| Judicial Interpretation |
|---|
| Forms |
| Constitutional interpretation Statutory interpretation |
| General Rules of Interpretation |
| Plain meaning rule · Mischief rule · Golden rule |
| General Theories of Interpretation |
| Living Constitution/Living tree doctrine Originalism (Original meaning) Original intent (Legislative intent · Legislative history) Strict constructionism Textualism |
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws (which is the realm of the legislative branch) but only to uphold them. The term is a neologism, and the concept is a formalist theory of law and a corollary of textualism.
Today, originalism is popular among political conservatives in the U.S., and is most prominently associated with Antonin Scalia, Clarence Thomas and Robert Bork. However, some liberals, such as Justice Hugo Black and Akhil Amar, have also subscribed to the theory.[1]
Originalism is a family of theories, principally:
Both of these theories share the view that there is an authority, contemporaneous with a constitution's or statute's ratification, which should govern its interpretation; the divisions relate to what exactly that authority is: the intentions of the authors or the ratifiers, or the original meaning of the text.
The primary alternative to originalism is most commonly described as the Living Constitution; this is the theory that the Constitution was written in flexible terms whose meaning is dynamic.
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Bret 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. 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, for example, John Hart Ely, Democracy and Distrust: a Theory of Judicial Review ("interpretivism"); Thomas Grey, Do We Have an Unwritten Constitution? ("interpretive model"); H. Jefferson Powell, The Original Understanding of Original Intent ("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; Richard B. Saphire, Enough About Originalism.[2]
It is often asserted that "Originalism" is synonymous with "strict constructionism."[3][4][5][6]
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, 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).[7] 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."[8]
Originalism is a theory of interpretation, not construction.[9] 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, 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 by virtue of being the other.
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 interpret that clause to mean that the specific punishments mentioned above were unconstitutional, but that other forms of capital punishment were permissible. 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. An 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.
The paragraph above does not give examples of Original intent vis a vis Original meaning. Using the former, the Judge would look for the letters and journals of the Founders on the subject of capital punishment. If he found that a majority expressed an aversion to it, the interpretation would be averse to capital punishment. Using Original meaning the Judge would look for the frequency of each contemporaneous form of capital punishment. If any form other than those listed was extremely rare, the decision could be averse to all capital punishment. If another form, not listed, was not rare, the decision would have to be in favor of capital punishment because reasonable persons in 1793 would so interpret the clause.
Originalism is actually a family of related views.
The "original form of originalism" was known as intentionalism, or "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. The intentionalist methodology involves studying the writings of its authors, or the records of the Philadelphia Convention, 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.[10]
However, a number of problems inherent in intentionalism, and a fortiori when that theory is applied to the Constitution: most of the Founders did not leave 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. The theory was challenged in a string of Law review articles attacking Robert Bork and the intentionalist process,[11] prior to his 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.[12]
In response to this, a different strain of originalism, articulated by (among others) Antonin Scalia,[13] Robert Bork,[14] and Randy Barnett,[15] 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."[16] 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 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 out what particular terms meant. See Methodology, 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.[17]
Though there may be no 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 to illustrate the importance of the difference between original intent and original understanding is to use 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 would ask what the framers understood the amendment to mean when it was written; an original meaning inquiry would ask what the plain 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. For example, 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. Those who deny semantic-originalism often retort either by invoking legal positivism or by arguing that, if it became a widely adopted jurisprudential theory, semantic-originalism would make it difficult to determine exactly what the law is at any given time, and thereby make the pandect ex post facto in effect.
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:
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 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."[18]
Dissenting in Romer v. Evans, 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 Steven D Smith's book Law's Quandary, 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.[19]
In Marbury, Chief Justice 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[20] 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"; Justice Scalia has inveighed that "the worst thing about the living constitution is that it will destroy the constitution."[21]
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.
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 do not apply to other Originalist theories.
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 but instead 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, for example, Justice Scalia's dissents in Roper v. Simmons or Romer), and sometimes it yields results that do not (see, for example, Justice Scalia's dissents in BMW v. Gore or Hamdi v. Rumsfeld).
Originalism is a means of constitutional interpretation, not constitutional construction; whenever "to describe [a] case is not to decide it,"[22] 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, for example, United States v. Fordice; McIntyre; Hamdi, Gonzales v. Raich; National Cable & Telecommunications Assn. v. Brand X Internet Services. According to an article in The New Republic, although Scalia admits that Thomas "is really the only justice whose basic approach to the law is the same as mine", the author 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."
Note that several of the arguments for and against Originalism should be read in conjunction with alternative views and rebuttals, presented in footnotes.