Originalism

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, we can discern 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.[14]

However, a number of problems are inherent in intentionalism, and a fortiori when that theory is 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 they 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.

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 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 is an approach developed by Jack Balkin, a professor of law at Yale Law School. Framework Originalism, or Living Originalism, is a blend of primarily two constitutional interpretive methods: originalism and Living Constitution. Balkin holds that there is no inherent contradiction between these two, aforementioned, 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 be applied to. 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 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 enough to constrain judicial behavior. Constraint itself does not just come from doctrine or canons, it also comes 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]

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."[27]

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 says of a particular case or controversy, and when questions arise as to the meaning of a given constitutional provision, that provision should be given the meaning it was understood to mean when ratified. 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.[28]

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, in which Justice Stone (writing for a unanimous Court) ruled that the Tenth Amendment had no legal meaning—the Court has increasingly taken to making rulings[29] 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".[30]

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 interpretation of 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.

• If a constitution no longer meets the exigencies of a society's "evolving standard of decency", and the people wish to amend or replace the document, there is nothing stopping them from doing so in the manner which was envisioned by the drafters: through the amendment process. The Living Constitution approach would thus only be valuable in the absence of an amendment process.
• Originalism deters judges from unfettered discretion to inject their personal values into constitutional interpretation. Before one can reject originalism, one must find another criterion for determining the meaning of a provision, lest the "opinion of this Court [rest] so obviously upon nothing however the personal views of its members".[31] Scalia has averred that "there is no other" criterion to constrain judicial interpretation.[32]
• Originalism helps ensure predictability and protects against arbitrary changes in the interpretation of a constitution; to reject originalism implicitly repudiates the theoretical underpinning of another theory of stability in the law, stare decisis.
• If a constitution as interpreted can truly be changed at the decree of a judge, then "[t]he Constitution ... is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please," said Thomas Jefferson.[33] Hence, the purpose of the constitution would be defeated, and there would be no reason to have one.
• The Ninth Amendment is sometimes cited by critics to attack originalism. Self-described originalists have been at least as willing as judges of other schools to give the Ninth Amendment no substantive meaning or to treat it as surplusage duplicative of the Tenth Amendment. Bork described it as a Rorshach blot and claimed that the courts had no power to identify or protect the rights supposedly protected by it. Scalia held similarly: "[T]he Constitution's refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even afarther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people." Troxel v. Granville 530 U.S. 57 (2000) (Scalia, J. Dissenting). Scalia's interpretation renders the Ninth Amendment entirely unenforcable and moot, which is clearly contrary to its original intent. However, this is a criticism of specific originalists—and a criticism that they are insufficiently originalist—not a criticism of originalism. The theory of originalism as a whole is entirely compatible with the Ninth Amendment. Alternative theories of originalism have been argued by Randy Barnett that give the Ninth Amendment more practical effect than many other schools of legal thought do.
• Contrary to critics of originalism, originalists do not always agree upon an answer to a constitutional question, nor is there any requirement that they have to. There is room for disagreement as to what original meaning was, and even more as to how that original meaning applies to the situation before the court. But the originalist at least knows what he is looking for: the original meaning of the text. Usually, that is easy to discern and simple to apply. Sometimes there will be disagreement regarding the original meaning; and sometimes there will be disagreement as to how that original meaning applies to new and unforeseen phenomena. How, for example, does the First Amendment of the U.S. constitution guarantee of "the freedom of speech" apply to new technologies that did not exist when the guarantee was codified—to sound trucks, or to government-licensed over-the-air television? In such new fields the Court must follow the trajectory of the First Amendment, so to speak, to determine what it requires, and that enterprise is not entirely cut-and-dried, but requires the exercise of judgment. But the difficulties and uncertainties of determining original meaning and applying it to modern circumstances are negligible compared with the difficulties and uncertainties of the philosophy which says that the constitution changes; that the very act which it once prohibited it now permits, and which it once permitted it now forbids; and that the key to that change is unknown and unknowable. The originalist, if he does not have all the answers, has many of them.[34]
• If the people come to believe that the constitution is not a text like other texts; if it means, not what it says or what it was understood to mean, but what it should mean, in light of the evolving standards of decency that mark the progress of a maturing society, they will look for qualifications other than impartiality, judgment, and lawyerly acumen in those whom they elect to interpret it. More specifically, they will look for people who agree with them as to what those evolving standards have evolved to; who agree with them as to what the constitution ought to be. If the courts are free to write the Constitution anew, they will write it the way the majority wants; the appointment and confirmation process will see to that. This suggests the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all.[34]

• If one is then to look at the interpretation (or, meaning), which inheres at the particular time period, the question becomes: why is that reading the essential one? Or, restated, an essential reading, then, is owing to whom? Is it owing, then, to the meaning derived by the average person at that time? The collective intent of the voters who passed it? Or is it possible that they indeed entrusted the framers with the authority to draft the constitution; i.e., that the intent of the drafters should remain relevant? Originalism faces hermeneutic difficulties in understanding the intentions of the Founding Fathers, who lived 200 years ago (original intent), or the context of the time in which they lived (original meaning). Justice Scalia accepted this problem: "It's not always easy to figure out what the provision meant when it was adopted ... I do not say [originalism] is perfect. I just say it's better than anything else".[35]
• Legal controversy rarely arises over constitutional text with uncontroversial interpretations. How, then, does one determine the original "meaning" of an originally broad and ambiguous phrase? Thus, originalists often conceal their choice between levels of generality or possible alternative meanings as required by the original meaning when there is considerable room for disagreement.
• It could be argued (as, for example, Justice Breyer has) that constitutions are meant to endure over time, and to do so, their interpretation must therefore be more flexible and responsive to changing circumstances than the amendment process.
• Originalists often argue that, where a constitution is silent, judges should not read rights into it (i.e. a textualist interpretation).[36] However, the Ninth Amendment, seen through an originalist lens, can be seen as providing the judiciary with means of protecting rights which the founders had not thought, for whatever reasons, to explicitly list, such as rights involving abortion, gender and sexual orientation equality, and capital punishment. This presents a particular challenge to the theory of Original Intent, which seems to thus suggest just the opposite of what the text of the Constitution and original intent of the founders arguably affirm, creating an inconsistency in the practice of at least one branch of Originalism. The subsequent Tenth Amendment, detailing non-enumerated rights as the sole property of the states and the people, is often cited as the clarification for this inconsistency and the reason why the federal courts have no say in affirming or denying said rights per the Ninth Amendment.
• Originalism allows the dead hand of prior generations to control important contemporary issues to an extraordinary and unnecessary level of detail. While everyone agrees that broad constitutional principles should control, if the question is whether abortion is a fundamental right, why should past centuries-old intentions be controlling? The originalist's distinction between original meaning and original intention here is unclear due to the difficulty of discussing meaning in terms of specific details that the Constitutional text does not clarify.
• In writing such a broad phrase such as "cruel and unusual", it is considered implausible by some that the framers intended for its very specific meaning at that time to be permanently controlling. The purpose of phrases such as "cruel and unusual," rather, is specifically not to specify which punishments are forbidden, but to create a flexible test that can be applied over future centuries. Stated alternatively, there is no reason to think the framers have a privileged position in making this determination of what is cruel and unusual; while their ban on cruel and unusual punishment is binding on us, their understanding of the scope of the concept "cruel" need not be.
• If applied scrupulously, originalism requires the country either to continually reratify the Constitution to retain contemporary standards for tests such as "cruel and unusual punishment" or "unreasonable searches and seizures," or to change the language to specifically state that these tests shall be administered according to the standards of the society administering the test. Critics of originalism believe that the first approach is too burdensome, while the second is already inherently implied.

• Critics argue that originalism, as applied by its most prominent proponents, is sometimes pretext (or, at least, the "rules" of originalism are sometimes "bent") to reach desired ends, no less so than the Living Constitution. For example, Jack Balkin has averred that neither the original understanding nor the original intent of the 14th Amendment is compatible with the result implicitly reached by the originalist justices Thomas and Scalia in their willingness to join Chief Justice Rehnquist's concurrence in Bush v. Gore, 531 U.S. 98 (2000). Furthermore, while both Scalia and Thomas have objected on originalist grounds to the use of foreign law by the court (see, respectively, Thompson v. Oklahoma, 487 U.S. 815, 868 (1988), and Knight v. Florida, 528 U.S. 990 (1999)), both have allowed it to seep into their opinions at one time or another (see, respectively, McIntyre v. Ohio Elections Committee, 514 U.S. 334, 381 (1995) and Holder v. Hall, 512 U.S. 874, 904 (1994)).