Talk:Originalism

Removal of Globalize banner?
Given that originalism is almost entirely a US phenomenon, I suggest we remove the banner suggesting more perspectives from outside of the USA. — Preceding unsigned comment added by Xam2580 (talk • contribs) 03:43, 23 November 2023 (UTC)

Original research
These sections were removed for significant original research that was flagged two months ago but still not addressed.

Function of constitutional jurisprudence
Dissenting in Romer v. Evans, Scalia wrote:

"Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected."

This statement summarizes the role for the court envisioned by originalists, that is, that the Court parses what the general law and constitution say of a particular case or controversy, and when questions arise as to the meaning of a given constitutional provision, that provision should be given the meaning it was understood to mean when ratified. Reviewing Steven Douglas Smith's book Law's Quandary, Scalia applied this formulation to some controversial topics routinely brought before the Court:

"It troubles Smith, but does not at all trouble me—in fact, it pleases me—that giving the words of the Constitution their normal meaning would 'expel from the domain of legal issues ... most of the constitutional disputes that capture our attention', such as 'Can a macho military educational institution dedicated to what is euphemistically called the 'adversative' method admit only men? Is there a right to abortion? Or to the assistance of a physician in ending one's life?' If we should read English as English, Smith bemoans, 'these questions would seemingly all have received the same answer: 'No law on that one.

That is precisely the answer they should have received: The federal Constitution says nothing on these subjects, which are therefore left to be governed by state law."

In Marbury, Chief Justice John Marshall established that the Supreme Court could invalidate laws which violated the Constitution (that is, judicial review), which helped establish the Supreme Court as having its own distinct sphere of influence within the federal government. However, this power was itself balanced with the requirement that the Court could only invalidate legislation if it was unconstitutional. Originalists argue that the modern court no longer follows this requirement. They argue that, since U.S. v. Darby, the Court has increasingly taken to making rulings in which the Court has determined not what the Constitution says, but rather, the Court has sought to determine what is "morally correct" at this point in the nation's history, in terms of "the evolving standards of decency" (and considering "the context of international jurisprudence"), and then justified that determination through a "creative reading" of the text. This latter approach is frequently termed "the Living constitution"; Scalia inveighed that "the worst thing about the living constitution is that it will destroy the constitution".

Matters rendered moot by originalism
Originalists are sharply critical of the use of the evolving standards of decency (a term which first appeared in Trop v. Dulles) and of reference to the opinions of courts in foreign countries (excepting treaties to which the United States is a signatory, per Article II, Section 2, Clause 2 of the United States Constitution) in Constitutional interpretation.

In an originalist interpretation, if the meaning of the Constitution is static, then modern sensibilities are irrelevant and should not form any part of constitutional jurisprudence. Additionally, foreign laws or morals (if they had no impact on the original drafting) are completely irrelevant. The Constitution is thus fixed and has amendment procedures to change. The exception to the use of foreign law is the English common law, which originalists regard as setting the philosophical stage for the US Constitution and the American common and civil law. Hence, an originalist might cite Blackstone's Commentaries to establish the meaning of the term due process as it would have been understood at the time of ratification.

Many originalists have serious disagreements with substantive due process. Justices Scalia and Thomas have called the doctrine an “oxymoron". These originalists view the due process clause as solely referring to procedural due process. To justify the incorporation or the discovery of unenumerated rights, Justice Gorsuch and Justice Thomas would prefer that the court rely on the Privileges and Immunities Clause rather than substantial due process. Not all originalist judges agree with the criticism of substantive due process.

Original research sections removed from the article
Originalism is an umbrella term for interpretative methods that hold to the "fixation thesis", the notion that an utterance's semantic content is fixed at the time it is uttered. Two alternative understandings about the sources of meaning have been proposed:


 * The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what those who drafted and ratified it intended the meaning to be. This view has become largely depreciated among 21st-century originalists. Alfred Avins and Raoul Berger (author of Government by Judiciary) were proponents of this view.
 * The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text to be. Antonin Scalia was a proponent of this view, as are Clarence Thomas and Amy Coney Barrett.

Original intent
The original form of originalism is sometimes called intentionalism, or original intent originalism, and looked for the subjective intent of a law's enactors. One problem with this approach is identifying the relevant "lawmaker" whose intent is sought. For instance, the authors of the U.S. Constitution could be the particular Founding Fathers that drafted it, such as those on the Committee of Detail. Or, since the Constitution purports to originate from the People, one could look to the various state ratifying conventions. The intentionalist methodology involves studying the writings of its authors, or the records of the Philadelphia Convention, or debates in the state legislatures, for clues as to their intent.

There are two kinds of intent analysis, reflecting two meanings of the word intent. The first, a rule of common law construction during the Founding Era, is functional intent. The second is motivational intent. To understand the difference, one can use the metaphor of an architect who designs a Gothic church with flying buttresses. The functional intent of flying buttresses is to prevent the weight of the roof from spreading the walls and causing a collapse of the building, which can be inferred from examining the design as a whole. The motivational intent might be to create work for his brother-in-law who is a flying buttress subcontractor. Using original intent analysis of the first kind, one might decide that the language of Article III of the U.S. Constitution was to delegate to Congress the power to allocate original and appellate jurisdictions, and not to remove some jurisdiction, involving a constitutional question, from all courts. That would suggest that the decision was wrong in Ex Parte McCardle.

Problems with intentionalism
However, intentionalism encounters numerous problems when applied to the Constitution. For example, most of the Founders did not leave detailed discussions of what their intent was in 1787, and, while a few did, there is no reason to think that their views should be dispositive of what the rest thought. Moreover, the discussions of the drafters may have been recorded; however they were not available to the ratifiers in each state. The theory of original intent was challenged in a string of law review articles in the 1980s. Specifically, original intent was seen as lacking good answers to three important questions: whether a diverse group such as the framers even had a single intent; if they did, whether it could be determined from two centuries' distance; and, whether the framers themselves would have supported original intent.

In response to this, a different strain of originalism, articulated by (among others) Antonin Scalia, Robert Bork, and Randy Barnett, came to the fore. This is dubbed original meaning.

Original meaning
Justice Oliver Wendell Holmes argued that interpreting what was meant by someone who wrote a law was not trying to "get into his mind" because the issue was "not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used." This is the essential precept of modern originalism.

The most robust and widely cited form of originalism, original meaning, emphasizes how the text would have been understood by a reasonable person in the historical period during which the constitution was proposed, ratified, and first implemented. For example, economist Thomas Sowell notes that phrases like "due process" and "freedom of the press" had a long established meaning in English law, even before they were put into the Constitution of the United States. Applying this form involves studying dictionaries and other writings of the time (for example, Blackstone's Commentaries on the Laws of England; see "Matters rendered moot by originalism", infra) to establish what particular terms meant. (See Methodology, infra).

Justice Scalia, one of the most forceful modern advocates for originalism, 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." Though there is evidence that the Founding Fathers intended the Constitution to be like a statute, this fact does not matter under Scalia's approach. Adherence to original meaning is explicitly divorced from the intent of the Founders; rather, the reasons for adhering to original meaning derive from other justifications, such as the argument that the understanding of the ratifiers (the people of the several States at the time of the adoption of the Constitution) should be controlling, as well as consequentialist arguments about original meaning's positive effect on rule of law.

Perhaps the clearest example illustrating the importance of the difference between original intent and original meaning is the Twenty-seventh Amendment. The Twenty-seventh Amendment was proposed as part of the Bill of Rights in 1791, but failed to be ratified by the required number of states for two centuries, eventually being ratified in 1992. An original intent inquiry might ask what the framers understood the amendment to mean when it was written, though some would argue that it was the intent of the latter-day ratifiers that is important. An original-meaning inquiry would ask what the plain, public meaning of the text was in 1992 when it was eventually ratified.

Semantic originalism
Semantic-originalism is Ronald Dworkin's term for the theory that the original meaning of many statutes implies that those statutes prohibit certain acts widely considered not to be prohibited by the statutes at the time of their passages. This type of originalism contrasts with expectations originalism, which adheres to how the statutes functioned at the times of their passages, without any expectation that they would function in any other particular ways.

Justice Antonin Scalia and other originalists often claim that the death penalty is not "cruel and unusual punishment" because at the time of the Eighth Amendment's passage, it was a punishment believed to be neither cruel nor unusual. Dworkin and the semantic-originalists assert, however, that if advances in moral philosophy (presuming that such advances are possible) reveal that the death penalty is in fact "cruel and unusual", then the original meaning of the Eighth Amendment implies that the death penalty is unconstitutional. All the same, Justice Scalia purported to follow semantic originalism, although he conceded that Dworkin does not believe Scalia was true to that calling.

Framework originalism
Framework Originalism is an approach developed by Jack Balkin, a professor of law at Yale Law School. Framework Originalism, or Living Originalism, is a blend of two principal constitutional interpretive methods: originalism and Living Constitution. Balkin holds that there is no inherent contradiction between these two interpretive approaches—when properly understood. Framework Originalists view the Constitution as an "initial framework for governance that sets politics in motion." This "framework" must be built-out or filled-out over time, successive generations, by the various legislative and judicial branches. This process is achieved, primarily, through building political institutions, passing legislation, and creating precedents (both judicial and non-judicial). In effect, the process of building out the Constitution on top of the framework of the original meaning is living constitutionalism, the change of and progress of law over time to address particular (current) issues. The authority of the judiciary and of the political branches to engage in constitutional construction comes from their "joint responsiveness to public opinion" over long stretches of time, while operating within the basic framework of the original meaning. Balkin claims that through mechanisms of social influence, both judges and the political branches inevitably come to reflect and respond to changing social mores, norms, customs and (public) opinions.

According to Framework originalism, interpreters should adhere to the original meaning of the Constitution, but are not necessarily required to follow the original expected application (although they may use it to create doctrines and decide cases). For example, states should extend the equal protection of the laws to all peoples, in cases where it would not originally or normally have applied. Contemporary interpreters are not bound by how people in 1868 would have applied these words and meanings to issues such as racial segregation or (sexual) discrimination, largely due to the fact the Fourteenth Amendment is concerned with such issues (as well as the fact that the Fourteenth Amendment was not proposed or ratified by the founders). When the Constitution uses or applies principles or standards, like "equal protection" or "unreasonable searches and seizures," further construction is usually required, by either the judiciary, the executive, or the legislative branch. Therefore, Balkin claims, (pure, unadulterated) originalism is not sufficient to decide a wide range of cases or controversies. Judges, he posits, will have to "engage in considerable constitutional construction as well as the elaboration and application of previous constructions." For example, originalism (in and of itself), is not sufficient to constrain judicial behavior. Constraint itself does not just come from doctrine or canons, but also from institutional, political, and cultural sources. These constraints include: multi-member or panel courts (where the balance of power lies with moderate judges); the screening of judges through the federal judicial appointment process; social and cultural influences on the judiciary (which keep judges attuned and attentive to popular opinions and the political will of the people); and prevailing professional legal culture and professional conceptions of the role of the judiciary (which produce social norms or mores). These constraints ensure that judges act as impartial arbiters of the law and to try to behave in a principled manner, as it applies to decision making.

Professor Nelson Lund of George Mason University Law School has criticized Balkin's living originalism theory. Specifically, Lund argues that living originalism could be used to read the 26th Amendment to the United States Constitution in such a way that it allows for an 18-year-old U.S. President (with the argument being that the 26th Amendment implicitly amends the 35-year age requirement for the U.S. presidency as well as all other age requirements for federal offices to make all of them 18 years). Also, Lund argues that if living originalism could be used to justify a constitutional right to same-sex marriage, then "it would be child's play to construct the Fourteenth Amendment into a shield for polygamy, prostitution, incest (at least among adults), polyamorous marriages, and a variety of other unorthodox sexual relationships." Finally, Lund argues that "[w]hatever one's reasons for accepting Balkin's proposal to marry originalism and living constitutionalism, doing so leaves originalism itself in a condition akin to the legal death that married women experienced under the old rules of coverture." Superb Owl (talk) 20:21, 25 April 2024 (UTC)
 * ===Philosophical underpinnings===

Originalism, in all its various forms, is predicated on a specific view of what the Constitution is, a view articulated by Chief Justice John Marshall in Marbury v. Madison:

"[T]he constitution organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.

The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained?"Originalism assumes that Marbury is correct: the Constitution is the operating charter granted to government by the people, as per the preamble to the United States Constitution, and its written nature introduces a certain discipline into its interpretation. Originalism further assumes that the need for such a written charter was derived from the perception, on the part of the Framers, of the abuses of power under the (unwritten) British Constitution, under which the Constitution was essentially whatever Parliament decided it should be. In writing out a Constitution which explicitly granted the government certain authorities, and withheld from it others, and in which power was balanced between multiple agencies (the presidency, two chambers 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 restrain government, originalists argue, and the value of such a document is nullified if that document's meaning is not fixed. As one author stated, "If the constitution can mean anything, then the constitution is reduced to meaninglessness."

Original intent vs original public meaning vs textualism
I think this article needs to have a section on the differences between original intent and original public meaning and textualism. All 3 are related and are sometimes confused. As for the original research issues, I think citing 1 or more supreme court justices (like below) is sufficient as a source. I for one think the section below should be restored:

"The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text to be. Antonin Scalia was a proponent of this view, as are Clarence Thomas and Amy Coney Barrett." Xam2580 (talk) 22:05, 3 May 2024 (UTC)


 * We'd still need a reliable source attributing these distinctions to those justices. Superb Owl (talk) 22:19, 3 May 2024 (UTC)
 * Is a reliable source a court opinion written by any of these justices? Because some of the writings of Scalia above were seemingly rejected. Xam2580 (talk) 22:24, 3 May 2024 (UTC)
 * That's a good question - it makes me uncomfortable to use court decisions or the works of the justices themselves as sources but open to what others think Superb Owl (talk) 22:27, 3 May 2024 (UTC)
 * Given that originalism is (mostly) a creation of the federal judiciary, I see no issues using the works of 100% beyond any doubt committed originalist justices as a source, especially if the source is qualified (like "originalist judge X said 'Y'"). Xam2580 (talk) 19:34, 7 May 2024 (UTC)
 * I disagree - I think we need secondary sources separate from those making decisions.
 * Also, I wanted to add links to the articles that might explain why I reverted your last edits: WP:synthesis, WP:No original research and not in an WP:encyclopedic tone. Superb Owl (talk) 20:18, 7 May 2024 (UTC)
 * Secondary sources dont often exist about specific judicial viewpoints... Why can't we just take the judges at their word? Xam2580 (talk) 20:23, 7 May 2024 (UTC)
 * If secondary sources are not available, then it is usually not notable enough for inclusion. I would recommend you also read WP:Reliable sources Superb Owl (talk) 20:29, 7 May 2024 (UTC)
 * I have. I understand the focus on secondary sources but I think judicial opinions count or should be an exception. Especially those from the supreme court where many judges join together to issue joint opinions, using a judicial opinion of "judge X who is commonly associated with originalism said Z" seems acceptable to me.
 * Judges in the common law system discover law, and originalism is a judicial doctrine. At least for this article, I would argue for some flexibility and leeway. Xam2580 (talk) 20:30, 8 May 2024 (UTC)

"See Also" Democratic backsliding in the United States
It may be that a correlation exists between anti-democratic (lowercase d) elements in the United States and the views of originalism, but I fail to see how Democratic backsliding in the United States is a relevant link in the "See Also" section without violating NPOV. JohnSon12a (talk) 19:22, 7 May 2024 (UTC)


 * I agree - what about linking to: Democratic backsliding in the United States?
 * I also removed Constitution in Exile since the page had so many issues and maybe 2 reliable sources Superb Owl (talk) 20:54, 7 May 2024 (UTC)
 * I have objections to linking to democratic backsliding because of Originalism's emphasis on empowering the people and democracy by insisting on democratic/legislative change to the law. I think such a link could be ok but at a minimum any link to democratic backsliding should be clearly shown to be disputed by originalist scholars. Xam2580 (talk) 15:08, 8 May 2024 (UTC)
 * I think the new location of the 'see also' in the opposition section improves the article as it provides a reference to other similar critiques of the conservative court and its judicial philosophy. I agree that as a standalone 'see also' it is not warranted Superb Owl (talk) 21:40, 8 May 2024 (UTC)

Originalist test/framework in Bruen/other SCOTUS cases
Adding discussion section to address this issue if anyone has thoughts/wants to comment. The supreme court has been using originalism in new ways and has been constructing tests to constrain lower courts based on originalism; I think it is relevant and could use more detailed analysis. It is a more modern practice with limited scholarship, making it difficult to put on wikipedia. I also think it is pretty clear that a quasi-originalist/originalist framework has been used in 7th amendment jurisprudence. Happy to discuss/have other input.