Original meaning
Encyclopedia
In the context of United States
constitutional interpretation, original meaning is the dominant form of the legal theory
of originalism
today. It was made popular by Supreme Court Justice Antonin Scalia
and contends that the terms of the United States Constitution
should be interpreted as meaning what they meant when they were ratified, which is to say, it asks the question: "What would a reasonable person
living at the time of ratification have understood these words to mean?"
The theory stands in equal opposition to interpretivist theories such as original intent
, and legal realist
theories such as that of the Living Constitution
.
theory, and a logical extension of textualism
. Textualists believe that a statute means whatever the plain meaning
of its words is, as opposed to other potential meanings, such as what those who drafted the law or voted for it intended it to say. Formalists would point out that it is unnecessary for any member of the legislature to share the intentions of any other member of the legislature, or even to have a particular intent; what counts is their vote, just as if a voter enters a polling station while inebriated, and indicates a preference for the wrong candidate, their vote will count as a vote for the person they indicated on the ballot paper, not for the candidate for whom they intended to vote before they started drinking. Likewise, even if not a single member of the legislature has read and comprehended the effect of a given bill (a scenario some critics of the USA PATRIOT Act allege to have actually occurred during its enactment), once it becomes law, it is a law no less or more valid than an identically worded law passed when every member of the legislature is of the same mind and understanding regarding its meaning an deffect. This being the case, it is the text of the law which governs.
Originalists of all stripes cite the Federalist Papers
. It is fairly tenuous to suggest that this represents a good source for the original intent - after all, Alexander Hamilton
, who wrote the lion's share of those essays, was absent for the greater part of the Philadelphia Convention
, and John Jay
did not attend it at all. However, James Madison, the principle framer of the Constitution also wrote a substantial amount of the federalist papers. And to suggest Hamilton and Jay's absence from the convention implies their ignorance as to the Constitution's original meaning is demeaning to those two men and inaccurate. The collected anti-Federalist papers, of course, will be no use at all to a person searching for the original intent of the framers. But as evidence of how a reasonable person at the time would have understood the words of the Constitution, the Federalist Papers and the antifederalist essays are evidence of direct relevance.
Likewise, neither John Adams
nor Thomas Jefferson
attended the Convention, and thus two of the most prolific writers of the founding era are necessarily excluded (or, at best, abstracted) from an original-intent inquiry. Because they were reasonable contemporaries of the Framers, their writings are informative to discussions of the text's original meaning.
One of the primary virtues of original meaning over original intent is that the original meaning is a fairly discernible thing, while the original intent is nebulous and uncertain. This is well-illustrated by the use of dictionaries. Even out the playing field contemporaneous dictionaries are of dubious value to an original intent inquiry, but of high value to an original meaning inquiry: we can establish what the words the Framers chose meant, but that is not necessarily conclusive as to what they intended to say (consider for example, the law of unintended consequences
).
; whether Scalia can take credit for inventing it, he remains one of its most forceful and high-profile proponents, although he is also accused of deviating from the method (he has himself admitted that "in a crunch I may prove a faint-hearted originalist") (Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 at 864) into the territory of Bad originalism.
justice Anton Scalia, who said:
Justice Thomas has said:
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
constitutional interpretation, original meaning is the dominant form of the legal theory
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
of originalism
Originalism
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
today. It was made popular by Supreme Court Justice Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
and contends that the terms of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
should be interpreted as meaning what they meant when they were ratified, which is to say, it asks the question: "What would a reasonable person
Reasonable person
The reasonable person is a legal fiction of the common law that represents an objective standard against which any individual's conduct can be measured...
living at the time of ratification have understood these words to mean?"
The theory stands in equal opposition to interpretivist theories such as original intent
Original intent
Original intent is a theory in law concerning constitutional and statutory interpretation. It is frequently—and usually spuriously—used as a synonym for originalism generally; while original intent is indeed one theory in the originalist family, it has some extremely salient differences which has...
, and legal realist
Legal realism
Legal realism is a school of legal philosophy that is generally associated with the culmination of the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical legal thought in the United States...
theories such as that of the Living Constitution
Living Constitution
The Living Constitution is a concept in America, also referred to as loose constructionism, constitutional interpretation which claims that the Constitution has a dynamic meaning or that it has the properties of a human in the sense that it changes...
.
Theory
Original meaning is a formalistLegal formalism
Legal formalism is a legal positivist view in philosophy of law and jurisprudence. While Jeremy Bentham's can be seen as appertaining to the legislature, legal formalism appertains to the Judge; that is, formalism does not suggest that the substantive justice of a law is irrelevant, but rather,...
theory, and a logical extension of textualism
Textualism
Textualism is a formalist theory of statutory interpretation, holding that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or...
. Textualists believe that a statute means whatever the plain meaning
Plain Meaning Rule
The Plain meaning rule, also known as the literal rule, is one of three rules of statutory construction traditionally applied by English courts...
of its words is, as opposed to other potential meanings, such as what those who drafted the law or voted for it intended it to say. Formalists would point out that it is unnecessary for any member of the legislature to share the intentions of any other member of the legislature, or even to have a particular intent; what counts is their vote, just as if a voter enters a polling station while inebriated, and indicates a preference for the wrong candidate, their vote will count as a vote for the person they indicated on the ballot paper, not for the candidate for whom they intended to vote before they started drinking. Likewise, even if not a single member of the legislature has read and comprehended the effect of a given bill (a scenario some critics of the USA PATRIOT Act allege to have actually occurred during its enactment), once it becomes law, it is a law no less or more valid than an identically worded law passed when every member of the legislature is of the same mind and understanding regarding its meaning an deffect. This being the case, it is the text of the law which governs.
Practice
An Originalist inquiry into the original meaning of the Constitution is able to cast a much broader net than an inquiry into the original intent.Originalists of all stripes cite the Federalist Papers
Federalist Papers
The Federalist Papers are a series of 85 articles or essays promoting the ratification of the United States Constitution. Seventy-seven of the essays were published serially in The Independent Journal and The New York Packet between October 1787 and August 1788...
. It is fairly tenuous to suggest that this represents a good source for the original intent - after all, Alexander Hamilton
Alexander Hamilton
Alexander Hamilton was a Founding Father, soldier, economist, political philosopher, one of America's first constitutional lawyers and the first United States Secretary of the Treasury...
, who wrote the lion's share of those essays, was absent for the greater part of the Philadelphia Convention
Philadelphia Convention
The Constitutional Convention took place from May 14 to September 17, 1787, in Philadelphia, Pennsylvania, to address problems in governing the United States of America, which had been operating under the Articles of Confederation following independence from...
, and John Jay
John Jay
John Jay was an American politician, statesman, revolutionary, diplomat, a Founding Father of the United States, and the first Chief Justice of the United States ....
did not attend it at all. However, James Madison, the principle framer of the Constitution also wrote a substantial amount of the federalist papers. And to suggest Hamilton and Jay's absence from the convention implies their ignorance as to the Constitution's original meaning is demeaning to those two men and inaccurate. The collected anti-Federalist papers, of course, will be no use at all to a person searching for the original intent of the framers. But as evidence of how a reasonable person at the time would have understood the words of the Constitution, the Federalist Papers and the antifederalist essays are evidence of direct relevance.
Likewise, neither John Adams
John Adams
John Adams was an American lawyer, statesman, diplomat and political theorist. A leading champion of independence in 1776, he was the second President of the United States...
nor Thomas Jefferson
Thomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
attended the Convention, and thus two of the most prolific writers of the founding era are necessarily excluded (or, at best, abstracted) from an original-intent inquiry. Because they were reasonable contemporaries of the Framers, their writings are informative to discussions of the text's original meaning.
One of the primary virtues of original meaning over original intent is that the original meaning is a fairly discernible thing, while the original intent is nebulous and uncertain. This is well-illustrated by the use of dictionaries. Even out the playing field contemporaneous dictionaries are of dubious value to an original intent inquiry, but of high value to an original meaning inquiry: we can establish what the words the Framers chose meant, but that is not necessarily conclusive as to what they intended to say (consider for example, the law of unintended consequences
Unintended Consequences
Unintended Consequences is a novel by John Ross, first published in 1996 by Accurate Press. The story chronicles the history of the gun culture, gun rights and gun control in the United States from the early 1900s through the late 1990s...
).
Origins
The theory was arguably pioneered and popularized by Justice Antonin ScaliaAntonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
; whether Scalia can take credit for inventing it, he remains one of its most forceful and high-profile proponents, although he is also accused of deviating from the method (he has himself admitted that "in a crunch I may prove a faint-hearted originalist") (Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 at 864) into the territory of Bad originalism.
Selected Quotes
One prominent proponent of original meaning is Supreme CourtSupreme court
A supreme court is the highest court within the hierarchy of many legal jurisdictions. Other descriptions for such courts include court of last resort, instance court, judgment court, high court, or apex court...
justice Anton Scalia, who said:
- The Constitution is not a living organism, it is a legal document. It says something and doesn't say other things
Justice Thomas has said:
- Let me put it this way; there are really only two ways to interpret the Constitution -- try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.
See also
- Judicial activismJudicial activismJudicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
- Legal formalismLegal formalismLegal formalism is a legal positivist view in philosophy of law and jurisprudence. While Jeremy Bentham's can be seen as appertaining to the legislature, legal formalism appertains to the Judge; that is, formalism does not suggest that the substantive justice of a law is irrelevant, but rather,...
- OriginalismOriginalismIn the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
- Cf. Original intentOriginal intentOriginal intent is a theory in law concerning constitutional and statutory interpretation. It is frequently—and usually spuriously—used as a synonym for originalism generally; while original intent is indeed one theory in the originalist family, it has some extremely salient differences which has...
- TextualismTextualismTextualism is a formalist theory of statutory interpretation, holding that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or...