20.2 Originalism: Variants and Critiques

Originalism, a key approach to constitutional interpretation, argues the Constitution's meaning should be determined by its original understanding at adoption. This view holds that judges should be constrained by the text and original meaning, not evolving social norms or personal values.

Different forms of originalism exist, including intent-based and meaning-based approaches. While originalists share a focus on original meaning, they can reach different conclusions. Supporters argue it constrains judges, while critics say it's often indeterminate and may lead to unacceptable outcomes.

Originalism: Core Principles

Key Tenets of Originalism

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• Originalism holds the meaning of the Constitution should be determined by reference to the original understanding at the time of its adoption
• Originalists believe judges should be constrained by the text and original meaning of the Constitution, rather than interpreting it according to evolving social norms or the judges' own value judgments
• Changes to the Constitution's meaning should occur through the formal amendment process, not judicial reinterpretation

Originalist Arguments

• Originalism provides an objective, neutral basis for interpretation
  • Prevents judges from imposing their own policy preferences under the guise of constitutional law
• Critics contend originalism is indeterminate in many cases
  • Relies on contestable historical judgments about original meaning

Originalism: Forms and Approaches

Intent-Based Approaches

• Original intent originalism holds the Constitution should be interpreted according to the subjective intentions of the framers who drafted it (associated with scholars like Raoul Berger)
• Original understanding originalism focuses on how the Constitution was understood by those who ratified it in state conventions, rather than just the framers themselves

Meaning-Based Approaches

• Original public meaning originalism looks to the objective semantic meaning of the constitutional text as it would have been understood by the general public at the time of ratification (advocated by Antonin Scalia and others)
• Original methods originalism holds the Constitution should be interpreted using the interpretive methods that were used by the framers and ratifiers themselves (proposed by John McGinnis and Michael Rappaport)

Differences Among Originalist Approaches

• While variants of originalism share a common focus on original meaning, they can lead to different conclusions in particular cases
  • Intent-based approaches look to subjective intentions of framers or ratifiers
  • Meaning-based approaches focus on objective public meaning or interpretive methods of founding generation

Arguments for and against Originalism

Arguments for Originalism

• Constrains judges and promotes democratic accountability
• Provides a neutral, objective basis for constitutional decision-making
• Most faithful to the written Constitution and the social contract it represents between the people and their government

Arguments against Originalism

• Framers themselves did not believe their specific intentions should always control
  • Sometimes used broad language to allow for adaptive interpretation over time
• Relies on false assumption that constitutional provisions always had a single, clear, determinate public meaning at ratification
  • Historical record is often ambiguous or incomplete
  • Reasonable people could disagree on relevant original meaning
• Rigid originalism may lead to unacceptable outcomes in some cases (persistence of segregation or malapportioned legislatures)
• Constitution's meaning can evolve through common law development by courts, within broad boundaries set by text and original principles

Applying Originalism: Modern Challenges

Difficulties Applying Originalism to Contemporary Issues

• World has changed dramatically since 1787
  • Constitution often does not speak directly to many contemporary issues (telecommunications, healthcare, environmental protection)
• Originalist sources may shed limited light on how to apply constitutional provisions to modern problems unforeseen by framers
  • Records of Philadelphia Convention, Federalist Papers, 18th century dictionaries

Inconsistencies and Disagreements Among Originalists

• Self-proclaimed originalists on Supreme Court have often disagreed about relevant original meaning
  • Reached divergent conclusions in major cases
• Even committed originalists sometimes depart from theory where results of following original meaning might be very disruptive (paper money, administrative state)

Prominence of Originalist Arguments

• At Supreme Court, originalist arguments are most prominent in cases involving:
  • Constitutional structure
  • Individual rights
  • Social issues
• Less prominent in cases involving economic regulation