The theory of originalism treats a constitution as a law, giving it the meaning that its words had at the time of their promulgation. You will sometimes hear that it is described as the original intention theory. You will never hear that I am referring to the original intent because, as I said, I am first a textualist and then an originalist. If you are a textualist, you do not care about intent, and I do not care whether the framers of the Constitution had a secret meaning in mind when they adopted their words. I take the words as they have been proclaimed to the people of the United States, and what is the fairly well understood meaning of those words. [20] In addition, some of the so-called “new originalists” theorists have theories of constitutional construction that incorporate normative considerations into the decision of cases within the construction zone: Jack Balkin`s “living originalism” or “frame originalism” is a striking example. In contrast to Balkin`s approach, other originalists have approaches to constitutional construction that may be more restrictive, some of which will be discussed below. Controversies within the New Originalism, criticisms of non-originalists As Keith Whittington, an influential scholar of originalism at Princeton University, wrote in 2004, the brand of originalism Scalia touted for most of his career was “a reactive theory motivated by substantial disagreements with the recent and then-current actions of the Warren and Burger Courts.” The originalism of the second wave developed as “a way of explaining what the court had done wrong, and what it had done wrong in this context, was mainly to invalidate the government`s action in the name of individual rights.” Originalism is actually a family of related legal views. As a school of legal thought, originalism can be traced back to Robert Bork`s “Neutral Principles and Some First Amendment Problems,” published in the Indiana Law Journal in January 1971. [10] But it wasn`t until the 1980s, when conservative jurists began sitting on the Supreme Court, that the debate began in earnest.

The “old originalism” focused mainly on “intent,” mostly by default. But this line was largely abandoned in the early 1990s; When the “new originalism” emerged, most adherents subscribed to the originalism of the “original meaning,” although there were some intentionalists in the new originalism. The fact that the authors themselves were uncertain about the constitutional significance also raises debate about how originalists should approach stare decisis. Randy Barnett and Keith Whittington played a leading role in the development of the “new originalism”. Both Barnett and Whittington build their theories on a basis of “original public meaning,” but they extend the Scalia and Lawson stages in several interesting ways. For the purposes of this very brief overview, perhaps its most important step is to distinguish between “constitutional interpretation,” understood as the commitment to distinguish the semantic content of the constitution, and “constitutional construction,” which we could tentatively define as the activity of further specification of constitutional rules when the original public meaning of the text is vague (or for some other reason indefinite). This distinction explicitly recognizes what we might call “the fact of constitutional underdetermination.” With this expression, originalists with an original meaning explicitly adopt the idea that the original public meaning of the text “expires” and that, therefore, constitutional interpretation must be supplemented by a constitutional construction whose results must be guided by something other than the semantic content of the constitutional text. Semantic originalism is Ronald Dworkin`s term for the theory that the original meaning of many laws implies that these laws prohibit certain acts that, at the time of their adoption, are widely considered not prohibited by laws.

This type of originalism contrasts with the originalism of expectations, which adheres to the way the statutes worked at the time of their adoption without expecting them to work otherwise. [21] Originalism assumes that Marbury is right: the Constitution is the charter of operation granted to government by the people under the preamble to the Constitution of the United States, and its written nature introduces some discipline into its interpretation. Originalism further argues that the need for such a written charter stemmed from the Framers` perception of abuse of power under the (unwritten) British Constitution, according to which the Constitution was essentially what Parliament decided for it. In drafting a constitution that explicitly granted some powers to the government and denied it others, and in which power was balanced among several agencies (the presidency, two houses of Congress and the Supreme Court at the national level, and state governments of the United States with similar branches), the intention of the Framers was to retain the government. Originalists argue, and the value of such a document is nullified if the meaning of this document is not established. As one author put it: “If the Constitution can mean anything, then the Constitution is reduced to irrelevance. [34] We are already beginning to see originalists grappling with the relationship between primordial meaning and precedent—both in the narrow sense of Supreme Court decisions and more broadly in the established practices of the political branches of government and states. Some originalists have argued that constitutional actors should generally follow the original meaning, even if it would conflict with long-standing historical practice or established precedent. Other originalists argue that historical precedents and/or practices may, under certain circumstances, override the original meaning. Among the originalist judges, Justice Scalia has sometimes argued that precedent trumps original meaning, while Justice Thomas seems more willing to disturb precedents incompatible with originalism. As Solum told me in an email, “originalists need to be open about the problems of transitioning to originalism.” If the Court “proceeds slowly in areas of law where the immediate restoration of the original meaning is not possible or undesirable, it will be difficult to establish objective norms.” In a 2017 essay, Barrett suggests several tactics an original Supreme Court could employ to avoid chaos.

For example, since the court`s “discretion generally allows it to choose the questions it wants to answer,” she suggests, for example, that the court can simply agree not to hear cases seeking to legalize segregation in public schools. Or the attempt to declare the dollar unconstitutional. Before Black joined the Court, most of the Bill of Rights was supposed to apply only to the federal government. States were free to violate most of those rights. One of Black`s major projects on the Supreme Court – one that was largely successful – was to make the entire Bill of Rights applicable to states.