpretation, ISBN 978-0-691-00400-6, Amy Guttman ed. 1997, at p.23.
  11. ↑ Barnett, The Original Meaning of the Commerce Clause
  12. ↑ Robert H. Bork. "Neutral Principles and Some First Amendment Problems". Digitalcommons.law.yale.edu. Retrieved 2016-04-01.
  13. ↑ Ex Parte McCardle, 74 U.S. 506 (Wall.) (1868)
  14. ↑ See, for example, Powell, "The Original Understanding of Original Intent", 98 Harv. L. Rev. 885 (1985)
  15. ↑ See also, W. Serwetman, Originalism At Work in Lopez: An Examination of the Recent Trend in Commerce Clause Jurisprudence
  16. ↑ See A MATTER OF INTERPRETATION, supra; see also, A. Scalia, Originalism: the Lesser Evil, 57 U. Cin. L. Rev. 849.
  17. ↑ See R. Bork, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCATION OF THE LAW.
  18. ↑ See R. Barnett, An Originalism for non-Originalists, 45 Loy. L. Rev. 611; R. Barnett, Restoring the Lost Constitution.
  19. ↑ O.W. Holmes, COLLECTED LEGAL PAPERS, ISBN 978-0-8446-1241-6, p.204
  20. ↑ "Thomas Sowell Articles - Political Columnist & Commentator". townhall.com. Retrieved March 19, 2016.
  21. ↑ See A. Scalia, A Theory of Constitution Interpretation, speech at Catholic University of America, 10/18/96.
  22. ↑ Barnett, Randy. Restoring the Lost Constitution, p. 95 (Princeton U. Press 2013).
  23. ↑ Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law: Federal Courts and the Law, p. 144 (Princeton University Press 1998).
  24. ↑ Balkin, Jack (February 16, 2009). "Framework Originalism and The Living Constitution, Public Law & Legal Theory Research Paper Series" Yale Law School. Retrieved July 27, 2013.
  25. ↑ "The New Guard". Retrieved March 19, 2016.
  26. ↑ A. Scalia, Law & Language; First Things, November 2005
  27. ↑ See, for example, Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973); Morrison v. Olson, 487 U.S. 654 (1988); Lawrence v. Texas, 539 U.S. 558 (2003); Roper v. Simmons, Docket No. 03—633 (2005); Kelo v. City of New London, Docket No. 04-108 (2005).
  28. ↑ See Scalia, Constitutional Interpretation, speech at Woodrow Wilson International Center 3/14/05
  29. ↑ Morrison v. Olson, 487 U.S. 654 (1988) at 703 (Scalia, dissenting)
  30. ↑ See Atkins v. Virginia, 536 U.S. 304 (2002) (Scalia, dissenting)
  31. ↑ Scalia, Woodrow Wilson speech, supra
  32. 1 2 Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws
  33. ↑ "Scalia talks up 'originalism' in UVM speech : Times Argus Online". Retrieved March 19, 2016.
  34. ↑ Cohen, Adam (September 22, 2010). "Justice Scalia Mouths Off on Sex Discrimination". Time. Retrieved December 12, 2012.
  35. ↑ Fischer, David Hackett (1989). Albion's Seed: Four British Folkways in America. New York: Oxford University Press. ISBN 978-0-19-506905-1.

References

External links

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