Other Definitions
originalism (dict)
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OriginalismOriginalism in constitutional interpretation is the view that the interpretation of a written constitution is (or should be) consistent with what it was originally understood to mean by those who drafted and/or ratified it. Originalism is especially prominent in connection with controversies over the interpretation of the United States Constitution. The key to originalism is that interpretive decisions are made based on facts about the document when it was originally written or ratified, with minimal adjustments for the time or context in which it is interpreted. Under this method, even when a judge sees an issue that he is persuaded ought to be ameliorated somehow, if the law as written and interpreted in the light of its original intent does not support the end result sought, a ruling supporting that result is not granted. See also: strict constructionism Forms of originalism Originalism is actually a family of related views. One popular form of originalism (used for ordinary law as well as constitutional law), called "original intent", entails applying laws based on the intent of its authors. For instance, the authors of the US Constitution would be the group of "Founding Fathers" that drafted it. Applying this form involves studying the writings of its authors for clues as to their intent. Another form of originalism, called "original meaning", emphasizes how the text would have been understood by ordinary citizens in the historical period during which the constitution was proposed, ratified, and first implemented. Randy Barnett argues for this view in his book Restoring the Lost Constitution. Applying this form involves studying dictionaries and other writings of the time to find out what particular terms meant. For example, 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."http://www.townhall.com/columnists/thomassowell/ts20041110.shtml Arguments favoring originalism - Originalism prevents judges from gaining unfettered discretion to inject their personal values into a written constitution.
- Since the Constitution is approved by the authority of the people, originalism is required to maintain their sovereignty.
- Originalism helps ensure predictability and protects against arbitrary changes in the interpreted meaning of constitution.
- If a people wish to deliberately alter their constitution, the very means to do so is officially provided for within constitutions such as that of the United States (e.g. through amendments).
- 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
Arguments opposing originalism - The Founding Fathers were not originalists. Why would you try to follow their views knowing this?
- The large group of people who agreed to draft and ratify the constitution didn't agree entirely on its intent.
- Constitutions are meant to endure over time and their interpretation must be more flexible and responsive to changing circumstances than the amendment process is.
- Originalism allows the "dead hand" of prior generations to control the outcome of important contemporary issues.
- 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?
Possible consequences One possible consequence of such a strict system of legal interpretation is that legislators would need to be more responsible, and exert more of an effort to keep a variety of laws up to date than might otherwise be necessary; Whereas more leeway would allow judges more legislative power, thus taking some of the load off of the actual legislatures. Under an original intent decision system, judges would rarely, if ever, "stretch" laws so as to cover circumstances not theretofore percieved or provided for by the proper legislatures. Thus, rather than leaving such deficiencies to the courts to fix, lawmakers would need to step forward and take responsibility to amend any laws brought to their attention that cause injustices or contain gaps. If originalism were to win widespread acceptance, another possible consequence would be an end to politicization of judicial appointments. Conversely, if judges were regarded as unchallengeable lawmakers who determine the meaning of the Constitution for today, then politicians would try to ensure that judges chosen reflect their own views on what the laws should mean. External links
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