Originalism in constitutional interpretation jeffrey. The idea that originalism is a uniquely modern and american approach to constitutional interpretation is false. It is simply the sole legitimate method for deciding questions at level 2 in the. Originalism is a theory of the interpretation of legal texts, including the text of the constitution. Constitutional interpretation and a theory of evolutionary originalism. Constitutional redemption,2 is an extraordinary achievement that secures his position in the front rank of american constitutional theorists. Originalism represents only one, or actually only several, types of historical arguments used to interpret the constitution or to explain constitutional conclusions. Every text needs a framework for interpretation, and the us constitution is no different. Various other theories of constitutional interpretation seem to diverge from originalism when reference is made to documents or sources outside of these original documents.
This chapter sketches a typology of approaches to constitutional interpretation or sources of constitutional meaning. Constitution, the um constitution day speaker said. Originalism our topic is the relationship between originalism and extratextual. That question leads to others, including questions about the various forms and variations of originalism and living constitutionalism. Originalist constitutional theories answer the first foundational question of interpretation broadly in this way. Before we worry about whether originalism is in principle the right approach to constitutional interpretation, we have to consider a variety of arguments about whether it can work in practice. A constitution, like any other law, necessarily has a meaning, which pre.
With hearings on a supreme court nomination upcoming, i believe it will be useful to discuss the major dispute that is said to divide the two major schools of constitutional interpretation. Ultimately solums approach to semantic originalism comes closer to mirroring the practice of searching for illocutionary intent than dworkins abstracted and normatively infused semantic. Constitutional interpretation is the activity that discovers the communicative content or linguistic meaning of the constitutional text. Ninth amendment, constitution, constitutional law, originalism, originalist models of the ninth amendment, individual natural rights model, federalism model, state law rights model, collective rights model. Originalism in constitutional interpretation, 60 was published in an. Originalism is a force to be reckoned with in constitutional interpretation. If so, we might do better to abandon the attempt to create a theory of constitutional interpretation, and get on with the business of actually interpreting the constitution. In cheatle v r, decided two years before mcginty was argued, the high court. Whittington t he argument that original meaning should guide constitutional interpretation is nearly as old as the constitution itself.
Originalist values and constitutional interpretation. Originalism in constitutional interpretation jeffrey goldsworthy our duty is to declare the law as enacted in the constitution and not to add to its provisions new doctrines which mayhappento conformto ourownprepossessions. Before there were strict constructionists, before there were judicial activists, there were originalists. The debate over originalism professor jeremy rabkin antonin scalia law school, g. The center for the study of constitutional originalism at the university of san diego school of law defines it. There will be some consideration of prominent criticisms of originalism, but the class will mostly focus on the internal developments and debates within the originalism literature. Importantly, scalias vision of original understanding originalism is. To be sure, ones constitutional theory cannot help but influence ones constitutional interpretation in the face of textual ambiguity. In order to make progress in the debates about originalism, we will need to map the theoretical space, identifying the ways in which different versions of originalism vary and the ways in. The core of the great debate is substantive and addresses the normative question, what is the best theory of constitutional interpretation and construction. Constitutional construction is the activity that determines the legal effect given the text, including doctrines of constitutional law and decisions of constitutional cases or issues by judges and other officials. Part iv will then examine particular extratextual sources from an originalist perspective. Jun 23, 2009 types of originalism include strict interpretation and strict constructionism.
A theory of constitutional rights download ebook pdf, epub. Original meaning and its limits justice scalia has prominently defended a version of originalism that demands adherence to the constitution s original meaning and, moreover, construes the original meaning of valueladen language, such as unreasonable and cruel, by reference to the applications it. Is originalism the best method of constitutional interpretation. Before one can reject originalism, one must find another criterion for determining the meaning of a provision, lest the opinion of this court so obviously upon. Supreme court justice antonin scalia is one of the leading proponents of originalism as a theory of constitutional interpretation. Aug 09, 20 constitutional interpretation is the activity that discovers the communicative content or linguistic meaning of the constitutional text. Originalism and the good constitution download pdf. Originalism and constitutional construction scholarship. Textualism and originalism in constitutional interp retation supreme court justice nominee neil gorsuch right meets with sen.
Siegel we should find the lost second amendment, broaden its scope and determine that it affords the right to arm a state militia and also the right of the individual to keep and bear arms. If originalism can surmount the intertemporal hurdle, as many believe it can, whatever remaining defects it might have as a mode of constitutional interpretation would not derive from the fact that the constitutional conventions were not racially inclusive. Originalists believe that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law. Thus, originalism is not, and could never be, the sole legitimate method of constitutional interpretation. To date, most of the justifications for consulting contemporary international law in constitutional interpretation have been external to the originalist framework. Everybody, at least purported to be an originalist. Originalism as popular constitutionalism in heller reva b. If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. The amendment process is too difficult and cannot be relied upon to save us. Originalism vs living constitution philosophy of law.
Non originalism allows judges to head off the crises that could result from the inflexible interpretation of a provision in the constitution that no longer serves its original purpose. The originalist interpretation can be further divided into two schools, intent and meaning. Selected theories of constitutional interpretation congressional research service 1 introduction the united states constitution, as amended, is a complex legal document which sets out the structure of the federal government, the legal authorities of that government and, to a lesser. Originalism summer seminar georgetown center for the. Kay, richard, originalist values and constitutional interpretation 1996. Using originalism 3 originalism has become a moving target. Through lectures by the nations preeminent originalist scholars and litigators, luncheon discussions, and visits to the united states supreme court, the originalism summer seminara boot camp on the theory and practice of originalismexposes elite law students and recent graduates to stateoftheart originalism and alternative approaches to. This obvious difference should, in principle, have no effect on constitutional interpretation generally or on the mechanics of originalism in particular, but it is likely to diminish the role of the reconstruction era within a persuasive account of american ethos. In essence, i shall seek to argue that originalism, as articulated by jurists such as robert bork and antonin scalia, represents the most appropriate judicial philosophy as it relates to interpreting questions stemming from the united states constitution, most notably. Originalism definition is a legal philosophy that the words in documents and especially the u. The constitutional principle is judicial restraint.
Hodges, regarding the fundamental right to marry, provides a useful lens through which to view the differences between originalist and nonoriginalist views of the u. Constitution to help inform constitutional doctrine is sometimes referred to as originalism. The question i propose to debate here is simply this. Selfgovernment and the jurisprudence of originalism keith e. Original meaning and its limits justice scalia has prominently defended a version of originalism that demands adherence to the constitutions original meaning and, moreover, construes the original meaning of valueladen language, such as unreasonable and cruel, by reference to the applications it. Constitutional interpretation is problematic because it can be difficult to distinguish legitimate interpretation from illegitimate change. Prof aeon skoble looks at two popular approaches to interpret one. The legitimacy of particular conceptions of constitutional. This insight animates what many have begun to call the positive turn in originalism. Segall offers a thoughtful, rigorous, and persuasive critique of originalism as a method of constitutional interpretation that demonstrates that it is ahistorical, internally inconsistent, and often violated by those who purport to employ it.
Before one can reject originalism, one must find another criterion for determining the meaning of a provision, lest the opinion of this court rest so obviously upon nothing however the personal views of its members. The traditional approach of common law courts to the interpretation of statutes was originalist, and it has been applied by the high court of australia to the interpretation of the australian constitution. Approaches to constitutional interpretation oxford scholarship. Why originalism is the best approach to the constitution. The doctrine of originalism holds that judicial interpretation is best informed by adhering to the original intent or understanding of the framers of the law. Justice neil gorsuch explains why originalism is the best approach to understanding the u. Jul 23, 2005 with hearings on a supreme court nomination upcoming, i believe it will be useful to discuss the major dispute that is said to divide the two major schools of constitutional interpretation, origina. Theories of constitutional interpretation modern democracy invites us to replace the notion of a regime founded upon laws, of a legitimate power, by the notion of a regime founded upon the legitimacy of a debate as to what is legitimate and what is illegitimatea debate which is necessarily without any guarantor and without any end. Neil gorsuch, antonin scalia and originalism, explained. The originalist perspective the heritage guide to the. Originalism deters judges from unfettered discretion to inject their personal values into constitutional interpretation. Indeed, so wedded is the new originalism to the constitutional text that some leading new originalists have.
The role of intentions in constitutional interpretation, 62 rev. Originalism definition of originalism by merriamwebster. Constitutional interpretation the old fashioned way justice antonin scalia delivered the following remarks at the woodrow wilson international center for scholars in washington, d. Those that follow original intent would interpret an action based on how the constitutional framers would have wanted and reacted. The distinction depends largely on what a constitution is. Enduring originalism by jeffrey pojanowski and kevin c. In those works, balkin develops a constitutional theory he identifies alternatively as living originalism and as framework originalism. Originalism and constitutional construction by lawrence b. Yet originalism is a theory of constitutional interpretation, and as such it is notnor can it bea constitutional theory in itself. Although it is a minority view now, the reality is that, not very long ago, originalism was orthodoxy. Berman the university of texas at austin abstract debates over the proper theory of, or approach to, constitutional interpretation rage through many western. A constitution, like any other law, necessarily has a meaning, which preexists judicial interpretation.
The reagan administration invited public debate over judicial philosophy, and the administration controversially committed itself to the search for. Some even characterize originalism as the exclusive historical approach. Constitutional law scholar paul brest, the former dean of stanford law school, is thought to have. Originalism is attractive to many of its proponents precisely because and to the degree that it binds interpretation to a fixed and knowable set of meanings, so as to impede the indeterminacy and opportunity associated with opentextured constitutional construction.
Justice gorsuch on why originalism is the way to understand the constitution. Followers of originalism believe that the constitution should be interpreted at the time that the framers drafted the document. In order to make progress in the debates about originalism, we will need to map the theoretical space, identifying the ways in which different versions of originalism vary and the ways in which they resemble one another. If originalism can surmount the intertemporal hurdle, as many believe it can, whatever remaining defects it might have as a mode of constitutional interpretation would not derive. At one time a monolithic theory of constitutional interpretation, contemporary originalism has developed into a sophisticated family of theories about how to interpret and reason with a constitution. It may be, for example, that the original understanding of some or all of the constitution is unknowable. Originalism represents the best method of constitutional. In the context of united states law, originalism is a concept regarding the interpretation of the constitution that asserts that all statements in the constitution must be interpreted based on the original understanding of the authors or the people at the time it was ratified.
Debates over the proper theory of, or approach to, constitutional interpretation rage through many western constitutional democracies. Smith, and the participants at the new originalism in constitutional law symposium held. Defenses of originalism in this vein are positive in that they are based on the status of the constitution, and constitutional law, as positive law. Those two words are now so loaded with politics that theyve lost meaning and arent very useful in a constitutional conversation. Your use of this heinonline pdf indicates your acceptance. Textualism and originalism in constitutional interpretation supreme court justice nominee neil gorsuch right meets with sen. For an extended excerpt from justice scalias originalism, the lesser evil, click here. This conclusion carries consequences for debates about the role of the public in shaping constitutional meaning and in influencing judicial decisionmaking.
Despite the seeming handicap of being a hypo thetical construct assembled by lawyers rather than a fleshand blood person, he for most of western legal history or she in. Constitutional interpretation scalia boston college. Our manner of interpreting the constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people. This article originated as a paper presented at the workshop on legal interpretation, organised by the social and political theory group, research school of social sciences, australian national university, on september 12, 1996.
A mistrial david boersema pacific university abstract judicial interpretation is fundamental to the nature and working of law. Opinion the problems with originalism the new york times. Constitution should be interpreted as they were understood at the time they were written. Originalism as a legal enterprise gary lawson guy seidman the reasonable person is an important and ubiquitous fig ure in the law. Originalism as faith kindle edition by segall, eric j. May 27, 2011 after specifying what originalism maintains, and what objections it encounters, the essay sketches some of the more prominent non. If you go back and read the commentaries on the constitution by joseph story, he didnt think the constitution evolved or changed. Originalism and the possibility of constitutional redemption. There is a family of originalist constitutional theories. Whereas textualist approaches to constitutional interpretation focus solely on.
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