Con Law IInterpreting the Constitution

Originalism

Originalists hold that the Constitution's meaning was fixed when each provision was adopted, today usually as its original public meaning; advocates say this keeps judges bound by law rather than preference and leaves change to the amendment process.

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Originalism is a family of theories built on one claim: the meaning of each provision of the Constitution was fixed when it was adopted, and judges should apply that fixed meaning. It grew in the 1970s and 1980s through scholars such as Robert Bork and officials such as Attorney General Edwin Meese, and on the Supreme Court through Justices Antonin Scalia and Clarence Thomas, joined later by others. It leans on the textual and historical modalities.

Three versions

Most originalists today look for public meaning, not private intentions.
VersionWhat fixes the meaningCommon criticism, and the reply
Original intentWhat the framers meant to accomplishHundreds of drafters and ratifiers had no single intent. Most originalists moved away from this version for that reason.
Original public meaning (the main version today)What a reasonable, informed reader understood the words to mean when ratifiedHistorical meaning can be hard to find. Advocates reply that courts weigh historical evidence all the time, and the method still narrows the choices.
Original expected applicationThe specific results people expected thenFew originalists hold it: the public meaning of a principle can reach facts the founders never imagined.

Why it works

Advocates give several reasons. Law, not preference: a written constitution is law because the people ratified its words, and judges have no authority to change them. Restraint: a fixed meaning limits judges, who are unelected and serve for life. Democracy and Article V: if the Constitution needs to change, the people can amend it, as they have 27 times; when judges update it instead, they take that choice from the people. Justice Scalia called his approach the "lesser evil" compared with asking judges to apply their own values.

Key idea

Originalists hold that a provision's meaning was fixed at ratification, usually as its original public meaning, and that judges must apply that meaning; change comes through amendment.
Tap the marked words. Originalism turns questions about power into questions about historical meaning.

Worked example: Public meaning, not private intent

A historian finds a letter in which one delegate wrote that he hoped the Commerce Clause would someday reach manufacturing. A public-meaning originalist is asked whether that settles the clause's meaning.
  1. Private hopes of one drafter are not the meaning the public ratified.
  2. The originalist looks instead for how the word "commerce" was used in dictionaries, newspapers, legal writing and the ratification debates of 1787–1788.
  3. The letter might be weak evidence of usage, but it does not control.

Answer: No. Public-meaning originalism asks what the words meant to the ratifying public, not what one framer privately wanted.

Worked example: Originalism and new technology

Does an originalist have to say that the Fourth Amendment's "papers" and "effects" cannot cover a smartphone, since none existed in 1791?
  1. Separate the fixed meaning of a term from the facts it applies to.
  2. If "effects" publicly meant a person's personal property, a phone is personal property.
  3. The meaning stays fixed; its application reaches new things that fit it.

Answer: No. Public-meaning originalists hold that fixed principles apply to new facts. That is the difference from "expected application."

Common mistake

Equating originalism with the framers' private intentions, or with freezing the Constitution in 1788. Most originalists today look to the public meaning of the words when ratified. Check: does the argument rely on dictionaries, usage and the ratification debates (public meaning), or on one framer's hopes (intent)?

Critics answer that history is often unclear, that originalists disagree among themselves, and that the method gives authority to a generation that excluded many Americans from voting. Originalists reply that every method has hard cases, that unclear history calls for deference to legislatures, and that the amendments themselves, such as the Fourteenth, Fifteenth and Nineteenth, were the people's way of correcting the founding. The next lesson presents living constitutionalism as its advocates present it. You can read the founding debates yourself on the ratification debate page.

This is an educational course, not legal advice.

Practice

Pass with 3 right answers, the last 2 in a row. Each right answer earns 3 XP.

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