ORIGINALISM
In the context of United States law, originalism is a theory of constitutional interpretation that asserts that all statements in the Constitution must be interpreted based on the original understanding.[1]
This concept views the Constitution as stable from the time of enactment and that the meaning of its contents can be changed only by the steps set out in Article Five.[2]
This notion stands in contrast to the concept of the Living Constitution, which asserts that the Constitution should be interpreted based on the context of current times, even if such interpretation is different from the original interpretations of the document.[3][4]
Originalism should not be confused with strict constructionism.[5]
The idea that judicial review was distinguished from ordinary political process by the application of principles grew to be understood as fundamental to the legitimacy of judicial interpretation.[6]
Proponents of originalism argue that originalism was the primary method of legal interpretation in America from the time of its founding until the time of the New Deal, when competing theories of interpretation grew in prominence.[7][8][9]
Critics of originalism argue that its appeal in modern times is rooted in conservative political resistance to the Brown v. Board of Education Supreme Court decision and opposition to some civil rights legislation.[10]
"Originalism" can refer to original intent or original meaning.
The divisions between the theories relate to what exactly that identifiable original intent or original meaning is: the intentions of the authors or the ratifiers, the original meaning of the text, a combination of the two, or the original meaning of the text but not its expected application.
Forms
[Constitutional law of the United States](https://en.wikipedia.org/wiki/Constitutional_law_of_the_United_States "Constitutional law of the United States") |
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Originalism is an umbrella term for interpretative methods that hold to the "fixation thesis", the notion that an utterance's semantic content is fixed at the time it is uttered.[11]
Two alternative understandings about the sources of meaning have been proposed:
- The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what those who drafted and ratified it intended the meaning to be. This view has become largely depreciated among 21st century originalists. Alfred Avins and Raoul Berger (author of Government by Judiciary) were proponents of this view.
- The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text to be. Antonin Scalia was a proponent of this view, as are Clarence Thomas and Amy Coney Barrett.[12]
As a school of legal thought, originalism can be traced to Robert Bork's "Neutral Principles and Some First Amendment Problems", published in the Indiana Law Journal in January 1971.[13]
However, it was not until the 1980s, when conservative jurists began to take seats on the Supreme Court, that the debate really began in earnest.
"Old originalism" focused primarily on "intent", mostly by default.
But that line was largely abandoned in the early 1990s; as "new originalism" emerged, most adherents subscribed to "original meaning" originalism, though there are some intentionalists within new originalism.