Originalism
Originalism in constitutional interpretation is the view that the meaning of a written constitution is (or should be) consistent with the meaning as it was originally understood by those who drafted and/or ratified the constitution. Originalism is especially prominent in connection with controversies over the interpretation of the United States Constitution.
In ordinary law as well as Constitutional law, an Originalism interpretation (also known as "Original Intent") method entails reading and applying the laws with the same intent as when written - with no "updates" or "new views" taken into account for "the times".
Under this method, even when a judge sees an issue that he's 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.
One consequence of such a system of legal interpretation is that a variety of laws might have to be kept more up to date than otherwise might been done. This would be so because under an Original Intent decision system, judges would rarely if ever, sufficiently change a law so as to "stretch it" to cover circumstances not in vogue when the law was written.
As a result, lawmakers would need to step forward and make those laws they saw fit to remedy any legislatively caused injustices or gaps in the law, rather than leaving this to the courts.
Varieties of Originalism
Originalism is actually a family of related views. One form of originalism emphasizes the original intentions of those who drafted the constitution. In the American context, this would be the group of "Founding Fathers" that drafted the United States Constitution at the constitutional convention in Philadelphia. Another form of originalism emphasizes the original meaning of the constitution as it would have been understood by ordinary citizens in the historical period during which the constitution was proposed, ratified, and first implemented. Some originalists emphasize the original intention with respect to particular practices, while others focus on general principles.
The Case for Originalism
Many different arguments have been made for originalism. Among them are the following:
- Originalism is the best alternative to unfettered discretion by judges to inject their own values into a written constitution.
- Originalism is required by the principle of popular sovereignty in constitutional orders where a written constitution is approved by the people.
- Originalism serves the rule of law values of predictablility and certainty of constitutional meaning.
- Interpreting The Constitution on an "Original Intent" basis, does not lock Americans into rigid rules from the past as there is a mechanism available to make Constitutional changes if the people desire that.
Criticisms of Originalism
Originalism in its various forms has been criticized in a variety of ways. Among the important criticisms are the following:
- There is no original intent for a constitution that was drafted and ratified by many different persons with different intentions.
- Constitutions are meant to endure over time, and their interpretation must be flexible and responsive to changing circumstances.
- 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.
Related Entries
Links
- GunCite.com
- Joseph A. Zavaletta, Jr., Esq
- Original Intent.org
