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Originalism is a
legal theory Jurisprudence, also known as theory of law or philosophy of law, is the examination in a general perspective of what law is and what it ought to be. It investigates issues such as the definition of law; legal validity; legal norms and values ...
in the United States which bases
constitutional A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organization or other type of entity, and commonly determines how that entity is to be governed. When these princ ...
,
judicial The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
, and
statutory A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...
interpretation of text on the original understanding at the time of its adoption. Proponents of the theory object to
judicial activism Judicial activism is a judicial philosophy holding that courts can and should go beyond the applicable law to consider broader societal implications of their decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...
and other interpretations related to a
living constitution The Living Constitution, or judicial pragmatism, is the viewpoint that the U.S. constitution holds a dynamic meaning even if the document is not formally amended. Proponents view the constitution as developing alongside society's needs and ...
framework. Instead, originalists argue for democratic modifications of laws through the
legislature A legislature (, ) is a deliberative assembly with the legal authority to make laws for a political entity such as a country, nation or city on behalf of the people therein. They are often contrasted with the executive and judicial power ...
or through
constitutional amendment A constitutional amendment (or constitutional alteration) is a modification of the constitution of a polity, organization or other type of entity. Amendments are often interwoven into the relevant sections of an existing constitution, directly alt ...
. Originalism consists of a family of different theories of constitutional interpretation and can refer to
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 one theory in the originalist family, it has some salient differences whic ...
or original meaning. Critics of originalism often turn to the competing concept of the
Living Constitution The Living Constitution, or judicial pragmatism, is the viewpoint that the U.S. constitution holds a dynamic meaning even if the document is not formally amended. Proponents view the constitution as developing alongside society's needs and ...
, which asserts that a constitution should evolve and be interpreted based on the context of current times. Originalism should not be confused with
strict constructionism In the United States, strict constructionism is a particular Philosophy of law, legal philosophy of judicial interpretation that limits or restricts the powers of the federal government only to those ''expressly'', i.e., explicitly and clearly, ...
. Contemporary originalism emerged during the 1980s and greatly influenced American legal culture, practice, and academia. Over time, originalism became more popular and gained mainstream acceptance by 2020.


History

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 The New Deal was a series of wide-reaching economic, social, and political reforms enacted by President Franklin D. Roosevelt in the United States between 1933 and 1938, in response to the Great Depression in the United States, Great Depressi ...
, when competing theories of interpretation grew in prominence.


Modern

Jurist
Robert Bork Robert Heron Bork (March 1, 1927 – December 19, 2012) was an American legal scholar who served as solicitor general of the United States from 1973 until 1977. A professor by training, he was acting United States Attorney General and a judge on ...
is credited with proposing the first modern theory of originalism in his 1971 law review article, ''Neutral Principles and Some First Amendment Problems'', published in '' The Yale Law Journal''. He noted that without specification in a constitutional text, judges are free to input their own values while interpreting a constitution. Bork proposed one principled method to avoid this: for judges to "take from the document rather specific values that text or history show the framers actually to have intended and which are capable of being translated into principled rules." By following the original meaning, an originalist Supreme Court would therefore "need make no fundamental value choices," and its rulings would be restrained. Law professor
Raoul Berger Raoul Berger (January 4, 1901 – September 23, 2000)ith Philip Kurland * ''The Fourteenth Amendment and the Bill of Rights'' (1989) See also *Living Constitution Notes {{DEFAULTSORT:Berger, Raoul 1901 births 2000 deaths 20th-century Ameri ...
expanded on the theory in '' Government by Judiciary'' (1977), positing that the rulings by the Warren and Burger Courts were illegitimate, as they deviated from the Constitution's
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 one theory in the originalist family, it has some salient differences whic ...
. In 1985,
Edwin Meese Edwin Meese III (born December 2, 1931) is an American attorney, law professor, author and member of the Republican Party who served in Ronald Reagan's gubernatorial administration (1967–1974), the Reagan presidential transition team (1980â ...
,
United States Attorney General The United States attorney general is the head of the United States Department of Justice and serves as the chief law enforcement officer of the Federal government of the United States, federal government. The attorney general acts as the princi ...
under President
Ronald Reagan Ronald Wilson Reagan (February 6, 1911 – June 5, 2004) was an American politician and actor who served as the 40th president of the United States from 1981 to 1989. He was a member of the Republican Party (United States), Republican Party a ...
, advanced a constitutional jurisprudence based on original intent in a speech before the
American Bar Association The American Bar Association (ABA) is a voluntary association, voluntary bar association of lawyers and law students in the United States; national in scope, it is not specific to any single jurisdiction. Founded in 1878, the ABA's stated acti ...
, a jurisprudence that "would produce defensible principles of government that would not be tainted by ideological predilection." A few months after the speech, Justice William Brennan rejected Meese's view, claiming that the original intent of the
Founding Fathers of the United States The Founding Fathers of the United States, often simply referred to as the Founding Fathers or the Founders, were a group of late-18th-century American Revolution, American revolutionary leaders who United Colonies, united the Thirteen Colon ...
was indiscernible, and that text could only be understood in present terms. During the 1980s, liberal members of the legal academy criticized the original intent formulated by Bork, Berger, and Meese. Serious opposition, beginning in law schools, evolved from debates in singular law review articles to books. In 1980,
Paul Brest Paul Brest (born 1940) is an American legal scholar who is a former president of the William and Flora Hewlett Foundation and a former dean of Stanford Law School. He is credited with coining the name originalism to describe a particular appro ...
, who later became the dean of Stanford Law School, published "The Misconceived Quest for the Original Understanding," an article whose criticism of originalism proved formative and influential.; . Brest argued that a collective intent among the
Founding Fathers of the United States The Founding Fathers of the United States, often simply referred to as the Founding Fathers or the Founders, were a group of late-18th-century American Revolution, American revolutionary leaders who United Colonies, united the Thirteen Colon ...
was nonexistent and attempting to do so would be extremely difficult. He also posited that historical changes between the time of adoption to the present made originalism inapplicable in areas such as
free speech Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recognise ...
,
freedom of religion Freedom of religion or religious liberty, also known as freedom of religion or belief (FoRB), is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice ...
,
federalism Federalism is a mode of government that combines a general level of government (a central or federal government) with a regional level of sub-unit governments (e.g., provinces, State (sub-national), states, Canton (administrative division), ca ...
, and
gender discrimination Sexism is prejudice or discrimination based on one's sex or gender. Sexism can affect anyone, but primarily affects women and girls. It has been linked to gender roles and stereotypes, and may include the belief that one sex or gender is in ...
. Other scholars of the period adopted and expanded Brest's critiques, including H. Jefferson Powell and
Ronald Dworkin Ronald Myles Dworkin (; December 11, 1931 – February 14, 2013) was an American legal philosopher, jurist, and scholar of United States constitutional law. At the time of his death, he was Frank Henry Sommer Professor of Law and Philosophy at ...
. Brest and Powell suggested versions of originalism that sought higher purposes than a specific framer's intent, leading to a shift in the dominant form of originalism from original intent to the original public understanding. The debate grew more heated with the failed Supreme Court nomination of Robert Bork in 1986 with the 1990s seeing originalism becoming a broadly endorsed view in the conservative legal movement. The Department of Justice under the Ronald Reagan administration played an important role in lending legitimacy to originalism in the 1980s.


Types

In May 2024, conservative justices on the Supreme Court are reported to be considering new alternative interpretations of originalism.


Original intent

The historical arguments made by
Hugo Black Hugo Lafayette Black (February 27, 1886 – September 25, 1971) was an American lawyer, politician, and jurist who served as a U.S. Senator from Alabama from 1927 to 1937 and as an Associate Justice of the Supreme Court of the United States, ass ...
in ''
Everson v. Board of Education ''Everson v. Board of Education'', 330 U.S. 1 (1947), was a landmark decision of the United States Supreme Court that applied the Establishment Clause of the First Amendment to state law. Before this decision, the clause, which states, "Congress ...
'' relied entirely on historical evidence of the views of Madison and Jefferson and the appropriateness of interpreting the
Establishment Clause In United States law, the Establishment Clause of the First Amendment to the United States Constitution, together with that Amendment's Free Exercise Clause, form the constitutional right of freedom of religion. The ''Establishment Clause'' an ...
based on that evidence.
Edwin Meese Edwin Meese III (born December 2, 1931) is an American attorney, law professor, author and member of the Republican Party who served in Ronald Reagan's gubernatorial administration (1967–1974), the Reagan presidential transition team (1980â ...
once remarked that Black's record was evidence that "jurisprudence of original intention is not some recent conservative ideological creation".


Original public understanding

Original public understanding originalism bases the meaning of a constitutional provision on how the public which ratified it would have generally understood it to mean.
Antonin Scalia Antonin Gregory Scalia (March 11, 1936 â€“ February 13, 2016) 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 an ...
was one of its most prominent theorists. The conservative originalist movement spearheaded by
Raoul Berger Raoul Berger (January 4, 1901 – September 23, 2000)ith Philip Kurland * ''The Fourteenth Amendment and the Bill of Rights'' (1989) See also *Living Constitution Notes {{DEFAULTSORT:Berger, Raoul 1901 births 2000 deaths 20th-century Ameri ...
in the 1980s was a call for
judicial restraint Judicial restraint is a judicial interpretation that recommends favoring the ''status quo'' in judicial activities and is the opposite of judicial activism. Aspects of judicial restraint include the principle of '' stare decisis'' (that new de ...
but over the years important differences have developed among originalist scholars. Justice
Amy Coney Barrett Amy Vivian Coney Barrett (born January 28, 1972) is an American lawyer and jurist serving since 2020 as an Associate Justice of the Supreme Court of the United States, associate justice of the Supreme Court of the United States. The fifth wom ...
explains:
A faithful judge resists the temptation to conflate the meaning of the Constitution with the judge’s own political preference; judges who give into that temptation exceed the limits of their power by holding a statute unconstitutional when it is not. That was the heart of the originalist critique of the Warren and Burger Courts. At the same time, fidelity will inevitably require a court to hold some statutes unconstitutional.
Barrett, who has been described as a protégé of Scalia's, said at her confirmation hearing that she interprets the Constitution "as text, and I understand it to have the meaning that it had at the time people ratified it."


Debate

The originalism debate has divided the American public since the school desegregation decision in ''
Brown v. Board of Education ''Brown v. Board of Education of Topeka'', 347 U.S. 483 (1954), was a landmark decision of the United States Supreme Court that ruled that U.S. state laws establishing racial segregation in public schools are unconstitutional, even if the ...
''. Justices
Antonin Scalia Antonin Gregory Scalia (March 11, 1936 â€“ February 13, 2016) 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 an ...
,
Amy Coney Barrett Amy Vivian Coney Barrett (born January 28, 1972) is an American lawyer and jurist serving since 2020 as an Associate Justice of the Supreme Court of the United States, associate justice of the Supreme Court of the United States. The fifth wom ...
,
Clarence Thomas Clarence Thomas (born June 23, 1948) is an American lawyer and jurist who has served since 1991 as an associate justice of the Supreme Court of the United States. President George H. W. Bush nominated him to succeed Thurgood Marshall. Afte ...
and
Neil Gorsuch Neil McGill Gorsuch ( ; born August 29, 1967) is an American jurist who serves as an Associate Justice of the Supreme Court of the United States, associate justice of the Supreme Court of the United States. He was Neil Gorsuch Supreme Court ...
describe themselves as originalists in scholarly writings and public speeches.


Critics

Supreme Court Justice
Elena Kagan Elena Kagan ( ; born April 28, 1960) is an American lawyer who serves as an Associate Justice of the Supreme Court of the United States, associate justice of the Supreme Court of the United States. She was Elena Kagan Supreme Court nomination ...
, a frequent critic of conservative originalism, argues that some aspects of the constitution were intentionally broad and vague to allow for future generations to interpret them along with the times. Michael Waldman argues that originalism is a new concept, and not one espoused by the founders. According to a 2021 paper in the ''Columbia Law Review'', the Founding Fathers did not include a
nondelegation doctrine The doctrine of nondelegation (or non-delegation principle) is the theory that one branch of government must not authorize another entity to exercise the power or function which it is constitutionally authorized to exercise itself. It is wikt:exp ...
in the Constitution and saw nothing wrong with delegations as a matter of legal theory, contrary to the claims of some originalists. Columbia Law School legal scholar Jamal Greene argues that originalism is remarkably unpopular outside the United States (including Canada, South Africa, India, Israel, and most of Europe), where judicial minimalism or textualism are the recommended responses to judicial activism. Supreme Court Justice William J. Brennan Jr. described originalism as "arrogance cloaked as humility" during a 1985 speech at Georgetown University. In this speech, he also stated “It is arrogant to pretend that from our vantage we can gauge accurately the intent of the framers", and that politicians that claim to do so are motivated purely by political reasons, as they “have no familiarity with the historical record." Harvard Law School legal scholar Richard H. Fallon Jr. argues at length that the Supreme Court Justices who claim to be Originalists actually apply Originalism in a highly selective manner "which typically abets substantively conservative decisionmaking."


Related positions


International law and originalism

Many Originalists reject any consideration of
International law International law, also known as public international law and the law of nations, is the set of Rule of law, rules, norms, Customary law, legal customs and standards that State (polity), states and other actors feel an obligation to, and generall ...
(with an exception for British law before 1791). Antonin Scalia wrote that "We must never forget that it is a Constitution for the United States of America that we are expounding. . . . Where there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution."


Strict constructionism

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). 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". Legal scholar
Randy Barnett Randy Evan Barnett (born February 5, 1952) is an American legal scholar. He serves as the Patrick Hotung Professor of Constitutional Law at Georgetown University, where he teaches constitutional law and contracts, and is the director of the Georg ...
asserts that originalism is a theory of ''interpretation'' and that constructionism is only appropriate when deriving the original intent proves difficult.


Declarationism

Declarationism is a legal philosophy that incorporates the
United States Declaration of Independence The Declaration of Independence, formally The unanimous Declaration of the thirteen States of America in the original printing, is the founding document of the United States. On July 4, 1776, it was adopted unanimously by the Second Continen ...
into the body of case law on level with the
United States Constitution The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, on March 4, 1789. Originally includi ...
. It holds that the Declaration is a
natural law Natural law (, ) is a Philosophy, philosophical and legal theory that posits the existence of a set of inherent laws derived from nature and universal moral principles, which are discoverable through reason. In ethics, natural law theory asserts ...
document and so that natural law has a place within American jurisprudence. During the 1860s, Senator
Charles Sumner Charles Sumner (January 6, 1811March 11, 1874) was an American lawyer and statesman who represented Massachusetts in the United States Senate from 1851 until his death in 1874. Before and during the American Civil War, he was a leading American ...
heralded declarationism as justifying all
human rights Human rights are universally recognized Morality, moral principles or Social norm, norms that establish standards of human behavior and are often protected by both Municipal law, national and international laws. These rights are considered ...
legislation without the need for the ultimately ratified
Reconstruction Amendments The , or the , are the Thirteenth, Fourteenth, and Fifteenth amendments to the United States Constitution, adopted between 1865 and 1870. The amendments were a part of the implementation of the Reconstruction of the American South which oc ...
. Harry V. Jaffa and
Clarence Thomas Clarence Thomas (born June 23, 1948) is an American lawyer and jurist who has served since 1991 as an associate justice of the Supreme Court of the United States. President George H. W. Bush nominated him to succeed Thurgood Marshall. Afte ...
have been cited as proponents of this school of thought.


See also

*
Living Constitution The Living Constitution, or judicial pragmatism, is the viewpoint that the U.S. constitution holds a dynamic meaning even if the document is not formally amended. Proponents view the constitution as developing alongside society's needs and ...
*
Unconstitutional constitutional amendment An unconstitutional constitutional amendment is a concept in judicial review based on the idea that even a properly passed and properly ratified constitutional amendment, specifically one that is not explicitly prohibited by a constitution's text ...


References


References

* Barnett, Randy E. (2004). ''Restoring the Lost Constitution: The Presumption of Liberty''. Princeton, New Jersey: Princeton University Press. . * * * * * * * * Kesavan, Vasan and Paulsen, Michael Stokes
"The Interpretive Force of the Constitution's Secret Drafting History"
91 ''Georgetown Law Journal'' 1113 (2003). * Lawson, Gary S.br>"On Reading Recipes — and Constitutions"
85 ''Georgetown Law Journal'' 1823 (1997). * * * * * * * * * * * * *


Further reading

*
Why Originalism Is So Popular
(January 13, 2011) by Eric A. Posner, ''
The New Republic ''The New Republic'' (often abbreviated as ''TNR'') is an American magazine focused on domestic politics, news, culture, and the arts from a left-wing perspective. It publishes ten print magazines a year and a daily online platform. ''The New Y ...
''
Trumping Precedent with Original Meaning: Not as Radical as It Sounds
(4 May 2005) by
Randy Barnett Randy Evan Barnett (born February 5, 1952) is an American legal scholar. He serves as the Patrick Hotung Professor of Constitutional Law at Georgetown University, where he teaches constitutional law and contracts, and is the director of the Georg ...
*


External links


The Originalism Blog
at the Center for the Study of Constitutional Originalism at the
University of San Diego School of Law The University of San Diego School of Law (USD Law) is the law school of the University of San Diego, a private Roman Catholic research university in San Diego, California. Founded in 1954, the law school has held ABA approval since 1961. It ...

Lecture
by
Antonin Scalia Antonin Gregory Scalia (March 11, 1936 â€“ February 13, 2016) 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 an ...
at
Woodrow Wilson Center The Woodrow Wilson International Center for Scholars (WWICS) or Wilson Center is a Washington, D.C.–based think tank dedicated to research and policy discussions on global issues. Established by an act of Congress in 1968, it serves as both ...
via
Center for Individual Freedom Center or centre may refer to: Mathematics *Center (geometry), the middle of an object * Center (algebra), used in various contexts ** Center (group theory) ** Center (ring theory) * Graph center, the set of all vertices of minimum eccentrici ...
comparing and contrasting originalism from the "living constitution" approach (2005) {{Tea Party movement Supreme Court of the United States Conservatism in the United States United States constitutional law Intention Theories of constitutional interpretation