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Originalism is a method of constitutional and statutory interpretation. Most Originalists assert that legal text should be interpreted based on the original understanding at the time of adoption, while some also incorporate original intent. Originalists object to the idea of Judicial activism and other significant legal evolution being driven by judges misusing (to them) the common law framework. Instead, Originalists argue for democratic modifications of laws through the Legislature or through Constitutional amendment. [1]
The term was coined in 1980 and the concept became popular in U.S. conservative legal circles by the 1990s. Originalism nevertheless remains particularly unpopular in many democracies, with the ideology only gaining traction in the West in the United States and, to a lesser extent, Australia. [2] David Fontana argues in the Texas Law Review that originalism has more adherents in countries that underwent revolutions, especially those in Latin America and Africa. [3] Critics of originalism often turn to the competing concept of the Living Constitution, which asserts that a constitution should evolve and be interpreted based on the context of current times. [4] [5]
"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. Originalism should not be confused with strict constructionism. [6]
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. [7] 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. [8] [9] [10]
Critics of originalism argue it is a new concept, with Ruth Marcus crediting Robert Bork's 1971 article "Neutral Principles and Some First Amendment Problems" as its first manifestation. [11] [12] [13] The term "originalism" was coined by liberal critic Paul Brest in 1980. [13] [14] It was not until the 1980s, when conservative jurists began to take seats on the Supreme Court, that the debate really began in earnest with the 1990s seeing originalism becoming a broadly endorsed view in the conservative legal movement. [13] The Department of Justice under the Ronald Reagan administration played an important role in lending legitimacy to originalism in the 1980s. [15] [16] [17]
The first modern originalist on the Supreme Court was Justice Scalia, followed by Thomas and Alito. President Trump's appointees are seen to mostly follow originalism. [13]
In May 2024, conservative justices on the Supreme Court are reported to be considering new alternative interpretations of originalism. [18]
Originalism has influenced many areas of law in the United States.[ citation needed ] The Seventh Amendment to the United States Constitution [19] and the Second Amendment to the United States Constitution have been subject to originalist interpretations in some major cases. [20] [21]
There are different forms of Originalism, including those which focus on the original meaning of the Constitution.[ citation needed ] Justice Scalia, Originalism's chief architect, [22] defined himself as believing in original meaning:
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. [23]
Neil Gorsuch argued in 2019 that originalism constrains judges to act as neutral arbiters by having judges set aside their policy preferences when ruling, and that through this judicial restraint and opposition to judicial activism, originalists uphold democracy. [24] Gorsuch claims that cases like Dred Scott and Korematsu cannot be defended when examining the Constitution's original meaning. [24] Segregationist Sam Ervin was an early proponent of originalism as he used the theory to argue in opposition to civil rights legislation during the 1960s. [25] According to University of Toledo law professor Lee J. Strang, early versions of originalism ("not the sophisticated, more-fully explicated originalism of today") were used at the Founding up until the 1930s. [8]
Calvin Terbeek argues that originalism's 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. [26]
Supreme Court Justice Elena Kagan, a frequent critic of conservative originalism, argues that some aspects of the constitution were intentionally broad and vague to allow for future generations to interpret them along with the times. [27]
Michael Waldman argues that originalism is a new concept, and not one espoused by the founders. [11] He also criticizes conservatives as embracing originalism because it was conservative, not embracing conservatism because it was originalist. [13]
According to a 2021 paper in the Columbia Law Review, the Founding Fathers did not include a nondelegation doctrine in the Constitution and saw nothing wrong with delegations as a matter of legal theory, contrary to the claims of some originalists. [28]
Ruth Marcus wonders why we should keep the original meaning as fixed when the U.S. was in an agrarian economy where black people were enslaved and women treated like chattel. She argues that the Constitution was written with the understanding that it would apply to circumstances not yet forseen, and with language flexible enough to accommodate them. [13]
Jamal Greene argues that originalism is remarkably unpopular outside the United States (including Canada, South Africa, India, Israel, and most of Europe), where minimalism or textualism are the recommended responses to judicial activism. [29]
Justice William J. Brennan Jr. described originalism as "arrogance cloaked as humility" [30] during a 1985 speech at Georgetown University. In this speech, he also stated “It is arrogant to pretend that from our vantage we can gauge accurately the intent of the framers", and that politicians that claim to do so are motivated purely by political reasons, as they “have no familiarity with the historical record."
Many Originalists reject any consideration of International law (with an exception for British law before 1791).[ citation needed ] Justice Scalia, echoing Chief Justice John Marshall in Marbury v. Madison, wrote that "We must never forget that it is a Constitution for the United States of America that we are expounding. . . . Where there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution." [31]
Antonin Scalia differentiated 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). [32] Scalia averred that he was "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". [33]
Legal scholar Randy Barnett asserts that originalism is a theory of interpretation and that constructionism is only appropriate when diving the original intent proves difficult. [34]
Declarationism is a legal philosophy that incorporates the United States Declaration of Independence into the body of case law on level with the United States Constitution. It holds that the Declaration is a natural law document and so that natural law has a place within American jurisprudence. [35] Harry V. Jaffa and Clarence Thomas have been cited as proponents of this school of thought. [35]
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that turn on questions of U.S. constitutional or federal law. It also has original jurisdiction over a narrow range of cases, specifically "all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." The court holds the power of judicial review: the ability to invalidate a statute for violating a provision of the Constitution. It is also able to strike down presidential directives for violating either the Constitution or statutory law.
The Federalist Society for Law and Public Policy Studies (FedSoc) is an American conservative and libertarian legal organization that advocates for a textualist and originalist interpretation of the U.S. Constitution. Headquartered in Washington, D.C., it has chapters at more than 200 law schools and features student, lawyer, and faculty divisions; the lawyers division comprises more than 70,000 practicing attorneys in ninety cities. Through speaking events, lectures, and other activities, it provides a forum for legal experts of opposing conservative views to interact with members of the legal profession, the judiciary, and the legal academy. It is one of the most influential legal organizations in the United States.
Antonin Gregory Scalia was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectual anchor for the originalist and textualist position in the U.S. Supreme Court's conservative wing. For catalyzing an originalist and textualist movement in American law, he has been described as one of the most influential jurists of the twentieth century, and one of the most important justices in the history of the Supreme Court. Scalia was posthumously awarded the Presidential Medal of Freedom in 2018, and the Antonin Scalia Law School at George Mason University was named in his honor.
Randy Evan Barnett is an American legal scholar. He serves as the Patrick Hotung Professor of Constitutional Law at Georgetown University, where he teaches constitutional law and contracts, and is the director of the Georgetown Center for the Constitution.
Legal formalism is both a descriptive theory and a normative theory of how judges should decide cases. In its descriptive sense, formalists maintain that judges reach their decisions by applying uncontroversial principles to the facts; formalists believe that there is an underlying logic to the many legal principles that may be applied in different cases. These principles, they claim, are straightforward and can be readily discovered by anyone with some legal expertise. Supreme Court Justice Oliver Wendell Holmes Jr., by contrast, believed that "The life of the law has not been logic: it has been experience". The formalist era is generally viewed as having existed from the 1870s to the 1920s, but some scholars deny that legal formalism ever existed in practice.
In the United States, strict constructionism is a particular legal philosophy of judicial interpretation that limits or restricts the powers of the federal government only to those expressly, i.e., explicitly and clearly, granted to the government by the United States constitution. While commonly confused with textualism or originalism, they are not the same, and in fact frequently contradict, as textualists like Antonin Scalia have noted.
Substantive due process is a principle in United States constitutional law that allows courts to establish and protect substantive laws and certain fundamental rights from government interference, even if they are unenumerated elsewhere in the U.S. Constitution. Courts have asserted that such protections come from the due process clauses of the Fifth and Fourteenth amendments to the U.S. Constitution, which prohibit the federal and state governments, respectively, from depriving any person of "life, liberty, or property, without due process of law". Substantive due process demarks the line between those acts that courts hold to be subject to government regulation or legislation and those that courts place beyond the reach of governmental interference. Whether the Fifth or Fourteenth Amendments were intended to serve that function continues to be a matter of scholarly as well as judicial discussion and dissent. In 2022, Justice Clarence Thomas called on the Supreme Court to reconsider all of its rulings that were based on substantive due process.
A Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibit the deprivation of "life, liberty, or property" by the federal and state governments, respectively, without due process of law.
Constitution in Exile is a controversial term that refers to the situation resulting from provisions of the United States Constitution allegedly not having been enforced according to their "original intent" or "original meaning". Some originalists might argue, for example, that the Commerce Clause and Necessary and Proper Clause do not authorize economic legislation dating all the way back to the New Deal.
Original intent is a theory in law concerning constitutional and statutory interpretation. It is frequently used as a synonym for originalism; while original intent is one theory in the originalist family, it has some salient differences which has led originalists from more predominant schools of thought such as original meaning to distinguish original intent as much as legal realists do.
The Living Constitution, or judicial pragmatism, is the viewpoint that the U.S. constitution holds a dynamic meaning even if the document is not formally amended. The Constitution is said to develop alongside society's needs and provide a more malleable tool for governments. The idea is associated with views that contemporary society should be considered in the constitutional interpretation of phrases. The Constitution is referred to as the living law of the land as it is transformed according to necessities of the time and the situation. Some supporters of the living method of interpretation, such as professors Michael Kammen and Bruce Ackerman, refer to themselves as organists.
Textualism is a formalist theory in which the interpretation of the law is based exclusively on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law.
Judicial minimalism refers to a philosophy in United States constitutional law which promotes itself as a politically moderate viewpoint such as that of retired Judge Sandra Day O'Connor. It is often compared to other judicial philosophies such as judicial activism, judicial originalism, and judicial textualism. Judicial minimalism takes its approach from a limited method of decision-making conceived by Edmund Burke.
The Roberts Court is the time since 2005 during which the Supreme Court of the United States has been led by John Roberts as Chief Justice. Roberts succeeded William Rehnquist as Chief Justice after Rehnquist's death.
Thomas Rex Lee is a former American jurist who was a justice of the Utah Supreme Court from 2010 to 2022. Lee is also a lecturer on law at Harvard Law School and an adjunct professor/distinguished lecturer at Brigham Young University's (BYU) J. Reuben Clark Law School (JRCL) following his appointment to the bench.
Judicial interpretation is the way in which the judiciary construes the law, particularly constitutional documents, legislation and frequently used vocabulary. This is an important issue in some common law jurisdictions such as the United States, Australia and Canada, because the supreme courts of those nations can overturn laws made by their legislatures via a process called judicial review.
Bruce Allen Murphy is an American judicial biographer and scholar of constitutional law and politics. He is the Fred Morgan Kirby Professor of Civil Rights at Lafayette College in Easton, Pennsylvania, a position he has held since 1998. Prior to that appointment, he was a professor of Political Science and a professor of American History and Politics at Pennsylvania State University.
On March 16, 2016, President Barack Obama nominated Merrick Garland for Associate Justice of the Supreme Court of the United States to succeed Antonin Scalia, who had died one month earlier. At the time of his nomination, Garland was the chief judge of the United States Court of Appeals for the District of Columbia Circuit.
Amy Vivian Coney Barrett is an American lawyer and jurist who serves as an associate justice of the Supreme Court of the United States. The fifth woman to serve on the court, she was nominated by President Donald Trump and has served since October 27, 2020. Barrett was a U.S. circuit judge on the U.S. Court of Appeals for the Seventh Circuit from 2017 to 2020.
The independent state legislature theory or independent state legislature doctrine (ISL) is a judicially rejected legal theory that posits that the Constitution of the United States delegates authority to regulate federal elections within a state to that state's elected lawmakers without any checks and balances from state constitutions, state courts, governors, ballot initiatives, or other bodies with legislative power. In June 2023, in the case Moore v. Harper, the Supreme Court ruled in a 6–3 decision that the Elections Clause of the U.S. Constitution does not give state legislatures sole power over elections and rejected the ISL.