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Originalism

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In the context of United States law, originalism is a concept regarding the interpretation of the Constitution that asserts that all statements in the Constitution must be interpreted based on the original understanding "at the time it was adopted". This concept views the Constitution as stable from the time of enactment and that the meaning of its contents can be changed only by the steps set out in Article Five.[1] This notion stands in contrast to the concept of the Living Constitution, which asserts that the Constitution should be interpreted based on the context of current times, even if such interpretation is different from the original interpretations of the document.[2][3] Originalism should not be confused with strict constructionism.[4]

The development of originalism was influenced by Herbert Wechsler's influential lecture on Neutral Principles. The idea that judicial review was distinguished from ordinary political process by the application of principles grew to be understood as fundamental to the legitimacy of judicial interpretation.[5] Proponents of originalism argue that originalism was the primary method of legal interpretation in America from the time of its founding until the time of the New Deal, when competing theories of interpretation grew in prominence.[6][7][8] Critics of originalism argue that it's appeal in modern times is rooted in conservative political resistance to the Brown v. Board of Education Supreme Court decision and opposition to some civil rights legislation.[9]

"Originalism" can refer to original intent or original meaning. The divisions between the 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.

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List of amendments to the United States Constitution

List of amendments to the United States Constitution

Thirty-three amendments to the United States Constitution have been proposed by the United States Congress and sent to the states for ratification since the Constitution was put into operation on March 4, 1789. Twenty-seven of these, having been ratified by the requisite number of states, are part of the Constitution. The first ten amendments were adopted and ratified simultaneously and are known collectively as the Bill of Rights. The 13th, 14th, and 15th amendments are collectively known as the Reconstruction Amendments. Six amendments adopted by Congress and sent to the states have not been ratified by the required number of states. Four of these amendments are still pending, one is closed and has failed by its own terms, and one is closed and has failed by the terms of the resolution proposing it. All 27 ratified and 6 unratified amendments are listed and detailed in the tables below.

Article Five of the United States Constitution

Article Five of the United States Constitution

Article Five of the United States Constitution describes the process for altering the Constitution. Under Article Five, the process to alter the Constitution consists of proposing an amendment or amendments, and subsequent ratification.

Living Constitution

Living Constitution

The Living Constitution, or judicial pragmatism, is the viewpoint that the United States Constitution holds a dynamic meaning that evolves and adapts to new circumstances even if the document is not formally amended. The Constitution is said to develop alongside society's needs and provide a more malleable tool for governments. The idea is associated with views that contemporary society should be considered in the constitutional interpretation of phrases. The Constitution is referred to as the living law of the land as it is transformed according to necessities of the time and the situation. Some supporters of the living method of interpretation, such as professors Michael Kammen and Bruce Ackerman, refer to themselves as organists.

Strict constructionism

Strict constructionism

In the United States, strict constructionism is a particular legal philosophy of judicial interpretation that limits or restricts such interpretation only to the exact wording of the law.

Herbert Wechsler

Herbert Wechsler

Herbert Wechsler was an American legal scholar and former director of the American Law Institute (ALI). He is most widely known for his constitutional law scholarship and for the creation of the Model Penal Code. The Journal of Legal Studies has identified Wechsler as one of the most cited legal scholars of the 20th century.

New Deal

New Deal

The New Deal was a series of programs, public work projects, financial reforms, and regulations enacted by President Franklin D. Roosevelt in the United States between 1933 and 1939. Major federal programs agencies included the Civilian Conservation Corps (CCC), the Works Progress Administration (WPA), the Civil Works Administration (CWA), the Farm Security Administration (FSA), the National Industrial Recovery Act of 1933 (NIRA) and the Social Security Administration (SSA). They provided support for farmers, the unemployed, youth, and the elderly. The New Deal included new constraints and safeguards on the banking industry and efforts to re-inflate the economy after prices had fallen sharply. New Deal programs included both laws passed by Congress as well as presidential executive orders during the first term of the presidency of Franklin D. Roosevelt.

Brown v. Board of Education

Brown v. Board of Education

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), was a landmark decision by the U.S. Supreme Court, which ruled that U.S. state laws establishing racial segregation in public schools are unconstitutional, even if the segregated schools are otherwise equal in quality. The decision partially overruled the Court's 1896 decision Plessy v. Ferguson, which had held that racial segregation laws did not violate the U.S. Constitution as long as the facilities for each race were equal in quality, a doctrine that had come to be known as "separate but equal". The Court's decision in Brown paved the way for integration and was a major victory of the civil rights movement, and a model for many future impact litigation cases.

Original intent

Original intent

Original intent is a theory in law concerning constitutional and statutory interpretation. It is frequently used as a synonym for originalism; while original intent is indeed one theory in the originalist family, it has some salient differences which has led originalists from more predominant schools of thought such as original meaning to distinguish original intent as much as legal realists do.

Original meaning

Original meaning

In the context of United States constitutional interpretation, original meaning is the dominant form of the legal theory of originalism today. It was made popular by Supreme Court Justice Antonin Scalia and contends that the terms of the United States Constitution should be interpreted as meaning what they meant when they were ratified, which is to say, it asks the question: "What would a reasonable person living at the time of ratification have understood these words to mean?"

Forms

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.[10] Two alternative understandings about the sources of meaning have been proposed:

As a school of legal thought, originalism can be traced to Robert Bork's "Neutral Principles and Some First Amendment Problems", published in the Indiana Law Journal in January 1971.[12] However, 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

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, one might decide 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]

According to a 2021 paper in the Columbia Law Review, the Founding Fathers did not include a nondelegation doctrine in the Constitution, contrary to the claims of some originalists.[14] According to the paper, "the Founders saw nothing wrong with delegations as a matter of legal theory."[14]

Problems with intentionalism

However, intentionalism encounters numerous problems when 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 their views 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.[15] 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.[16]

In response to this, a different strain of originalism, articulated by (among others) Antonin Scalia,[17] Robert Bork,[18] and Randy Barnett,[19] came to the fore. This is dubbed original meaning.

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."[20] 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[21] 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 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.[22]

Though there is 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 illustrating the importance of the difference between original intent and original meaning is 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.[23]

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.[24]

Framework originalism

Supreme Court Justice Antonin Scalia (pictured) was a firm believer in originalism
Supreme Court Justice Antonin Scalia (pictured) was a firm believer in 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 two principal constitutional interpretive methods: originalism and Living Constitution. Balkin holds that there is no inherent contradiction between these two 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).[25] 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 have applied. 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 the 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 to constrain judicial behavior. Constraint itself does not just come from doctrine or canons, but also 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 act as impartial arbiters of the law and to try to behave in a principled manner, as it applies to decision making.

Professor Nelson Lund of George Mason University Law School has criticized Balkin's living originalism theory.[26] Specifically, Lund argues that living originalism could be used to read the 26th Amendment to the United States Constitution in such a way that it allows for an 18-year-old U.S. President (with the argument being that the 26th Amendment implicitly amends the 35-year age requirement for the U.S. Presidency as well as all other age requirements for federal offices to make all of them 18 years).[26] Also, Lund argues that if living originalism could be used to justify a constitutional right to same-sex marriage, then "it would be child's play to construct the Fourteenth Amendment into a shield for polygamy, prostitution, incest (at least among adults), polyamorous marriages, and a variety of other unorthodox sexual relationships."[26] Finally, Lund argues that "[w]hatever one's reasons for accepting Balkin's proposal to marry originalism and living constitutionalism, doing so leaves originalism itself in a condition akin to the legal death that married women experienced under the old rules of coverture."[26]

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Original intent

Original intent

Original intent is a theory in law concerning constitutional and statutory interpretation. It is frequently used as a synonym for originalism; while original intent is indeed one theory in the originalist family, it has some salient differences which has led originalists from more predominant schools of thought such as original meaning to distinguish original intent as much as legal realists do.

Alfred Avins

Alfred Avins

Alfred Avins (1934–1999) was an American lawyer, law professor, and dean. Born in New York City on June 29, 1934, Avins earned a bachelor's degree from City University of New York, 1954, an Ll.B from Columbia Law School, 1956, his J.D. from the University of Chicago and a Ph.D from the University of Cambridge. His first book was The Law of AWOL (1957). He was best known as a staunch opponent of Civil Rights legislation; he was the author of numerous articles that criticized anti-discrimination legislation or sought to limit its scope. He was also the author of The Reconstruction Amendments' Debates: The Legislative History and Contemporary Debates in Congress on the 13th, 14th, and 15th Amendments, which was designed to show the limited scope of the Reconstruction Amendments to support federal anti-discrimination legislation. It has proven a useful resource for some scholars looking into the history of the Reconstruction Amendments.

Raoul Berger

Raoul Berger

Raoul Berger was an American attorney and professor at The University of California at Berkeley and Harvard Law School. While at Harvard, he was the Charles Warren Senior Fellow in American Legal History. He is known for his role in the development of originalism.

Government by Judiciary

Government by Judiciary

Government by Judiciary is a 1977 book by constitutional scholar and law professor Raoul Berger which argues that the U.S. Supreme Court has interpreted the Fourteenth Amendment of the U.S. Constitution contrary to the original intent of the framers of this Amendment and that the U.S. Supreme Court has thus usurped the authority of the American people to govern themselves and decide their own destiny. Berger argues that the U.S. Supreme Court is not actually empowered to rewrite the U.S. Constitution – including under the guise of interpretation – and that thus the U.S. Supreme Court has consistently overstepped its designated authority when it used its powers of interpretation to de facto rewrite the U.S. Constitution in order to reshape it more to its own liking.

Original meaning

Original meaning

In the context of United States constitutional interpretation, original meaning is the dominant form of the legal theory of originalism today. It was made popular by Supreme Court Justice Antonin Scalia and contends that the terms of the United States Constitution should be interpreted as meaning what they meant when they were ratified, which is to say, it asks the question: "What would a reasonable person living at the time of ratification have understood these words to mean?"

Reasonable person

Reasonable person

In law, a reasonable person, reasonable man, or the man on the Clapham omnibus, is a hypothetical person of legal fiction crafted by the courts and communicated through case law and jury instructions.

Plain meaning rule

Plain meaning rule

The plain meaning rule, also known as the literal rule, is one of three rules of statutory construction traditionally applied by English courts. The other two are the "mischief rule" and the "golden rule".

Antonin Scalia

Antonin Scalia

Antonin Gregory Scalia was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectual anchor for the originalist and textualist position in the U.S. Supreme Court's conservative wing. For catalyzing an originalist and textualist movement in American law, he has been described as one of the most influential jurists of the twentieth century, and one of the most important justices in the history of the Supreme Court. Scalia was posthumously awarded the Presidential Medal of Freedom in 2018 by President Donald Trump, and the Antonin Scalia Law School at George Mason University was named in his honor.

Clarence Thomas

Clarence Thomas

Clarence Thomas is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 1991. After Marshall, Thomas is the second African American to serve on the Court and its longest-serving member since Anthony Kennedy's retirement in 2018.

Amy Coney Barrett

Amy Coney Barrett

Amy Vivian Coney Barrett is an associate justice of the Supreme Court of the United States. The fifth woman to serve on the court, she was nominated by President Donald Trump and has served since October 27, 2020. She was a U.S. circuit judge on the U.S. Court of Appeals for the Seventh Circuit from 2017 to 2020.

Committee of Detail

Committee of Detail

The Committee of Detail was a committee established by the United States Constitutional Convention on July 24, 1787, to put down a draft text reflecting the agreements made by the convention up to that point, including the Virginia Plan's 15 resolutions. The convention adjourned from July 26 to August 6 to await their report. Much of what was contained in the final document was present in this draft.

Law review

Law review

A law review or law journal is a scholarly journal or publication that focuses on legal issues. A law review is a type of legal periodical. Law reviews are a source of research, imbedded with analyzed and referenced legal topics; they also provide a scholarly analysis of emerging law concepts from various topics. Law reviews are generated in almost all law bodies/institutions worldwide. However, in recent years, some have claimed that the traditional influence of law reviews is declining.

Related positions

Strict constructionism

According to University of Toledo law professor Lee J. Strang, a conservative advocate for originalism,[27] early versions of originalism ("not the sophisticated, more-fully explicated originalism of today") were used at the Founding up until the 1930s; Strang notes that his claims are "contested in the literature" though.[28]

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.[29][30][31][32]

Both theories are associated with textualist and formalist schools of thought; however, there are pronounced differences between them. 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).[33] 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".[34]

Legal scholar Randy Barnett asserts that originalism is a theory of interpretation, not construction.[35] 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 she is not one by virtue of being the other.

Declarationism

Declarationism is a legal philosophy that incorporates the United States Declaration of Independence into the body of case law on level with the United States Constitution. It holds that the Declaration is a natural law document and so that natural law has a place within American jurisprudence.[36] Its main proponents include Harry V. Jaffa and other members of the Claremont Institute. Some proponents claim that Supreme Court Justice Clarence Thomas is a follower of this school of thought; however, Thomas is more widely considered a member of the strict constructionist school.

In Cotting v. Godard, 183 U.S. 79 (1901), the United States Supreme Court stated:

The first official action of this nation declared the foundation of government in these words: "We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness." While such declaration of principles may not have the force of organic law, or be made the basis of judicial decision as to the limits of right and duty, and while in all cases reference must be had to the organic law of the nation for such limits, yet the latter is but the body and the letter of which the former is the thought and the spirit, and it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence. No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which is the foundation of free government."

Proponents claim that the concept is derived from the philosophical structure contained in the Declaration of Independence and assertion that it was the Declaration that revealed the United States as a new emergent nation, the Constitution creating only the federal government. According to this view, the authority to create the Constitution derives from the prior act of nation-creation accomplished by the Declaration. The Declaration declares that the people have a right to alter or abolish any government once it becomes destructive of their natural rights. The turn away from the Articles of Confederation with the ratification of the Constitution was an action of this sort and so the Constitution's authority exists within the legal framework established by the Declaration. The Constitution cannot, then, be interpreted as though it were the foundation of constitutional law, in the absence of principles derived from the Declaration.

Though philosophically conservative, Declarationists such as Jaffa have been outspoken critics of originalist jurists including Robert Bork, Antonin Scalia, and William Rehnquist, likening them to legal positivists. Bork and legal scholar Lino Graglia have, in turn, critiqued the Declarationist position, retorting that it is single-mindedly obsessive over the Dred Scott decision and resembles a theology rather than a legal doctrine.

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Paul Brest

Paul Brest

Paul Brest is an American scholar of constitutional law, a former president of the William and Flora Hewlett Foundation, and a former dean of Stanford Law School. He is an influential theorist on the role of non-profit organizations in society, and is widely credited with coining the name originalism to describe a particular approach to interpreting the United States Constitution.

Strict constructionism

Strict constructionism

In the United States, strict constructionism is a particular legal philosophy of judicial interpretation that limits or restricts such interpretation only to the exact wording of the law.

Natural law

Natural law

Natural law is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law. According to natural law theory, all people have inherent rights, conferred not by act of legislation but by "God, nature, or reason." Natural law theory can also refer to "theories of ethics, theories of politics, theories of civil law, and theories of religious morality."

Harry V. Jaffa

Harry V. Jaffa

Harry Victor Jaffa was an American political philosopher, historian, columnist, and professor. He was a professor emeritus at Claremont McKenna College and Claremont Graduate University, and a distinguished fellow of the Claremont Institute. Robert P. Kraynak says his "life work was to develop an American application of Leo Strauss's revival of natural-right philosophy against the relativism and nihilism of our times".

Claremont Institute

Claremont Institute

The Claremont Institute is a conservative think tank based in Upland, California. The institute was founded in 1979 by four students of Harry V. Jaffa. It produces the Claremont Review of Books, The American Mind, and other publications.

Clarence Thomas

Clarence Thomas

Clarence Thomas is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 1991. After Marshall, Thomas is the second African American to serve on the Court and its longest-serving member since Anthony Kennedy's retirement in 2018.

Articles of Confederation

Articles of Confederation

The Articles of Confederation and Perpetual Union was an agreement among the 13 Colonies of the United States of America that served as its first frame of government. It was approved after much debate by the Second Continental Congress on November 15, 1777, and sent to the states for ratification. The Articles of Confederation came into force on March 1, 1781, after ratification by all the states. A guiding principle of the Articles was to establish and preserve the independence and sovereignty of the states. The weak central government established by the Articles received only those powers which the former colonies had recognized as belonging to king and parliament. The document provided clearly written rules for how the states' "league of friendship" would be organized.

Robert Bork

Robert Bork

Robert Heron Bork was an American jurist who served as the Solicitor General of the United States from 1973 to 1977. A professor at Yale Law School by occupation, he later served as a judge on the U.S. Court of Appeals for the D.C. Circuit from 1982 to 1988. In 1987, President Ronald Reagan nominated Bork to the U.S. Supreme Court, but the U.S. Senate rejected his nomination after a highly publicized confirmation hearing.

Antonin Scalia

Antonin Scalia

Antonin Gregory Scalia was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectual anchor for the originalist and textualist position in the U.S. Supreme Court's conservative wing. For catalyzing an originalist and textualist movement in American law, he has been described as one of the most influential jurists of the twentieth century, and one of the most important justices in the history of the Supreme Court. Scalia was posthumously awarded the Presidential Medal of Freedom in 2018 by President Donald Trump, and the Antonin Scalia Law School at George Mason University was named in his honor.

Legal positivism

Legal positivism

Legal positivism is a school of thought of analytical jurisprudence developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin developed legal positivist theory, empiricism provided the theoretical basis for such developments to occur. The most prominent legal positivist writer in English has been H. L. A. Hart, who, in 1958, found common usages of "positivism" as applied to law to include the contentions that:laws are commands of human beings; there is not any necessary relation between law and morality, that is, between law as it is and as it ought to be; analysis of legal concepts is worthwhile and is to be distinguished from history or sociology of law, as well as from criticism or appraisal of law, for example with regard to its moral value or to its social aims or functions; a legal system is a closed, logical system in which correct decisions can be deduced from predetermined legal rules without reference to social considerations ; moral judgments, unlike statements of fact, cannot be established or defended by rational argument, evidence, or proof.

Lino Graglia

Lino Graglia

Lino Anthony Graglia was the A. W. Walker Centennial Chair in Law at the University of Texas specializing in antitrust litigation. He earned a BA from the City College of New York in 1952, and an LLB from Columbia University in 1954, before working in the Eisenhower administration's United States Department of Justice. He thereafter practiced law in Washington, D.C., and New York City before joining the University of Texas' law school in 1966.

Dred Scott v. Sandford

Dred Scott v. Sandford

Dred Scott v. Sandford, 60 U.S. 393 (1857), was a landmark decision of the United States Supreme Court that held that the United States Constitution was not meant to include American citizenship for people of black African descent, regardless of whether they were enslaved or free, and so the rights and privileges that the Constitution confers upon American citizens could not apply to them. The Supreme Court's decision has been widely denounced, both for its overt racism and for its crucial role in the start of the American Civil War four years later. Legal scholar Bernard Schwartz said that it "stands first in any list of the worst Supreme Court decisions". Chief Justice Charles Evans Hughes called it the Court's "greatest self-inflicted wound".

Methodology

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

  • "The task is to determine the original meaning of the language ... that is, to understand how knowledgeable individuals would have understood this language ... when it was drafted and ratified. Interpreters at the time would have examined various factors, including text, purpose, structure, and history."
  • "The most important factor is the text of the Clause. The modern interpreter should read the language in accord with the meaning it would have had in the late 1780s. Permissible meanings from that time include the ordinary meanings as well as more technical legal meanings words may have had."
  • "If the language has more than one interpretation, then one would look to purpose, structure, and history to help to clarify the ambiguity. Purpose, structure, and history provide evidence for determining which meaning of the language the authors would have intended."
    • "The purpose of a Clause involves the objectives or goals that the authors would have sought to accomplish in enacting it. One common and permissible way to discern the purpose is to look to the evident or obvious purpose of a provision. Yet, purpose arguments can be dangerous, because it is easy for interpreters to focus on one purpose to the exclusion of other possible purposes without any strong arguments for doing so."
    • "Historical evidence can reveal the values that were widely held by the Framers' generation and that presumably informed their purposes when enacting constitutional provisions. History can also reveal their practices, which when widely accepted would be evidence of their values."
    • "The structure of the document can also help to determine the purposes of the Framers. The decision to enact one constitutional clause may reveal the values of the Framers and thereby help us understand the purposes underlying a second constitutional clause."
  • "One additional source of evidence about the meaning of constitutional language is early constitutional interpretations by government officials or prominent commentators. ... Such interpretations may provide evidence of the original meaning of the provisions, because early interpreters would have had better knowledge of contemporary word meanings, societal values, and interpretive techniques. Of course, early interpreters may also have had political and other incentives to misconstrue the document that should be considered." (Id. at 5–7).

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 of the United States 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."[37]

Function of constitutional jurisprudence

Dissenting in Romer v. Evans, 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 say 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, 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.[38]

In Marbury, Chief Justice John 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, the Court has increasingly taken to making rulings[39] 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"; Scalia inveighed that "the worst thing about the living constitution is that it will destroy the constitution".[40]

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 interpreting 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.

Discover more about Discussion related topics

Marbury v. Madison

Marbury v. Madison

Marbury v. Madison, 5 U.S. 137 (1803), was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws and statutes that they find to violate the Constitution of the United States. Decided in 1803, Marbury is regarded as the single most important decision in American constitutional law. The Court's landmark decision established that the U.S. Constitution is actual law, not just a statement of political principles and ideals, and helped define the boundary between the constitutionally separate executive and judicial branches of the federal government.

Constitution of the United Kingdom

Constitution of the United Kingdom

The Constitution of the United Kingdom or British constitution comprises the written and unwritten arrangements that establish the United Kingdom of Great Britain and Northern Ireland as a political body. Unlike in most countries, no attempt has been made to codify such arrangements into a single document, thus it is known as an uncodified constitution. This enables the constitution to be easily changed as no provisions are formally entrenched; the Supreme Court of the United Kingdom recognises that there are constitutional principles, including parliamentary sovereignty, the rule of law, democracy, and upholding international law.

United States Congress

United States Congress

The United States Congress is the legislature of the federal government of the United States. It is bicameral, composed of a lower body, the House of Representatives, and an upper body, the Senate. It meets in the United States Capitol in Washington, D.C. Senators and representatives are chosen through direct election, though vacancies in the Senate may be filled by a governor's appointment. Congress has 535 voting members: 100 senators and 435 representatives. The vice president of the United States has a vote in the Senate only when senators are evenly divided. The House of Representatives has six non-voting members.

State governments of the United States

State governments of the United States

State governments of the United States are institutional units exercising functions of government at a level below that of the federal government. Each U.S. State's government holds legislative, executive, and judicial authority over a defined geographic territory. The United States comprises 50 States: 9 of the Thirteen Colonies that were already part of the United States at the time the present Constitution took effect in 1789, 4 that ratified the Constitution after its commencement, plus 37 that have been admitted since by Congress as authorized under Article IV, Section 3 of the Constitution.

Romer v. Evans

Romer v. Evans

Romer v. Evans, 517 U.S. 620 (1996), is a landmark United States Supreme Court case dealing with sexual orientation and state laws. It was the first Supreme Court case to address gay rights since Bowers v. Hardwick (1986), when the Court had held that laws criminalizing sodomy were constitutional.

John Marshall

John Marshall

John Marshall was an American politician and lawyer who served as the fourth Chief Justice of the United States from 1801 until his death in 1835. He remains the longest-serving chief justice and fourth-longest serving justice in the history of the U.S. Supreme Court, and is widely regarded as one of the most influential justices ever to serve. Prior to joining the Court, Marshall served as the fourth U.S. Secretary of State under President John Adams.

Judicial review

Judicial review

Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompatible with a higher authority: an executive decision may be invalidated for being unlawful or a statute may be invalidated for violating the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries.

Trop v. Dulles

Trop v. Dulles

Trop v. Dulles, 356 U.S. 86 (1958), was a United States Supreme Court case in which the Court ruled that it was unconstitutional to revoke citizenship as a punishment for a crime. The ruling's reference to "evolving standards of decency" is frequently cited in Eighth Amendment jurisprudence.

Common law

Common law

In law, common law is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions.

William Blackstone

William Blackstone

Sir William Blackstone was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle-class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke College, Oxford, in 1738. After switching to and completing a Bachelor of Civil Law degree, he was made a fellow of All Souls College, Oxford, on 2 November 1743, admitted to Middle Temple, and called to the Bar there in 1746. Following a slow start to his career as a barrister, Blackstone became heavily involved in university administration, becoming accountant, treasurer and bursar on 28 November 1746 and Senior Bursar in 1750. Blackstone is considered responsible for completing the Codrington Library and Warton Building, and simplifying the complex accounting system used by the college. On 3 July 1753 he formally gave up his practice as a barrister and instead embarked on a series of lectures on English law, the first of their kind. These were massively successful, earning him a total of £453, and led to the publication of An Analysis of the Laws of England in 1756, which repeatedly sold out and was used to preface his later works.

Commentaries on the Laws of England

Commentaries on the Laws of England

The Commentaries on the Laws of England are an influential 18th-century treatise on the common law of England by Sir William Blackstone, originally published by the Clarendon Press at Oxford, 1765–1770. The work is divided into four volumes, on the rights of persons, the rights of things, of private wrongs and of public wrongs.

Due process

Due process

Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual person from it. When a government harms a person without following the exact course of the law, this constitutes a due process violation, which offends the rule of law.

Source: "Originalism", Wikipedia, Wikimedia Foundation, (2022, December 1st), https://en.wikipedia.org/wiki/Originalism.

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Citations
  1. ^ a b B. Boyce, "Originalism and the Fourteenth Amendment", 33 Wake Forest L. Rev. 909.
  2. ^ Ackerman, Bruce (January 1, 2017). "The Holmes Lectures: The Living Constitution". Yale University Law School.
  3. ^ Vloet, Katie (September 22, 2015). "Two Views of the Constitution: Originalism vs. Non-Originalism". University of Michigan Law.
  4. ^ (PDF) https://web.archive.org/web/20060911103004/http://www.tannerlectures.utah.edu/lectures/scalia97.pdf. Archived from the original (PDF) on September 11, 2006. Retrieved March 7, 2022. {{cite web}}: Missing or empty |title= (help)
  5. ^ Schultz, David Andrew (2009). Encyclopedia of the United States Constitution. Facts on File. p. 164. ISBN 9781438126777.
  6. ^ Strang, Lee J. (2019). "A Brief History of Originalism in American Constitutional Interpretation". [doi:10.1017/9781108688093.002 In Originalism's Promise: A Natural Law Account of the American Constitution]. Cambridge: Cambridge University Press. pp. 9–42. doi:10.1017/9781108688093.002. ISBN 9781108688093. S2CID 241824223. {{cite book}}: Check |url= value (help)
  7. ^ Currie, David P. (2005). The Constitution in Congress: Democrats and Whigs 1829-1861. Chicago: University Of Chicago Press. pp. xiii. ISBN 978-0226129006.
  8. ^ Wurman, Ilan, ed. (2017), "The Origins of Originalism", A Debt Against the Living: An Introduction to Originalism, Cambridge: Cambridge University Press, p. 14, doi:10.1017/9781108304221.003, ISBN 978-1-108-41980-2
  9. ^ Terbeek, Calvin (2021). ""Clocks Must Always Be Turned Back": Brown v. Board of Education and the Racial Origins of Constitutional Originalism". American Political Science Review. 115 (3): 821–834. doi:10.1017/S0003055421000095. ISSN 0003-0554.
  10. ^ L. Solum (November 25, 2008)[April 16, 2008]."Semantic Originalism", Illinois Public Law Research Paper No. 07-24.
  11. ^ Barrett, Amy Coney (July 2017). "Originalism and Stare Decisis". Notre Dame Law Review. 92 (5).
  12. ^ Bork, Robert H. (January 1971). "Neutral Principles and Some First Amendment Problems". Indiana Law Journal 1. 47 (1). Retrieved April 1, 2016 – via Digitalcommons.law.yale.edu.
  13. ^ Ex Parte McCardle, 74 U.S. 506 (Wall.) (1868)
  14. ^ a b Review, Columbia Law (2021). "Delegation at the Founding". Columbia Law Review. Retrieved March 19, 2021.{{cite web}}: CS1 maint: url-status (link)
  15. ^ See, for example, Powell, "The Original Understanding of Original Intent", 98 Harv. L. Rev. 885 (1985)
  16. ^ See also, W. Serwetman, Originalism At Work in Lopez: An Examination of the Recent Trend in Commerce Clause Jurisprudence
  17. ^ See "A Matter of Interpretation", supra; see also, A. Scalia, Originalism: the Lesser Evil Archived February 21, 2006, at the Wayback Machine, 57 U. Cin. L. Rev. 849.
  18. ^ See R. Bork, The tempting of America: The political seduction of the law.
  19. ^ See R. Barnett, An Originalism for non-Originalists, 45 Loy. L. Rev. 611; R. Barnett, Restoring the Lost Constitution.
  20. ^ O. W. Holmes, Collected Legal Papers, ISBN 978-0-8446-1241-6, p. 204
  21. ^ "Thomas Sowell Articles – Political Columnist & Commentator". townhall.com. Retrieved March 19, 2016.
  22. ^ See A. Scalia, A Theory of Constitution Interpretation, speech at Catholic University of America, 10/18/96.
  23. ^ Barnett, Randy. Restoring the Lost Constitution, p. 95 (Princeton U. Press 2013).
  24. ^ Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law: Federal Courts and the Law, p. 144 (Princeton University Press 1998).
  25. ^ 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.
  26. ^ a b c d Lund, Nelson. (February 27, 2015) "Living Originalism: The Magical Mystery Tour" Texas A&M Law Review, Vol. 3, No. 1, pp. 31–43, 2015. George Mason Law & Economics Research Paper No. 15-07.
  27. ^ "Originalist Scholarship and Conservative Politics - New Rambler Review". newramblerreview.com. Retrieved May 26, 2021.
  28. ^ Strang, Lee (2019), "A Brief History of Originalism in American Constitutional Interpretation", Originalism's Promise: A Natural Law Account of the American Constitution, Cambridge University Press, pp. 9–42, ISBN 978-1-108-47563-1
  29. ^ The University of Chicago, The Law School "I am not a strict constructionist, and no one ought to be."
  30. ^ "Can Bush Deliver a Conservative Supreme Court?". Archived from the original on December 19, 2005. Retrieved December 16, 2005.
  31. ^ "Mini-Guide to Future Supreme Court Appointments in the Bush Administration". Archived from the original on December 16, 2005. Retrieved December 16, 2005.
  32. ^ Gerken, Wil; Hendler, Nathan; Floyd, Doug; Banks, John. "News & Opinion: Who Would Bush Appoint to the Supreme Court? (The Boston Phoenix . 04-10-00)". Retrieved March 19, 2016.
  33. ^ See Smith v. United States, 508 U.S. 223 (1993)
  34. ^ A. Scalia, A Matter of Interpretation, ISBN 978-0-691-00400-6, Amy Guttman ed. 1997, at p. 23.
  35. ^ Barnett, The Original Meaning of the Commerce Clause
  36. ^ Kersch, Ken I. "Beyond originalism: Conservative declarationism and constitutional redemption." Md. L. Rev. 71 (2011): 229.
  37. ^ "The New Guard". 1973. Retrieved March 19, 2016.
  38. ^ A. Scalia, Law & Language; First Things, November 2005
  39. ^ 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).
  40. ^ See Scalia, Constitutional Interpretation, speech at Woodrow Wilson International Center 3/14/05
General and cited references
  • Originalism: The Quarter-Century of Debate (2007) ISBN 978-1-59698-050-1.
  • Jack N. Rakove. Original Meanings: Politics and Ideas in the Making of the Constitution (1997) ISBN 978-0-394-57858-3.
  • Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (2001) ISBN 978-0-7006-1141-6.
  • Vasan Kesavan & Michael Stokes Paulsen. "The Interpretive Force of the Constitution's Secret Drafting History," 91 Geo. L.J. 1113 (2003).
  • Randy E. Barnett. Restoring the Lost Constitution (2005) ISBN 978-0691123769.
  • Gary Lawson. "On Reading Recipes ... and Constitutions," 85 Geo. L.J. 1823 (1996–1997) .
Further reading
External links

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