There are many misconceptions about all theories of interpretation. In no way is my theory, idea, or jurisprudential thought any more important or encompassing in todays day and age, than anyone elses. Enjoy!
One of the longest standing misconceptions is that originalism is new. An idea as old as Chief Justice Warren’s reign on the Supreme Court, though not entirely true, it is increasingly true that Originalism caught hold during this time. Yet, originalism is as old as time. It is the theory of using canons–rules of interpretation–that guide the reader to making a more informed decision. But, these kinds of interpretive theories, ones with great lengths of rules, are not so easily manageable against one’s own political or socioeconomic interest. This should go without saying. No Interpretive theory is 100% correct.
Originalism in itself is not the best practice for any particular judge, but as Scalia mentioned, “It is the lesser of two evils.” One evil being non-originalism (which isn’t evil, come on now), which gives judges a more subjective power on constitutional interpretation. Problematic to me personally? Sure. Wrong? Not so much, because that would be my subjective take on the theory.
Originalism can be found in reading a statute from today. When you read a statute enacted yesterday what language are you reading into the statute in 5-years? Likely the same language and meaning that was used in the first place. What about 50 years ago? 100? If you would use the language of the 5-year-old statute, why would you not use the language of the 50-year-old statute? Originalism looks to the language used, at the time it was enacted, to determine what the underlying intentions or meanings of that statute may carry today. Originalism, as it is defined, is one of the safest forms of interpretive theory. If you apply yourself to the rules of interpretation, doing your best to limit your prejudice, you can very well come to a legitimate conclusion on almost any constitutional issue. However, this is not even an in-depth version of how far originalism can go. See Reading Law, Antonin Scalia, and Bryan Garner. Including, but not limited to, abortion, same-sex marriage, executive powers, gun rights, and more. Two prominent legal scholars are relevant to this discussion. Erwin Chemerinsky, who’ve I’ve discussed in earlier blog posts, and Akhil Amar. Professor Amar is an originalist, yet, he is wholly progressive in his political leanings. He also believes that the constitutions meaning as demonstrated through the history and by analysis of the provisions, that we can ascertain the meanings of the constitution at the time of enactment–or at least have a better idea of what they meant–and still come to some of the prominent results we have today governing same-sex marriage, abortion, and the like.
Robert Bork was discussed in class today as a prominent figure in originalist circles. But Robert Bork is not the father of originalism and is more so the father of a strict-textualist movement. The movement that Supreme Court Justice Clarence Thomas most adheres. Strict-textualism is the “he can be president” language in the constitution meaning only men can be president. We know this isn’t true, though we have no evidence yet that it is true from past presidents. But we know that “he” doesn’t mean men only. Strict-textualism looks to the literalism of the words used. Strict-textualism also appear regularly as making decisions that are inherently more extreme and political.
Other interpretive theories include Thayerism, which is the theory that constitutionally enumerated rights (those written down), are fundamental and hold precedence over rights not enumerated. There are a few snags to this particular theory. Thayer interpreters say that we cannot answer the questions that are not enumerated, and raises a lot of particular issues for abortion, school choice, and same-sex marriage. Tough topics that need to be answered. Thayerism doesn’t answer these questions instead they exercise restraint and tell the legislature to deal with it. My philosophy follows a mixture of public policy+restraint+the tools originalism provides (canons), the idea that public policy should heavily influence our decision making on constitutional issues (See Breyer’s decision in District of Columbia v. Heller). For whatever it is worth, these theories can be used on a multitude of levels and introduce many interesting discussions for future constitutional lawyers. They are also inherently complex, and bring forth a lot of emotional and hardlined issues that shut people down. This complexity is meant to bolster discussion. I hope this does exactly that.
A Student's Blog on The Constitution 