Originalism: Encyclopedia II - Originalism - Forms of originalism

Originalism - Forms of originalism

Originalism is actually a family of related views.

Originalism - Original intent

The "original form of originalism", used for ordinary law as well as constitutional law, was called "Original intent", and entailed applying laws based on the subjective intention of its authors. For instance, the authors of the U.S. Constitution would be the group of "Founding Fathers" that drafted it. Applying this form involves studying the writings of its authors, or the records of the Philadelphia Convention, for clues as to their intent.

Originalism - Problems with original intent

However, original intent has fallen out of favor since a string of Law review articles attacking Robert Bork and the original intent process ^[15] prior to his (Bork's) abortive Senate confirmation hearing to the Supreme Court. 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 ^[16].

In response to this, a different strain of originalism, articulated by (among others) Antonin Scalia ^[17], Robert Bork ^[18] and Randy Barnett ^[19], came to the fore. This is dubbed original meaning.

Originalism - 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." ^[20] 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, Thomas Sowell notes that phrases like "due process" and "freedom of the press" had a long established meaning in British 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 out what particular terms meant. See Methodolody, infra).

Justice Scalia, one of the most forceful modern advocates for originalism, defines himself as belonging to the latter category:

Adapted from the Wikipedia article "Forms of originalism", under the G.N U Free Docmentation License. Please also see http://en.wikipedia.org/wiki