Originalism

Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy. Originalists argue that the meaning of the Constitution is as static as the scene portrayed in Christy's famous painting.

In the context of U.S. constitutional interpretation, originalism is a family of theories which share the starting point that a Constitution (or statute) has a fixed and knowable meaning, which should be adhered to by judges. A neologism, "originalism" is a formalist theory of law, which is closely intertwined with textualism. It is mostly popular among U.S. political conservatives, but some liberals, such as Hugo Black and Akhil Amar, also subscribe to the theory.

Because it is often hostile to precedent, some opponents have charged that originalism is a form of judicial activism.

Originalism is a family of theories, principally:

• One theory, original intent, is the view that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it.
• The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution should be based on what the ordinary meaning of the text would have been at the time it was adopted; that is, what it would have been understood to mean by reasonable persons living at the time of its ratification?

What these theories share in common is a view that there is an authority that is contemporaneous with the ratification which should govern its interpretation; the divisions relate to what exactly that authority is: the intentions of the authors, the understanding of either the authors or the ratifiers, or the plain meaning of the text.

Origins of the term

In Originalism and the Fourteenth Amendment ^[1], Brett 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 ^[2]. Earlier discussions often used the term "interpretivism" to denote theories that sought to derive meaning from the constitutional text alone ("textualism"), or from the intentions of the originators ("intentionalism"). See, e.g., John Hart Ely, Democracy and Distrust: a Theory of Judicial Review ("interpretivism"); Thomas Grey, Do We Have an Unwritten Constitution? ^[3] ("interpretive model"); H. Jefferson Powell, The Original Understanding of Original Intent ^[4] ("intentionalism").

Current discussions have tended to reject the labels "interpretivism", which often embraces nonoriginalist textualism, and "intentionalism", which suggests reliance on subjective intentions rather than objective meaning. See Gregory Bassham, Original Intent and the Constitution ^[5]; Richard B. Saphire, Enough About Originalism ^[6]. ^[7]

Citations omitted for clarity, moved to footnotes.

Differentiated from strict constructionism

Originalism is often, and inaccurately, used as an interchangeable synonym for strict constructionism. [8][9][10][11][12]

Both theories are associated with Textualist and Formalist schools of thought, but there are pronounced differences between them. Justice Scalia differentiates the two by pointing out that "he uses a cane" means "he walks with a cane", not what a strict use of the words might suggest ^[13]. Scalia has averred that he is "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" ^[14].

To put the difference more explicitly, both schools take the plain meaning of the text as their starting point, but have different approaches that can best be illustrated with a fictitious example.

Suppose that the Constitution contained (which it obviously does not) a provision that a person may not be "subjected to the punishments of hanging by the neck, beheading, stoning, pressing, or execution by firing squad". A Strict Constructionist would most likely interpret that clause to mean that the specific punishments mentioned above were unconstitutional, but that other forms of capital punishment were not. For a Strict Constructionist, the specific, strict reading of the text is the beginning and end of the inquiry.

For an Originalist, however, the text is the beginning of the inquiry, and two Originalists might reach very different results, not only from the Strict Constructionist, but from each other. "Originalists can reach different results in the same case" (see What Originalism is Not — Originalism is not always an answer in and of itself, infra); one originalist might look at the context in which the clause was written, and might discover that the punishments listed in the clause were the only forms of capital punishment in use at that time, and the only forms of capital punishment that had ever been used at the time of ratification. This originalist might therefore conclude that capital punishment in general — including those methods for it invented since ratification, such as the electric chair — are not constitutional. Another originalist may look at the text and see that the writers created a list. He would assume that the Congress intended this to be an exhaustive list of objectionable executions. Otherwise, they would have banned capital punishment as a whole, instead of listing specific means of punishment. He would rule that other forms of execution are constitutional.

Originalism is a theory of interpretation, not construction. As Scalia has 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, then they are bound by that meaning - but 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 s/he is not one ex officio of the other.

Forms of originalism

Originalism is actually a family of related views.

Original intent

Main article: Original intent

The "original form of originalism", used for ordinary law as well as constitutional law, was called "Original intent", and entailed applying laws based on the subjective intention of its authors. For instance, the authors of the U.S. Constitution would be the group of "Founding Fathers" that drafted it. Applying this form involves studying the writings of its authors, or the records of the Philadelphia Convention, for clues as to their intent.

Problems with original intent

However, original intent has fallen out of favor since a string of Law review articles attacking Robert Bork and the original intent process ^[15] prior to his (Bork's) abortive Senate confirmation hearing to the Supreme Court. 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

Main article: 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, Thomas Sowell notes that phrases like "due process" and "freedom of the press" had a long established meaning in British 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 out what particular terms meant. See Methodolody, infra).

Justice Scalia, one of the most forceful modern advocates for originalism, defines 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." ^[21]

Methodology

In The Original Meaning of the Recess Appointments Clause, Prof. 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

Dissenting in Dred Scott v. Sanford ^[22], Justice Benjamin R. Curtis wrote:

"Whether such decrees are wise or unwise, whether their subjects are citizens or not, if they are usurpation of power, our rights are both infringed and endangered. They are infringed because the power to decide and act is taken away from the people without their consent. They are endangered because in a constitutional government, every usurpation of power dangerously disorders the whole framework of the state."

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 ^[23]:

"[The 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 U.S. 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 witheld 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 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. "If the constitution can mean anything, then the constitution means nothing".

Function of Constitutional jurisprudence

Dissenting in Romer v. Evans ^[24], Justice Antonin 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 the book Law's Quandry ^[25], Justice 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."

In Marbury, supra, Chief Justice Marshall established that the Supreme Court could invalidate laws which violated the Constitution (i.e. 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 ^[26], in which Justice Stone ruled that the 10th Amendment had no legal meaning - the Court has increasingly taken to making rulings ^[27] 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 taking into account "the context of international jurisprudence"), and then attempted to justify that determination through a "creative reading" of the text.

This latter approach is frequently termed "the Living constitution"; Justice Scalia has inveighed that "the worst thing about the living constitution is that it will destroy the constitution" ^[28].

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 ^[29] - and 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.

On an originalist interpretation, if the meaning of the Constitution is static, then any ex post facto information (such what American people, American judges, or any country's judges think about the state of the world today) is inherently valueless in interpreting the meaning of the Constitution, and should not form any part of constitutional jurisprudence.

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.

What originalism is not

Originalism is not "the theory of original intent"

As discussed previously, Original intent is only one theory in the Originalist family of theories. Many of the criticisms that are directed at Original intent (see, e.g., text accompanying n.36, infra) do not apply to other Originalist theories. It is possible to attack Originalism on the merits (as, for example, Cass Sunstein does occasionally).

Originalism is not conservatism

It is not accurate to say that originalism rejects change, or that originalists necessarily oppose the use of "the evolving standards of decency" in determining what the Constitution ought to say; rather, originalism rejects the concept that the courts should consider what the Constitution ought to say, and rule solely on what it does say. Originalists argue that the business of determining what the Constitution and the law ought to say is within the purview of the Congress, that changes to the law should come through the legislature, and changes to the constitution should be made per the amendment process outlined in Article V. Sometimes this approach yields results that please conservatives (see, e.g., Justice Scalia's dissents in Roper, supra, or Romer, supra), and sometimes it yields results that do not (see, e.g., Justice Scalia's dissents in BMW v. Gore ^[30], or Hamdi v. Rumsfeld ^[31].

Originalism is not strict constructionism

Advocates of originalism are often associated with strict constructionism, and the terms are frequently used interchangeably. Both philosophies are thought of as being in opposition to judicial activism and the idea of the "Living Constitution", and one may be both an Originalist and a Strict Constructionist, but they are not the same thing, and can potentially point to substantially differing results. See Differentiated from Strict Constructionism, ante.

Originalism is not always an answer in and of itself

Originalism is a means of constitutional interpretation, not constitutional construction; whenever "to describe [a] case is not to decide it" ^[32], it can only serve as a guide for what the Constitution says, not how that text applies to a given case or controversy. Thus, Originalists can reach different results in the same case; see, e.g., United States v. Fordice ^[33]; McIntyre, supra; Hamdi, supra; Gonzales v. Raich ^[34]; National Cable & Telecommunications Assn. v. Brand X Internet Services, Docket No. 04-277. According to The New Republic, although Scalia admits that Thomas "is really the only justice whose basic approach to the law is the same as mine", that magazine contends that "during the court's 2003-2004 term, Scalia and Thomas voted together in only 73 percent of cases, and six other pairs of justices agreed with each other more often than Thomas and Scalia did."

Pros and cons

Note that several of the arguments for and against Originalism shoould be read in conjunction with alternative views and rebuttals, presented in footnotes.

Arguments favoring originalism

1. Since the Constitution is approved by the authority of the people, originalism is required to maintain their sovereignty. ^[35]
2. If the Constitution no longer meets the exigencies of 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 Framers: through the amendment process. The "Living Constitution" approach would thus only be valuable in the absence of an amendment process.
3. Originalism prevents judges from gaining unfettered discretion to inject their personal values into the written Constitution. Before one can reject originalism, one must find another philosophy, another criterion for determining the meaning of a provision, lest the "opinion of this Court [rest] so obviously upon nothing but the personal views of its members" ^[36]. What other criteria can be suggested to constrain judicial interpretation? Scalia has averred, "there is none other" ^[37].
4. Originalism helps ensure predictability and protects against arbitrary changes in the interpretation of the Constitution; to reject originalism implicitly repudiates stare decisis. ^[38]
5. If the Constitution as interpreted can truly be changed at the decree of a judge, then "The Constitution… is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please." (Thomas Jefferson) ^[39]
6. If the Constitution is to be interpreted in light of "the evolving standards of decency," why should the Supreme Court — nine lawyers — be the ones to have the final say over its interpretation? Is not the Congress, which faces election every two to six years, thereby more likely to be in touch with the current standards of decency, and therefore better placed to make such judgements? If originalism is wrong, then Marbury v. Madison — which holding underpins judicial review of constitutionality, i.e. the meaning of the constitution — was wrongly decided, and two centuries of jurisprudence relying on it is thereby on shaky ground.

Arguments opposing originalism

1. Originalism leads to unsettling results. After decades of "The Living Constitution", people at large have grown used to using the shorthand "unconstitutional" for "socially unacceptable"; hence, laws banning sodomy were unacceptable, they must therefore be unconstitutional; executing minors is unacceptable, so it must therefore be unconstitutional. If an originalist approach is applied, one discovers that many things that are unacceptable are constitutional under that approach.
2. The large group of people who agreed to draft and ratify the Constitution didn't necessarily agree entirely on its intent. Indeed, it is not even clear just what group of people "counts" for purposes of intent. Is an originalist supposed to look at the intent of the drafters of the provision at issue? The act of drafting has no legislative significance. The act of voting (ratification) is the legislative act that creates the law. If intent is to matter at all, it should be the intent of the electorate that voted to ratify the provision which is taken into account, not a handful of drafters whose work, without the act of ratification, would mean nothing at all. ^[40]
3. It could be argued — as, for example, Justice Breyer has — that constitutions are meant to endure over time, and in order to do so, their interpretation must therefore be more flexible and responsive to changing circumstances than the amendment process is.
4. Originalism allows the "dead hand" of prior generations to control the outcome of important contemporary issues. ^[41]
5. The original intention or meaning of particular constitutional provisions can be understood at different levels of generality and the choice among such levels is arbitrary. For example, the US Constitution states "Representatives… shall be apportioned among the several States." Clearly at the time the document was written and ratified, the "several States" referred to were thirteen in number. If any new states in addition to these do not by definition comprise the "several States," why can't phrases like "cruel and unusual punishment" be changed deliberately? ^[42]
6. 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, Prof. 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, Template:Ussc-cite, 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, Template:Ussc-cite and Holder v. Hall, Template:Ussc-cite) ^[43]
7. It has been argued that Originalism would hold Brown v. Board of Education to be wrongly decided. ^[44]
8. Originalists of all stripes often argue that where the Constitution is silent, judges should not "read rights into" it. Rights implicating abortion, sex and sexual orientation equality, and capital punishment are often thus described as issues that the Constitution does not speak to, and hence should not be recognized by the judiciary. Yet, the Ninth Amendment, provides that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Original intent thus calls for 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. ^[45]
9. 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). Originalism, therefore, is hard work. Even Justice Scalia accepts this problem: "It's not always easy to figure out what the provision meant when it was adopted...I don't say [originalism] is perfect. I just say it's better than anything else." (Source)
10. The constitution often relies on broad and normative language that demands interpretation on our part and is thus inconsistent with an Originalist approach. For instance, in banning cruel and unusual punishment, we have to determine what acts counts as cruel. There is no reason to think that the framers have a priviledged position in making this determination. That is, while their ban on cruel punishment is binding on us, their understanding of the scope of the concept 'cruel' need not be.
11. Originalism can lead to extreme results. Paper money might well be unconstitutional. The original meaning of the due process clause would not support Incorporation of the Bill of Rights. Furthermore, a return to the original meaning of the Commerce Clause would likely require repudiation of the New Deal, Great Society, and the private discrimination provisions of the Civil Rights Act of 1964.

Footnotes

1. ^ Boyce, 33 Wake Forest L. Rev. 909
2. ^ Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204, p.204 (1980)
3. ^ Grey, Do We Have an Unwritten Constitution?, 27 Stan. L. Rev. 703, p.706 (1975)
4. ^ Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985)
5. ^ Bassham, Original Intent and the Constitution p.146 n.3 (1992)
6. ^ Saphire, Enough About Originalism, 15 N. KY. L. Rev. 513, p.515 n.7 (1988)
7. ^ Boyce, supra n.1, p.909 n.1
8. ^ Smith v. United States, 508 U.S. 223 (1993)
9. ^ Scalia, A Matter of Interpretation, ISBN 0691004005, Amy Guttman ed. 1997, at p.23.
10. ^ See, e.g., Powell, supra n.4
11. ^ See also, William Serwetman, Originalism At Work in Lopez: An Examination of the Recent Trend in Commerce Clause Jurisprudence
12. ^ See Scalia, supra n.9; see also, Scalia, Originalism: the Lesser Evil, 57 U. Cin. L. Rev. 849.
13. ^ See Bork, The Tempting of America: the Political Seducation of the Law.
14. ^ See Barnett, An Originalism for non-Originalists, 45 Loy. L. Rev. 611; Barnett, Restoring the Lost Constitution.
15. ^ Holmes, Collected Legal Papers, ISBN 0844612413, p.204
16. ^ See Scalia, A Theory of Constitution Interpretation, speech at Catholic University of America, 10/18/96
17. ^ Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857)
18. ^ Marbury v. Madison, 5 U.S. 137 at 176-177 (1803)
19. ^ Romer v. Evans, 517 U.S. 620 (1996)
20. ^ Scalia, Law & Language; First Things, Nov. 2005
21. ^ United States v. Darby, 312 U.S. 100 (1941)
22. ^ See, e.g., 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. New London, Docket No. 04-108 (2005).
23. ^ See Scalia, Constitutional Interpretation, speech at Woodrow Wilson International Center 3/14/05
24. ^ Trop v. Dulles, 356 U.S. 86 (1958)
25. ^ BMW v. Gore, 517 U.S. 559 (1996)
26. ^ Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
27. ^ Morrison v. Olson, 487 U.S. 654 (1988) at 703 (Scalia, J., dissenting)
28. ^ United States v. Fordice, 505 U.S. 717 (1992)
29. ^ Gonzales v. Raich, 545 US ___ (2005)
30. ^ Rebuttal: this argument simply assumes that the people approving the constitution desire that its meaning be held static. In thus presupposing the issue at hand, the argument begs the question. Furthermore, it would take further argument to show that the desires of the people approving the constitution, as opposed to the document itself, are binding on us.
31. ^ Atkins v. Virginia, 536 U.S. 304 (2002) (Scalia, J., dissenting)
32. ^ Scalia, supra n.23
33. ^ But for a countervailing argument, see BOYCE, supra, at pp.924-925 (arguing that "in short, stare decisis is fundamentally inconsistent with originalism"). The interplay between originalism and stare decisis is more thoroughly covered here.
34. ^ Rebuttal: this argument presents a false dichotomy in assuming that if one rejects originalism one is left with sheer arbitrariness. In fact, living documentarians believe in a middleground between these two extremes, holding that the meaning of the constitution does evolve over time, but that there are principles of reasonableness and decency constraining this evolution. Thus, they too are opposed to judicial arbitrariness.
35. ^ This argument was the "killer argument" which felled original intent, leading to the development of original understanding, a theory far less vulnerable to this criticism. See, Powell, supra n4. However, it is extremely important to keep in mind that this is an argument which applies only to Original intent, not to Originalism more broadly; almost no serious Originalist believes the original intent is even relevant, let alone authoritative. Consequentially, while this argument is an extremely cogent demolition of original intent, it succeeds only in "demolish[ing] a position that no one holds, one that is not only indefensible but undefended" (Bork, supra n.13, at pp.162-63).
36. ^ Rebuttal: the "dead hand" argument has several major flaws. Having a written constitution in the first place is allowing the "dead hand of previous generations" to control future outcomes. The principle of stare decisis is granting the "dead hand of previous generations" control over future decisions. Both are considered necessary sacrifices to the promote and maintain stability in the law. Furthermore, Originalism does not prevent change, as the "dead hand" argument contends - it merely rejects the Judicial system as the venue for that change. The people retain the ability to repudiate the "dead hand of previous generations" any time they so desire - through the amendment process, and through legislation.
37. ^ However, note that this provides a perfect example of Original Meaning; at the time of ratification, "the several States" meant "all the States". Time has blurred the meaning of the words, but we can look to contemporaneous sources to see how that phrase was used, and we can look, for example, to the act of the Continental Congress (see Federalist 40) endorsing the Philadelphia Convention, which called for the Convention to transmit its results to "the Congress and the several legislatures". Recall that under the Articles of Confederation, unanimous consent of the State legislatures was required, and it becomes clear that "several" meant "all".
38. ^ Rebuttal: even assuming, for the sake of argument, that these are fair comparisons, the willingness of some practitioners of a theory to subordinate their usual practice to their political preferences, when faced with an unpalatable result were that practise applied, is no commentary on - still less a repudiation of - that practise or its theoretical underpinnings. [46] For example, compare (non-Originalist) Justice Kennedy's abandonment of the standard he unhesitatingly signed onto in Morrison and Lopez, when confronted in Raich with a situation where the application of that standard would lead to a result that his "zero tolerance" view on drugs could not contain. [47]
39. ^ Original intent demands a rejection of Brown. See Raoul Berger, Government by Judiciary, ch.7. But original intent has been rejected by most originalists since the mid-1980s (see comments from Scalia, ante), and opponents of Originalism who wield this charge are manfacturing a straw man; the position they demolish "is not only undefendable, but undefended": Originalism as used today almost invariably means original meaning or original understanding, and never original intent. It is far from clear that this originalism even permits - still less requires - a repudiation of Brown. For example, Judge Bork noted in the opening statement of his Senate Confirmation Hearings, "Brown, delivered with the authority of a unanimous Court, was clearly correct and represents perhaps the greatest moral achievement of our constitutional law." However, such a distinction undercuts some of the philosophical backing of Originalism.[48] See also, Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990) (Scalia, J., Dissenting) at 95-96 n1; Edward Whelan, Brown and Originalism: There’s more than one way to get it right; Robert Bork, The Tempting of America, at pp.81-82; Akhil Amar, Foreword: The Document and the Doctrine, 114 HARV. L. REV. 26 at 55-78; Michael McConnell, Originalism and the Desegregation Decisions, 81 U. VA. L. REV. 947 (1995); Randy Barnett, Trumping Precedent with Original Meaning: Not as Radical as It Sounds, Boston Univ. School of Law Working Paper No. 05-08.
40. ^ However, the argument that the ninth amendment is violated by declining to read federally protected rights into it is circular, to say the least. See Justice Scalia's dissent in Troxel v. Granville, 530 U.S. 57 (2000), for an originalist (i.e., original meaning) discussion of the 9th amendment; cf. Roger Pilon, How Constitutional Corruption Has Led to Ideological Litmus Tests for Judicial Nominees at pp.14-15 for counter-argument.
41. ^ Writing for the court in Griswold v. Connecticut, 381 U.S. 479 (1965), Justice Douglas noted "We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions"; as was the Warren Court's habit in opinions, the Court declared that it deprecated courts undertaking precisely the action it was about to take.
42. ^ See Kyllo v. United States, 533 U.S. 27 (2001)

See also

• Constitution in exile
• Living Constitution
• Strict constructionism
• Legal formalism

External links

• Justice Scalia lecture at CUA, discussing originalism (1996)
• Justice Scalia lecture at Woodrow Wilson Center, comparing and contrasting originalism from the "living constitution" approach (2005)
• Legal Theory Lexicon entry on Originalism
• Originalism: The Lesser Evil, by Antonin Scalia (57 U. Cin. L. Rev. 849)
• An Originalism for Nonoriginalists, by Randy Barnett
• "Original Intent and Purpose of the Second Amendment" GunCite.com
• "Original Intent and The Free Exercise of Religion" Joseph A. Zavaletta, Jr., Esq
• "Constitutional Issues of Taxation" Original Intent.org
• Trumping Precedent with Original Meaning: Not as Radical as It Sounds, by Randy Barnett
• The Founders Constitution Founding-era materials