Originalism definition/advantages/History/originalism today/implications

Originalism is a judicial concept that states that all statements in the United States Constitution must be interpreted strictly in accordance with how it would have been understood or was intended to be understood at the time it was adopted in 1787. Originalism definition

Main advantages: Originalism

  • Originalism is a concept that requires all court decisions to be based on the meaning of the United States Constitution at the time it was adopted.
  • Originalists claim that the Constitution must be interpreted strictly according to how it would have been understood by the authors.
  • Originalism stands in contrast to the theory of “living constitutionalism” – the belief that the meaning of the Constitution must change over time.
  • Supreme Court justices Hugo Black and Antonin Scalia were particularly noted for their originalist approach to constitutional interpretation.
  • Today, originalism is typically associated with conservative political views. Originalism definition

Definition and History of Originalism

Originalists – defenders of originalism – believe that the Constitution in its entirety has a fixed meaning, as determined when it was adopted, and cannot be changed without a constitutional amendment. Originalists further believe that if the meaning of any provision of the Constitution is found to be ambiguous, it must be interpreted and applied on the basis of historical accounts and how those who wrote the Constitution would have interpreted it in time.

Originalism is often contrasted with “living constitutionalism” – the belief that the meaning of the Constitution must change over time, as social attitudes change, even without the adoption of a formal constitutional amendment. Living constitutionalists believe, for example, that racial segregation was constitutional from 1877 to 1954 because public opinion seemed in favor or at least not opposed, and that it became unconstitutional only as a result of the 1954 Supreme Court decision in Brown. v. Education Council. Originalists, in contrast, believe that racial segregation has been outlawed since the adoption of the Fourteenth Amendment in 1868.

Although it has evolved over time, modern originalist theory agrees on two propositions. First, almost all originalists agree that the meaning of each constitutional provision was fixed at the time that provision was adopted. Second, originalists agree that judicial practice must be constrained by the original meaning of the Constitution. Originalism definition

Contemporary originalism emerged in the 1970s and 1980s as a response to what conservative jurists perceived as the activist liberal decisions of the Supreme Court under Chief Justice Earl Warren. Conservatives complained that, driven by the “living Constitution” theory, judges were replacing what the Constitution allowed with their own progressive preferences. In doing so, they reasoned, the judges were rewriting, rather than following the Constitution, and effectively “legislating from the bank.” The only way to avoid this was to determine that the operational meaning of the Constitution had to be its original meaning. Thus, those who endorsed this constitutional theory came to call themselves originalists.

Supreme Court Associate Justice Hugo Black was particularly noted for his originalist approach to constitutional interpretation. His belief that the text of the Constitution is definitive on any issue that requires judicial interpretation has earned Black a reputation as a “Textualist” and as a “strict constructionist”. In 1970, for example, Black refused to participate in attempts by other Court judges to abolish capital punishment. He argued that the references to “life” crimes and “capital” crimes in the Fifth and Fourteenth Amendments made the passage of the death penalty implicit in the Bill of Rights. Originalism definition

Black also rejected the widely held belief that the Constitution guaranteed the right to privacy. In its disagreement with the Court’s decision in the 1965 case of Griswold v. Connecticut, which upheld the right to spousal privacy by overturning a conviction for using contraceptives, Black wrote: “It belittles the Fourth Amendment to talk about it as if it protects nothing but ‘privacy’… ‘Privacy’ is a broad concept, abstract and ambiguous… The constitutional right to privacy is not found in the Constitution. ”

Justice Black criticized judicial reliance on what he called a “mysterious and uncertain” concept of natural law. In his view, this theory was arbitrary and gave judges an excuse to impose their personal political and social views on the nation. In this context, Black was a fervent believer in judicial restraint – the concept of judges not injecting their preferences into legal proceedings and decisions – often berating his more liberal colleagues for what he saw as judicially created legislation.

Perhaps no Supreme Court justice has been more remembered for his efforts to promote theories of constitutional originalism and textualism than Justice Antonin Scalia. Prior to Scalia’s appointment to the Court in 1986, the legal community had largely ignored both theories. In deliberations, he often managed to convince his colleagues that interpreting the text of the Constitution literally is what best respects the democratic process.

Many constitutional scholars consider Scalia to be the Court’s most persuasive voice of “strict constructionists,” judges who believe it is their sworn duty to interpret the law rather than make it. viva” as a means of allowing unelected members of the judiciary to circumvent democratic processes in enacting new laws, leaving the legislative and executive branches accountable to the people. Originalism definition

Especially in his dissenting views, Scalia appeared to be warning the American people of the dangers of non-literal and ever-changing interpretations of the Constitution. For example, in its dissent from the majority of the Courts’ decision in Morrison v. Olson, Scalia wrote:

“Once we depart from the text of the Constitution, exactly where do we stop? The most surprising feature of the Court’s opinion is that it does not even intend to give an answer. Evidently, the ruling standard must be what might be called the unqualified wisdom of the majority of this Court, revealed to an obedient people on a case-by-case basis. This is not just the rule of law that the Constitution has established; it is not a government of laws. ”

In the 2005 case of Roper v. Simmons, the Court ruled 5-4 that the execution of minors violated the prohibition of “cruel and unusual punishment” found in the Eighth Amendment. In his dissent, Scalia criticized most judges for not basing their decision on the original meaning of the Eighth Amendment, but on the “evolving standards of decency of our national society.” He concluded: “I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective opinions of five members of this Court.” Originalism definition

originalism today

Originalism is now well established, with most Supreme Court justices today expressing at least some agreement with their basic theories. Even Judge Elena Kagan, considered one of the Court’s most liberal judges, testified at her Senate confirmation hearing that these days “we’re all originalists.”

More recently, the theory of originalism has featured prominently in Senate confirmation hearings for Supreme Court Justices Neil Gorsuch in 2017, Brett Kavanaugh in 2018, and Amy Coney Barrett in 2020. All three expressed varying degrees of support for an originalist interpretation of Constitution. Generally considered politically conservative, all three nominees avoided questions about the originalist theory of progressive senators: don’t originalists ignore the constitutional amendments adopted since 1789? Do originalists still interpret the Constitution as it applied to citizen farmers carrying muskets in horse-drawn carriages? How can originalism be justified today, when the Founders were not originalists?

In support of the claim that the Founders were not originalists, Pulitzer Prize-winning historian Joseph Ellis claimed that the Founders viewed the Constitution as a “structure” destined to change over time, not as an eternal truth. In support of his thesis, Ellis cites Thomas Jefferson’s observation that “We may well demand that a man still wear the coat he had as a boy as a civilized society to remain forever under the rule of his barbarian ancestors. ” Originalism definition

Despite originalism’s current prominence, modern political and social realities have largely precluded the concept from providing the conservative judicial interpretations envisioned by its strongest advocates such as Justices Black and Scalia. Instead, legal scholars conclude that, as practiced today, originalism does not eliminate, but to some extent requires that the provisions of the Constitution be better interpreted to produce results. For example, in the 1989 case of Texas v. Johnson, Justice Scalia himself was compelled to vote against his personal political preference when he reluctantly joined a 5-4 majority in the conclusion that the burning of a flag is a form of political speech protected by the First Amendment.

The Federalist Society

Today, one of the main defenders of originalism comes from Scalia, along with Justice William Rehnquist, Justice Robert Bork and the other core members of the then newly created Federalist Society. According to them, the greatest strength of originalism is its supposed definitiveness or “determination”. Scalia regularly criticized various theories of the “Living Constitution” concept as being hopelessly arbitrary, open-ended and unpredictable. In contrast, Scalia and his allies argued that uniform application of the Constitution’s original meaning was fundamentally a well-defined judicial task. Originalism definition

Founded in 1982, the Federalist Society is an organization of conservatives and libertarians that advocates a textualist and originalist interpretation of the United States Constitution. It is also one of the most influential legal organizations in the United States. Its members emphatically believe that it is the competence and duty of the judiciary to say what the law is, not what it should be.

The Heller Case

Perhaps no Supreme Court case better illustrates the complicated ways in which originalism can affect today’s judiciary than the 2008 District of Columbia gun control case v. Heller, which many legal scholars claim has reversed over 70 years of legal precedent. This landmark case questioned whether a 1975 District of Columbia law restricting registration and therefore ownership of firearms violated the Second Amendment. For years, the National Rifle Association insisted that the amendment established the “right to bear arms” as an individual right. Starting in 1980, the Republican Party began to incorporate this interpretation into its platform.

However, Pulitzer Prize-winning historian Joseph Ellis, a biographer of several of the Founders, asserts, the Second Amendment, when written, referred only to service in the militia. The Militia Act of 1792 required every physically able male American citizen to obtain a firearm – specifically “a good musket or firearm” – to facilitate his participation in the “well-regulated militia” as described in Amendment Thus, Ellis argues, the original intent of the Second Amendment was an obligation to serve, not an individual right to own a gun. In the 1939 case of United States v. Miller, the Supreme Court, in ruling that Congress could regulate the ownership of sawed-off shotguns, Originalism definition

In DC v. Heller, however, Justice Scalia – the avowed originalist – led a conservative majority of 5-4 in painstakingly detailing the history and tradition of the Second Amendment at the time of the Constitutional Convention to conclude that the Second Amendment established an individual right for citizens of the United States. USA have firearms. In his majority opinion, Scalia wrote that the Founders could have reworded the Second Amendment to state that, “Because a well regulated militia is necessary for the security of a free state, the right of the people to keep and bear arms will not be infringed. ”

Although Scalia would later describe his majority opinion on Heller as “my masterpiece”, many legal scholars, including Joseph Ellis, claim that the opinion represented revisionist reasoning rather than true originalism.

Political implications

While the judicial system is expected to be immune to politics, Americans tend to view court decisions involving interpretations of the Constitution as having been influenced by liberal or conservative arguments. This trend, along with the injection of politics into the judiciary, can be attributed to the fact that presidents often appoint federal judges who they believe – or hope – will reflect their personal political views in their decisions.

Today, originalism in constitutional interpretation is typically associated with conservative political views. Considering the history of modern originalist theory and constitutional politics, this is understandable. While originalist arguments have a long history, politically motivated originalism emerged as a response to liberal constitutional decisions by the Warren and Burger courts. Many judges and legal scholars have argued that conservative justices in the Warren and Burger courts not only misinterpreted the Constitution, but also acted illegally in making their decisions. Originalism definition

These criticisms reached a climax during the Ronald Reagan administration, the founding of the Federalist Society, and the evolution of the current conservative legal movement that embraces originalism as its foundation. As a result, many conservatives echo originalist arguments, naturally leading the public to associate originalism with conservatives in both electoral politics and the judicial process.

Originalism’s current dominance in politics does not reflect the “right or wrong” of its underlying legal theory, but rather depends on its ability to bring together empowered citizens, government officials, and judges in a broad-based conservative political movement.

Progressives often argue that, rather than a means of arriving at well-founded constitutional interpretations, originalism is often used as an “excuse” for achieving political conservatism results in court. The originalists’ real goal, they argue, is to achieve a set of constitutional doctrines that appeal to conservative politicians and public interest groups. Originalism definition

In defense of the originalists’ goals, Edwin Meese III, attorney general to Ronald Reagan, asserted that rather than seeking “to achieve a ‘conservative judicial revolution’ in substance of law,” Presidents Reagan and George HW Bush, through their appointments for the Supreme Court, sought to establish “a federal judiciary that understood its proper role in a democracy, respected the authority of the legislative and executive branches, and limited its trials in accordance with the role of the judiciary prescribed in the Constitution. In doing so, Meese argued, Reagan and Bush had succeeded.

support and criticism

Supporters of originalism argue that it forces judges to follow the text of the Constitution, even when they disagree with the decisions that the text mandates. In a 1988 lecture explaining why he is an originalist, Judge Scalia said, “The main danger (rampant) judicial interpretation of the Constitution is that judges will confuse their own predilections with the law.”

In theory, originalism prevents or at least inhibits judges from making this mistake by restricting their decisions to the eternal meaning of the Constitution. In reality, however, even the most ardent originalist would admit that following the text of the Constitution is much more complicated than it appears.

First, the Constitution is full of ambiguities. For example, what exactly makes a search or seizure “irrational?” What or who is the “militia” today? If the government wants to take away your freedom, how much “due process of law” is needed? And, of course, what is the “general welfare of the United States?”

Many provisions of the Constitution were vague and uncertain when they were written. This is partially attributable to the fact that the creators realized that they could not predict the distant future with certainty. Judges are limited in what they can learn about constitutional meaning from historical documents or by reading eighteenth-century dictionaries.

Judge Amy Coney Barrett, a self-proclaimed originalist herself, seems to recognize this problem. “For an originalist,” she wrote in 2017, “the meaning of text is fixed as long as it is detectable.” Originalism definition

Finally, originalism faces the problem of legal precedent. What should originalist judges do, for example, if they are certain that a long-standing practice – perhaps one that the Supreme Court itself declared constitutional in a previous decision – violates the original meaning of the Constitution as they understand it?

After the War of 1812, for example, there was a strong debate among Americans over whether it was constitutional for the federal government to levy the taxes needed to fund “internal improvements” such as roads and canals. In 1817, President James Madison vetoed a bill that funded this construction as unconstitutional.

Today, Madison’s opinion is widely rejected. But what if a modern Supreme Court dominated by originalists concluded that Madison was correct? Would the entire federal highway system have to be dug up?

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