Originalism

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.^[7] 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.^[8][9][10]

Critics of originalism argue it is a new concept, with Ruth Marcus crediting Robert Bork's 1971 article "Neutral Principles and Some First Amendment Problems" as its first manifestation.^[11][12][13] The term "originalism" was coined by liberal critic Paul Brest in 1980.^[13][14] It was not until the 1980s, when conservative jurists began to take seats on the Supreme Court, that the debate really began in earnest with the 1990s seeing originalism becoming a broadly endorsed view in the conservative legal movement.^[13] The Department of Justice under the Ronald Reagan administration played an important role in lending legitimacy to originalism in the 1980s.^[15][16][17]

The first modern originalist on the Supreme Court was Justice Scalia, followed by Thomas and Alito. President Trump's appointees are seen to mostly follow originalism.^[13]

In May 2024, conservative justices on the Supreme Court are reported to be considering new alternative interpretations of originalism.^[18]

Originalism has influenced many areas of law in the United States.^{[citation needed]} The Seventh Amendment to the United States Constitution^[19] and the Second Amendment to the United States Constitution have been subject to originalist interpretations in some major cases.^[20][21]

There are different forms of Originalism, including those which focus on the original meaning of the Constitution.^{[citation needed]} Justice Scalia, Originalism's chief architect,^[22] defined himself as believing in original meaning:

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.^[23]

Support edit

Neil Gorsuch argued in 2019 that originalism constrains judges to act as neutral arbiters by having judges set aside their policy preferences when ruling, and that through this judicial restraint and opposition to judicial activism, originalists uphold democracy.^[24] Gorsuch claims that cases like Dred Scott and Korematsu cannot be defended when examining the Constitution's original meaning.^[24] Segregationist Sam Ervin was an early proponent of originalism as he used the theory to argue in opposition to civil rights legislation during the 1960s.^[25] According to University of Toledo law professor Lee J. Strang, early versions of originalism ("not the sophisticated, more-fully explicated originalism of today") were used at the Founding up until the 1930s.^[8]

Opposition edit

Calvin Terbeek argues that originalism'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.^[26]

Supreme Court Justice Elena Kagan, 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.^[27]

Michael Waldman argues that originalism is a new concept, and not one espoused by the founders.^[11] He also criticizes conservatives as embracing originalism because it was conservative, not embracing conservatism because it was originalist.^[13]

According to a 2021 paper in the Columbia Law Review, the Founding Fathers did not include a nondelegation doctrine in the Constitution and saw nothing wrong with delegations as a matter of legal theory, contrary to the claims of some originalists.^[28]

Ruth Marcus wonders why we should keep the original meaning as fixed when the U.S. was in an agrarian economy where black people were enslaved and women treated like chattel. She argues that the Constitution was written with the understanding that it would apply to circumstances not yet forseen, and with language flexible enough to accommodate them.^[13]

Jamal Greene argues that originalism is remarkably unpopular outside the United States (including Canada, South Africa, India, Israel, and most of Europe), where minimalism or textualism are the recommended responses to judicial activism.^[29]

Justice William J. Brennan Jr. described originalism as "arrogance cloaked as humility"^[30] 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."

International Law and Originalism edit

Many Originalists reject any consideration of International law (with an exception for British law before 1791).^{[citation needed]} Justice Scalia, echoing Chief Justice John Marshall in Marbury v. Madison, 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."^[31]

Strict constructionism edit

Antonin 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).^[32] 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".^[33]

Legal scholar Randy Barnett asserts that originalism is a theory of interpretation and that constructionism is only appropriate when divining the original intent proves difficult.^[34]

Declarationism edit

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.^[35] Harry V. Jaffa and Clarence Thomas have been cited as proponents of this school of thought.^[35]

• Unconstitutional constitutional amendment

• Barnett, Randy E. (2004). Restoring the Lost Constitution: The Presumption of Liberty. Princeton, New Jersey: Princeton University Press. ISBN 978-0691115856.
• Calabresi, Steven G., ed. (2007). Originalism: A Quarter-Century of Debate. Washington, DC: Regnery Pub. Inc. ISBN 978-1-59698-050-1.
• Chemerinsky, Erwin (2022). Worse Than Nothing: The Dangerous Fallacy of Originalism. New Haven, Connecticut: Yale University Press. ISBN 978-0300259902. Review
• 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. "On Reading Recipes — and Constitutions", 85 Georgetown Law Journal 1823 (1997).
• Rakove, Jack N. (1996). Original Meanings: Politics and Ideas in the Making of the Constitution. New York: Alfred A. Knopf. ISBN 0-394-57858-9.
• Whittington, Keith E. (1999). Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review. Lawrence, Kansas: University Press of Kansas. ISBN 0-7006-0969-5.
• Strang, Lee J. (2019). Originalism's Promise: A Natural Law Account of the American Constitution. Cambridge University Press. doi:10.1017/9781108688093. ISBN 978-1108475631. LCCN 2019000042.

• Joseph J. Ellis (2018). American Dialogue: The Founders and Us. Knopf. ISBN 978-0385353427.
• Why Originalism Is So Popular (January 13, 2011) by Eric A. Posner, The New Republic
• Trumping Precedent with Original Meaning: Not as Radical as It Sounds (4 May 2005) by Randy Barnett

• The Originalism Blog at the Center for the Study of Constitutional Originalism at the University of San Diego School of Law
• Lecture by Antonin Scalia at Woodrow Wilson Center via Center for Individual Freedom comparing and contrasting originalism from the "living constitution" approach (2005)