Originalism

From dKosopedia

Originalism is a theory of constitutional interpretation that is popular in the United States. This article refers only to its use in American jurisprudence and its application to the United States Constitution.

The term originalism refers to two distinctly different ideas: One version, known as original intent, is the view that interpretation of a written constitution is (or should be) consistent with what it was originally intended to mean by those who drafted and ratified it. The other version, known as original meaning, or textualism, is the view that interpretation of a written constitution should be based on what it would commonly have been understood to mean by reasonable persons living at the time of its ratification.

Originalism is only concerned with determining the meaning of a text. Constitutional interpretation is not constitutional construction; rather, construction is the determination of how the provisions of a text apply to a specific question.

The key to originalism is that interpretive decisions made by Judges should be based on facts about the document when it was originally 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 he is persuaded ought to be ameliorated somehow, if the law as written and interpreted in the light of its original intent or original meaning does not support the end result sought, a ruling supporting that result is not granted. In this manner, originalists contend, alteration of the Constitution remains the perogative of the amendment process outlined in Article V.

Cf. Strict constructionism and The Living Constitution.

Differentiated from Strict Constructionism

Both Originalists and Strict Constructionists 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 punishment of hanging by the neck". A Strict Constructionist would likely interpret that clause to mean that hanging was unconstitutional, but that other forms of capital punishment were not. However, an originalist would look at the context in which the clause was written, and might discover that hanging by the neck was the only form of capital punishment in use at that time, and the only form of capital punishment that had ever been used at the time of ratification. Faced with the same problem, an originalist might therefore conclude that capital punishment in general - including those methods for it invented since ratification - was unconstitutional.

Forms of originalism

Originalism is actually a family of related views.

Original intent

The "original form of originalism", used for ordinary law as well as constitutional law, was called "original intent", and entailed applying laws based on the intent of its authors. For instance, the authors of the US Constitution would be the group of "Founding Fathers" that drafted it. Applying this form involves studying the writings of its authors, or the records of the Philadelphia Convention, for clues as to their intent. This is the school of thought in which one of the current Court's two originalists, Justice Thomas, is usually regarded as inhabiting; it was also the form expoused by Judge Robert Bork.

Problems with Original Intent

However, original intent has rather fallen out of favor since a string of Law Review articles attacking Bork and the original intent process (see, e.g., H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985)) prior to his (Bork's) abortive Senate confirmation hearing to the Supreme Court. 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. (See also, William Serwetman, Originalism At Work in Lopez: An Examination of the Recent Trend in Commerce Clause Jurisprudence [1]).

In response to this, a subtly different strain of originalism developed, most clearly articulated by Antonin Scalia (in Originalism: the Lesser Evil, 57 U. Cin. L. Rev. 849, and A Matter of Interpretation, ISBN 0691004005) and Randy Barnett (in An Originalism for non-Originalists, 45 Loy. L. Rev. 611). This was dubbed original meaning.

Original meaning

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. 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 find out what particular terms meant. For example, phrases like "due process" and "freedom of the press" had a long established meaning in British law, even before they were put into the Constitution of the United States."[2]. See also, Blackstone, Commentaries on the Laws of England.

Justice Scalia, one of the most forceful modern advocates for originalism, defines 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." (Source)

Pros and Cons

Arguments favoring originalism

• Since the Constitution is approved by the authority of the people, originalism is required to maintain their sovereignty.
• If a constitution no longer meets the exigencies of society's "evolving standard of decency", and the people people wish to amend or replace their constitution, there is nothing stopping them from doing so in the manner which was envisioned by the Framers: the means to do so is provided for within the very constitutions under question, i.e. through the amendment process. The "Living Constitution" approach would thus only be valuable in the absence of an amendment process.
• Originalism prevents judges from gaining unfettered discretion to inject their personal values into a written constitution.
• Originalism helps ensure predictability and protects against arbitrary changes in the interpreted meaning of a constitution; to reject originalism inplicitly repudiates stare decisis.
• If the Constitution as interpreted can truly be changed at the decree of a judge, then "The Constitution ... is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please." (Thomas Jefferson)
• If the meaning of the Constitution is to be anything other than static, why write it down at all?
• If the Constitution should be interpreted in light of "the evolving standards of decency", why should the Supreme Court - nine lawyers - have the final say over its interpretation? Is not the Congress, which faces election every two to six years, thereby more likely to be in touch with the current standards of decency, and therefore better placed to make such judgements? If originalism is wrong, then Marbury v. Madison - which holding underpins judicial review of constitutionality, i.e. the meaning of the constitution - was wrongly decided, and two centuries of jurisprudence relying on it is thereby on shaky ground.

Arguments opposing originalism

• Originalism leads to unsettling results. After decades of "The Living Constitution", people at large have grown used to using the shorthand "unconstitutional" for "socially unacceptable"; hence, laws banning sodomy were unacceptable, they must therefore be unconstitutional; executing minors is unacceptable, so it must therefore be unconstitutional. If an originalist approach is applied, one discovers that many things that are unacceptable are constitutional under that approach.
• The large group of people who agreed to draft and ratify the constitution didn't necessarily agree entirely on its intent. For example, Alexander Hamilton proposed an elected governor with lifetime tenure - effectively, an "elected monarch" - as the chief executive of the United States (Source); therefore, should Hamilton's opinions in The Federalist Papers be quoted as authoritative of the intent of the Framers(n1), given that many of that group clearly disagreed on the shape of government? n2
• It could be argued - as, for example, Justice Breyer has - that constitutions are meant to endure over time, and in order to do so, their interpretation must therefore be more flexible and responsive to changing circumstances than the amendment process is.
• Originalism allows the "dead hand" of prior generations to control the outcome of important contemporary issues. n3
• 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, the "several States" referred to were thirteen in number. If any new states in addition to these do not by definition comprise the "several States," why can't phrases like "cruel and unusual punishment" be changed deliberately? n4
• The "rules" of originalism are sometimes "bent" to meet the policy views of a Justice who otherwise subscribes to originalism. Thus, while both Scalia and Thomas have objected to the use of foreign law by the court (see, respectively, Thompson v. Oklahoma, Template:Ussc-cite, and Knight v. Florida, Template:Ussc), both have allowed it to seep into their opinions at one time or another (see, respectively, McIntyre v. Ohio Elections Committee, Template:Ussc-cite and Holder v. Hall, Template:Ussc-cite) n5
• Originalism faces the hermeneutic difficulty of understanding the intentions of the Founding Fathers, who lived 200 years ago and, of course, were not all of the same mind about everything. Recall the debate about even making a constitution. Even Justice Scalia accepts this problem: "It's not always easy to figure out what the provision meant when it was adopted...I don't say [originalism] is perfect. I just say it's better than anything else." (Source)

Footnotes to Pros & Cons

n1 In relation to Hamilton's authorship of the Federalist, note also that Hamilton was not especially taken with the Constitution ("Hamilton made no secret of his dislike for the plan. It simply wasn't 'high-toned' enough for him. But he had also said, grudgingly, tht he would support it") (Fred Barbash, The Founding, at 190), and was absent for much of the convention. Furthermore, of the three Federalist essayists, Hamilton left the Philadelphia Convention in July and did not return until mid-September (Barbash, supra, at 109 and 190), Madison's designs and intents were routinely frustrated at that Convention, and Jay was not even a member of the convention. This arguably renders the Federalist useless (or,at best, of diminished value) to practitioners of original intent, but it retains its full utility to the practitioner of original meaning.

n2 This argument was the "killer argument" which felled original intent, leading to the development of original understanding, a theory immune to this criticism. See Powell, supra.

n3 Rebuttal: the "dead hand" argument has several major flaws. Having a written constitution in the first place is allowing the "dead hand of previous generations" to control future outcomes. The principle of stare decisis is granting the "dead hand of previous generations" control over future decisions. Both are considered necessary compromises. Originalism does not prevent change, as the "dead hand" argument contends - it merely rejects the Judicial system as the venue for that change. The people retain the ability to repudiate the "dead hand of previous generations" any time they so desire - through the amendment process.

n4 However, note that this provides a perfect example of Original Meaning; at the time of ratification, "the several States" meant "all the States". Time has blurred the meaning of the words, but we can took to contemporaneous sources to see how that phrase was used, and we can look, for example, to the act of the Continental Congress endorsing the Philadelphia Convention, which called for the Convention to transmit its results to "the Congress and the several legislatures". Recall that under the Articles of Confederation, unanimous consent of the State legislatures was required, and it becomes clear that "several" meant "all".

n5 Rebuttal: even assuming, for the sake of argument, that these are fair comparisons, the willingness of some practitioners of a theory to subordinate their usual practise to their political preferences, when faced with an unpalatable result were that practise applied, is no commentary on - still less a repudiation of - that practise or its theoretical underpinnings. For example, compare Justice Kennedy's abandonment of the standard he unhesitatingly signed onto in Morrison and Lopez, when confronted in Raich with a situation where the application of that standard would lead to a result that his "zero tolerence" view on drugs could not contain. [3]

Discussion

Philosophical underpinnings

Dissenting in Dred Scott v. Sanford, 19 How. 393 (1857), Justice Benjamin R. Curtis wrote:

"Whether such decrees are wise or unwise, whether their subjects are citizens or not, if they are usurpation of power, our rights are both infringed and endangered. They are infringed because the power to decide and act is taken away from the people without their consent. They are endangered because in a constitutional government, every usurpation of power dangerously disorders the whole framework of the state."

Originalism, in all its various forms, is predicated on a specific view of what the Constitution is. Originalism assumes that the Constitution is the "operating charter" granted to government by the people, as per the preamble to the U.S. Constitution; it 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 witheld from it others, and in which power was balanced between four separate agencies (the Presidency, two chambers of Congress and the Supreme Court), 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. "If the constitution can mean anything, then the constitution means nothing".

Function of Constitutional jurisprudence

Dissenting in Romer v. Evans, 517 U.S. 620 (1996), 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 neatly encapsulates the role for the court envisioned by Originalists, i.e. 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. Non-originalists, of various hues, disagree with this proposed role.

In Marbury v. Madison, Cranch 137 (1803), Chief Justice John Marshall firmly established that the Supreme Court could invalidate laws which violated the Constitution (i.e. 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, 312 U.S. 100 (1941), in which Justice Stone eviscerated the 10th Amendment - the Court has increasingly taken to making rulings (see, e.g., 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) 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 taking into account "the context of international jurisprudence"), and then attempted to justify that determination through a "creative reading" of the text.

This latter approach is called "the living constitution"; Justice Scalia has inveighed that "the worst thing about the living constitution is that it will destroy the constitution" (Source). Scalia is not merely being melodramatic; he is an originalist, and seen from an originalist perspective, as noted above, the intention of the Framers in creating a written constitution was specifically to restrain government, to set limits on its scope and actions, to create and enforce a set of groundrules granted to government by "we the people" through the ratification process. The Constitution achieves this goal only if the meaning of its terms can be changed solely by "we the people" (indeed, the Framers thoughtfully included a process through which "we the people" could amend the Constitution, as demanded by "the evolving standard of decency" - but it is spelled out in Article V, not Article III), and not by the government, i.e. its object. This is the basis for Scalia's statement: that the constitution was intended to shackle government, but if the Constitution can be given flexible meaning by the agency of government charged with its interpretation, far from restraining government, the living constitution makes the prisoner its own jailer.

Matters rendered moot by originalism

Originalism is sharply critical of the use of "the evolving standards of decency" - a term which first appeared in Chief Justice Warren's per curiam in Trop v. Dulles, 356 U.S. 86 (1958) - and 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 both cases, the cause should be obvious from the discussion of the philosophical underpinnings of originalism (see ante). If the meaning of the Constitution is static, then any ex post facto information - such what American people, American judges, or any country's judges think about the state of the world today - may well be be extremely interesting, but it is inherently valueless in interpreting the meaning of the Constitution, and should not therefore form any part of constitutional jurisprudence.

Clearly, 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 isn't

• 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, and rule solely on what it does say. 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 Article V. Sometimes this approach yields results that please conservatives (see, e.g., Justice Scalia's dissents in Roper, supra, or Romer, supra), and sometimes it yields results that do not (see, e.g., Justice Scalia's dissents in BMW v. Gore, Template:Ussc or Hamdi v. Rumsfeld, Template:Ussc.

• Originalism is not strict constructionism

Interestingly, advocates of originalism are often associated with the strict constructionism theory of legislative interpretation, which holds that judges should not go behind the plain meaning of the text and would therefore rule out placing weight on legislative intent. Both philosophies are thought of as being in opposition to judicial activism and The Living Constitution, but potentially point to substantially differing results. See Differentiated from Strict Constructionism, ante.

• Originalism is not always an answer in and of itself

Originalism is a means of constitutional interpretation, not constitutional construction; whenever "to describe this case is not to decide it" (Morrison v. Olson, supra) 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, e.g., McIntyre, supra; Hamdi, supra; Raich v. Gonzales, 545 US ___ (2005); National Cable & Telecommunications Assn. v. Brand X Internet Services, Docket No. 04-277.

Consequences

Originalism is a view that was once widely held; however most law schools now teach their students that a constitution is a "living document" (see, "The Living Constitution)", and thus a generation of lawyers and legal scholars - for better or worse - tend to support the "living constitution" viewpoint. Should the holding of originalist views be required as a criterion for Federal judicial appointments, there are several forseeable consequences.

One possible consequence of such a strict system of legal interpretation is that legislators would need to exert more of an effort to keep a variety of laws up to date than might otherwise be necessary. The leeway afforded by the living constitution paradigm allows Judges quasi-legislative power (writing for the court in Griswold v. Connecticut, 381 U.S. 479 (1965), Justice Douglas noted "We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions"), thus taking some of the load off of - and power from - the actual legislatures. This is done at the cost of what is arguably the unconstitutional expansion of the power of the Judiciary, and at the Federal level, is arguably in violation of the separation of powers, as it infringes on the unique right of the Congress to write Federal legislation (US Constitution, Article 1, Section 1, Clause 1).

Under an original intent decision system, Judges would rarely, if ever, "stretch" laws so as to cover circumstances not theretofore perceived or provided for by the proper legislatures. Thus, rather than leaving such deficiencies to the courts to fix, lawmakers would need to step forward and take responsibility to amend any laws brought to their attention that cause injustices or contain gaps.

If originalism were to regain widespread acceptance, another possible consequence would be an end to politicization of judicial appointments. Conversely, if judges were to be regarded as unchallengeable lawmakers who determine the meaning of the Constitution for today, then politicians would be more inclined to try to ensure that judges chosen reflect their own views on what the laws should mean. This would allow the "dead hand of prior generations" of politicians to influence "the outcome of important contemporary issues", rather than the Constitution.

Quotes

Justice Sutherland

• "The judicial function is that of interpretation; it does not include the power of [Constitutional] amendment under the guise of interpretation." -Justice George Sutherland, West Coast Hotel v. Parrish, 300 U.S. 379 (1937), Dissenting.

Justice Black

• "I believe the Court has no power to add or subtract from the procedures set forth by the Founders...I shall not, at any time, surrender my belief that the document itself should be our guide, not our own cnocept of what is fair, decent, and right." -Justice Hugo Black, In re Winship, 397 U.S. 358 (1970); quoted in Sidney H. Asch, The Supreme Court & It's Great Justices (1971), at p. 191.

Justice Scalia

• "Words do have a limited range of meaning, and no interpretation that goes beyond that range is permissible" -Justice Antonin Scalia (Source)

• "I do not think ...that the avoidance of unhappy consequences is adequate basis for interpreting a text." -Justice Antonin Scalia, Nixon v. Missouri Municipal League et al., 541 U.S. ___ (2004), Concurring in Judgement.

• "In my view, the choice for the judge who believes the death penalty to be immoral is resignation rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty. He has, after all, taken an oath to apply those laws, and has been given no power to supplant them with rules of his own. Of course, if he feels strongly enough, he can go beyond mere resignation and lead a political campaign to abolish the death penalty, and if that fails, lead a revolution. But rewrite the laws he cannot do." -Justice Antonin Scalia (source)

Justice Thomas

• "When struggling to find the right answer to a case, judges should adopt principles of interpretation and methods of analysis that reduce judicial discretion. Reducing discretion is the key to fostering judicial impartiality. The greater the room for judicial discretion, the greater the temptation to write one’s personal opinions into the law. This is especially important at the Supreme Court, where many of the usual limitations on judicial discretion, such as authority from a superior court or stare decisis, either do not exist, or do not exist with the same strength as with other courts." - Justice Clarence Thomas (Source)

• "When interpreting the Constitution and statutes, judges should seek the original understanding of the provision’s text, if the meaning of that text is not readily apparent. This approach works in several ways to reduce judicial discretion and to maintain judicial impartiality. First, by tethering their analysis to the understanding of those who drafted and ratified the text, modern judges are prevented from substituting their own preferences for the Constitution. Second, it places the authority for creating the legal rules in the hands of the people and their representatives, rather than in the hands of the judiciary. The Constitution means what the delegates of the Philadelphia Convention and of the state ratifying conventions understood it to mean; not what we judges think it should mean." - Justice Clarence Thomas (Ibid.)

Others

• "I cannot undertake to lay my finger on that article in the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents..... With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators." - James Madison (Source)

• "The first and fundamental fule in the interpretation of all instruments is to construe them according to the sense and the terms and the intentions of the parties" - Justice Joseph Story, III Commentaries on the Constitution of the United States §400 (1883) at 383

• "The great duty of a judge who construes an instrument, is to find the intention of its makers" - Chief Justice John Marshall; quoted in H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 at 943.

• "As men, whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule, that the objects for which it was given, especially when those ob jects are expressed in the instrument itself, should have great influence in the construction." -John Marshall, Gibbons v. Ogden at 22 U.S. 1 (1824), at 188-189.

• "On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." - Thomas Jefferson, letter to William Johnson, June 12, 1823; q.v. The Complete Jefferson at 322.

See Also

• Strict constructionism
• The Living Constitution
• Constitution in exile

External links

• Justice Scalia lecture at CUA, discussing originalism (1996)
• Justice Scalia lecture at Woodrow Wilson Center, comparing and contrasting originalism from the "living constitution" approach (2005)
• "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