June 16, 2005
Jason Samuel: Originalism
by Guest Contributor
June 16, 2005 11:18 PM
I thought I'd continue the jurisprudence thread I began with my last post, where I quoted Scalia's book, A Matter of Interpretation. Scalia's jurisprudence falls within the originalist category (originalism). He is more precisely a textualist (textualism). Stuart Buck (The Buck Stops Here) recently shared this, three thoughts on originalism.
Originalism and textualism aren't to be confused with strict constructionism or original (or legislative) intent.
Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989).
Lawrence Solum, Originalism as Transformative Politics, 63 Tulane Law Review 1599 (1989).
If an originalist strays from originalism when he deems it necessary, is that a little like being a little bit pregnant with a living Constitution?
Originalism can be approached via original intent, but determining intent of the founders or whomever is problematic. Then there is the approach of original meaning, like going back to old-time dictionaries, and channeling to find out what the words or sentences meant back then. Some originalist talk of original understanding, but it is not clear as to whose understanding: the Founders? the public? - which brings us back to intent and meaning. As to the then public, are we talking of white male voters only and their understanding of intent and/or meaning? This might require a lot of reading to determine what this public understood. Originalism is too simplistic, especially if it is utilized to protect ideology even though it may fly in the face of common sense today. Finding a consistent theory of interpretation and construction may be futile. Sometimes, doubt may be in order.