Originalism

Originalism is a method of legal interpretation that most often applies to the United States Constitution. Originalists believe that legal interpretations of the Constitution should consider the original meaning of the document’s words or the intended meaning of the Founding Fathers who signed the Constitution on September 17, 1787. Originalists have slightly different ideas about what the term means, but nearly all believe that the meaning of the Constitution should not change over time. They believe that the document’s legal meaning has remained constant since it was written. They also believe the only way to change the Constitution is through amending it by the process laid out in the document. Originalists believe that more liberal ways of interpreting the Constitution allow justices to change laws of their own accord. Opponents of Originalism believe changes to the Constitution are warranted because ways of American life and society have changed since the document was written. Originalism became a popular term in the late twentieth century. In the early twenty-first century, it became identified as a method most often used by justices with conservative political beliefs, typically affiliated with the Republican Party.

Background

Originalism is broadly defined as a way of interpreting the law, but the term is used most often to refer to the way legal experts and judges interpret the United States Constitution. The Constitution is the supreme law in the United States and the foundation of the US federal government. Although the Constitution is the most powerful law in the United States, it is a relatively short document. It is made up of three parts. The first part, called the Preamble, is a short explanation of the document’s purpose and the purpose of the US federal government. The second part is made up of seven articles, which establish the federal government and explain how the parts of the government should function and work together. The Constitution’s third part is a list of Amendments, which are changes that list specific rights and rules. The Constitution was signed by thirty-nine representatives from twelve of the original thirteen states on September 17, 1787. It took effect in 1789. The first ten amendments are known as the Bill of Rights, which were ratified in 1791.

Because the Constitution is extremely important to the law in the United States, its articles and amendments guide legal decisions. The most important legal decisions are those decided in the Supreme Court, which is the United State’s most powerful legal body. The Supreme Court often has to make legal decisions based on the ideas and statements laid out in the Constitution. Although some Constitutional decisions are easily agreed on by all nine justices on the Supreme Court, many are more complicated. Justices interpret the Constitution to the best of their abilities, but different justices have different ways of interpreting the document.

The makeup of the Supreme Court changes over time. Since appointees are named by the president of the United States, the view of new Supreme Court justices can often mirror that of the president. For example, more liberal presidents may want the Court to take an open view on the Constitution, and choose a justice that is more willing to reinterpret the law. A conservative president may want the Court to have a stricter interpretation of the Constitution and may choose a justice who believes in originalism.

No matter the justices’ beliefs about interpreting the Constitution, the Supreme Court has remained one of the most powerful institutions in the country. Most of its decisions have remained decided law. Justices on the Court have typically been careful not to overturn many of the Court’s prevision decisions, even if those justices may have decided cases differently. By doing so, the Court’s decisions could be seen as changeable or politically motivated, an impression the justices want to avoid.

Overview

Phrases, such as “original intention” and “original understanding,” with meanings similar to originalism were first used in the 1930s to describe a way of interpreting the Constitution. In 1966, Justice Hugo Black—who is today considered an originalist—used the term “original meaning” in a dissenting Supreme Court opinion. In the 1970s, Robert Bork—who would become a famous federal judge—wrote a document called “Neutral Principles and Some First Amendment Problems,” which helped develop the originalist movement. In the 1980s, the term originalism first started to be used in legal journals to talk about a way of interpreting the Constitution.

Although all originalists believe in interpreting the Constitution according to its original intent, different schools of thought exist about exactly how to accomplish that. Some originalists believe they should adhere to the signers’ original meaning when they wrote the laws. For example, such originalists might study how the government applied the law in the past, and follow that path for all present and future laws. However, others believe in a stricter form of originalism in which the justices interpret each word and phrase individually. To do this, they use the legal definitions associated with the words and phrases at the time the Constitution was written.

These methods are very different. Some originalists even reject the idea of using the Founding Fathers’ intent when interpreting the law, and instead focusing strictly on the text itself. Justice Antonin Scalia was one of the Supreme Court’s most famous originalists. He believed in the strictest form of originalism. He explained his opinion by saying, “[people who write laws] may intend what they will; but it is only the laws that they enact which bind us.” The problem with having various definitions for the word is that no authority can enforce a particular definition, so people with various methods can all call themselves originalists. This can be confusing, as someone may support certain originalist methods of interpretation and not others.

Although originalism describes only a form of constitutional interpretation, the word connotes different meanings to different groups. Generally, people who support originalism hold conservative political values. Some conservatives think of originalism as a way of interpreting the Constitution that will prevent judges from changing laws on their own. Nevertheless, some people who hold liberal political beliefs are more likely to view a justice who uses originalism to indicate one that will support only conservative decisions. In the early twenty-first century, it was common for Americans to support particular methods of interpreting the Constitution based on their personal political beliefs.

Originalists claim that their method of interpreting the Constitution is the only acceptable method because other methods will change the meaning of the document. Originalists who believe in using the stricter version of originalism, which is based on the original meaning and not original intent, believe that the Constitution is not a “living document” and its ideas must not be changed. Originalists believe that people who support the idea of a living Constitution will create decisions that are not aligned with what the country’s Founding Fathers believed or envisioned. In the early 2020s, more originalists aligned with the belief that the Constitution should be interpreted with the original meaning, not the intent, in mind.

One of the main arguments against originalism is that it does not allow the law to protect minority groups, such as African Americans and women. When the document was written, slavery was legal in the United States and women had limited rights. The framers of the Constitution did not outlaw slavery, which allowed the practice to continue for decades after the document was signed. Women did not get the right to vote until the Nineteenth Amendment was ratified in 1920. Some justices believe in an “evolving standards of decency,” which would require them to consider the changes in society in addition to the original text of the Constitution. Another argument against strict originalism is that it can be difficult, if not impossible, to understand the exact original meaning of certain words and phrases in the Constitution. For example, the Eighth Amendment to the Constitution forbids authorities from using “cruel and unusual punishment” on people accused of crimes. This phrase did not have a well-known, specific definition, so anyone interpreting the Constitution, no matter their form of interpretation, would be developing their own definition for the phrase.

Some people attempt to solve the perceived problems of originalism by combining its ideas with other methods of interpretation. For example, framework originalism is a method that states people interpreting the Constitution should, at the same time, understand the Founding Fathers’ original intent while also applying the rules in ways that are different from their original intent. For example, this type of interpretation would allow a justice to interpret a law as protecting all groups of people, even if the original framers did not intend for the law to do so.

One of the enduring challenges with originalism is that the drafters of the US Constitution left behind wording that is ambiguous or open to wide swaths of interpretation. For example, the Second Amendment, which profoundly impacts American politics in the twenty-first century, has conflicting guidance. On one side, its verbiage suggests the framers favored the right of citizens to keep and bear arms. Conversely, the amendment also states that this allowance for weaponry is in the context of a well-regulated militia.

The 2020s also saw the rise of the Christian nationalism movement within the United States. Originalism comes into play when some Christian nationalism adherents, with dubious historical backing, insist that the original framers of the Constitution intended the country to be governed along ill-defined Judeo-Christian precepts. These precepts, nonetheless, are perceived by many legal scholars as not being faithful to the Constitution. This false branding of originalism can instead serve as a pretext to preserve preferential treatment for historically favored groups.

Bibliography

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