Talk:Originalism/Archive 1

Not a worldwide view

I think the article does not present a worldwide view of this concept. Originalism should be a concept to interpret any law in any country. However, in this article, especially at the section 'Pros and cons', it seems it only focus on U.S. issues. Only U.S. example is used, and, beofore my amendment, only U.S. term like 'Congress' is used, and pharse like 'Ninth Amendment' is used assuming the readers will understand it means the 'Ninth Amendment of U.S. Constitution'. I hope everyone who is familiar with this topic can help to revise it and add more worldwide example. Moreover, some general terms should be used instead of the U.S. ones. Salt 05:47, 13 March 2007 (UTC)

Developing the article

I changed "win widespread acceptance" to "return to widespread acceptance"; Justice Scalia has noted that original intent was judicial orthodoxy until roughly the middle of the 20th Century. A theory that used to be orthodoxy cannot "win" widespread acceptance, only return to it. --Simon Dodd 15:30, Apr 6, 2005 (IOT)

I've added a discussion section in which I've tried to - as neutrally as possible - lay out the logical underpinning of original intent and its practical effect. This change does effectively mandate some changes in the "consequences" section, which I'll try to get back to later, but I think that the content I've added thusfar should probabably be looked at again for POV. --Simon Dodd 10:40, Apr 7, 2005 (IOT)

I think that the reliance (without citation) on Scalia for your conclusion that original intent was "judicial orthodoxy" is problematic. If there is such a cite (not just for Scalia's quote, but some sort of empirical evidence thereof) please provide it. It will then read as historical summary rather than advocating a viewpoint. Otherwise, it appears to be a stretch to call originalism "orthodoxy" and, thus, to state that it seeks a "return to widespread acceptance." -- Brian 16:53, 30 August 2005 (UTC)

What did the framers think?

In the section on arguments opposed to originalism, the statement that The Founding Fathers were not originalists can be disputed; on what basis is this statement offered? The Framers were engaged in the business of writing a constitution, which is a fundamentally different business to interpreting it. The Framers also looked extensively to foreign law and precendent when designing the constitution - again, very revelant to writing a constitution, but (according to original intent) useless in interpreting a constitution. Originalism is concerned with what was meant and understood; ther are legitimate criticisms of the theory, and the "arguments against" section makes some of them, but I'm not sure that this one is accurate. --Simon Dodd 10:50, Apr 7, 2005 (IOT)

On what basis is this statement offered? No proof is given in this article. Also, I think pre-Constitution British law and precendent, for instance, can sometimes be useful in helping interpret a constitution as with that of the United States. --Authr 03:32, 2005 Apr 8 (UTC)

Oh, I absolutely agree - in determining what the language of the constitution meant to the people who wrote and ratified it, looking at pre-1787 British common law is of paramount importance, being that the 13 colonies were - whose colonies? - British colonies. Terms like "due process" and "cruel and unusual" had specific, definable meanings in law at the tmie, these were phrases that would have been understand to mean something. The Federalist Papers refer incessantly to foreign law, for that matter - and so foreign law at the time of ratification is also of relevance to its interpretation. The point isn't Americentrism, it's that the meaning of the text doesn't change, so anything that helps clarify the understood meaning of the text when it was ratified is of great value and importance, and anything written afterwards is not, in my view.--Simon Dodd 22:40, Apr 7, 2005 (IOT)

Further research has answered thus question. H. Jefferson Powell has demonstrated convincingly that the Framers were not in favor of original intent, but that they certainly supported original understanding. However, as this article has developed, taking in both forms, I think this problem has become moot. The criticism of original intent is now incorporated as part of the development of original understanding.Simon Dodd 22:30, 21 Jun 2005 (UTC)

Due process

"Terms like "due process" and "cruel and unusual" had specific, definable meanings in law at the time:" That's disputable; or rather it restates the nub of the dispute over consitutional interpretation. Proponents of textual constructionism would say that those terms by the very dint of being expressed generally can't be coherently thought of as encaptulating some kind of finite list of phenomona. I've never ever, ever heard of an English court claiming eg that the word 'cruel' is shorthand for a past set of ideas, or that because rough practice by the king's sheriffs was de rigour at the time of Magna Carta, that fact should have any bearing on whether in 1750, say, being beaten up by a government agent counts as due process. As a matter of history, English courts were constantly developing the concept of "due process" in the C18th and into the C19th, in cases such as 'Entick v Carrington'. I don't think there's any basis at all for saying that the concepts had 'specific' (by which you presumably mean static) content in common law at the time. - Dan

Faulty example

I see some problems with your example. If I understand correctly, a Strict Constructionist takes every word into account. Your example has Strict Constructionists actually ignoring parts of the statement. Allow me to demostrate.

A person may not be "subjected to cruel or unusual punishments, such as hanging by the neck".

First of all, "cruel or unusual punishments" is plural. Second of all, "such as" is not all inclusive. Thus, a Strict Constructionist would not assume that "hanging by the neck" is the only type of capital punishment that is unconstitutional, even if, as you say, that was the only form of capital punishment ever used at the time of ratification.

A Strict Constructionist would argue that any "punishment" that can be defined as either "cruel," "unusual," or both, would be unconstitutional. "Hanging by the neck" is merely one example, and was included in the clause as such.

In my view, Originalism and Strict Constructionism are distinct, but not in any point mutually exclusive. Rather, I believe they are two necessary parts of Constitutional interpretation. Authr

• As I see it, strict constructionism and originalism are both textualist approaches, but originalism is more concerned with the context which informed the writing of that text, while strict constructionism is more concerned with the actual words present in the text, which gives the originalist a little more freedom of interpretation. I will certainly yield that my example is cumbersome and somewhat inapt, but I felt that it was important to have some sort of illustration to show that these two philosophies do have important differences, which explain why, for example, Scalia and Rehnquist do not always reach the same conclusions. If someone wants to write a better example, that'd be great. :p --Simon Dodd 12:30, Apr 6, 2005 (IOT)

I think I'm getting a better picture. If I understand correctly, Originalists believe any errors made by the original authors which result in the text conveying something other than what they intended should be interpreted (and amended, I hope) to conform to what they intended. If the text does convey what the original authors intended, Originalism and Strict Constructionism will produce the same interpretation. Perhaps Strict Constructionists even reject the notion that the original authors made any mistakes in conveying what they meant. Authr 05:15, 2005 May 20 (UTC)

Neologism

It certainly qualifies as a neologism, but I dont have time or interest to research who actually coined it. That needs to be added. -SV|t 4 July 2005 19:34 (UTC)

I did some looking around, and this article attributes the term to "Paul Brest, in The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204, 204 (1980)". (at n1). I will add this to the article text now.Simon Dodd 6 July 2005 18:44 (UTC)

Done.Simon Dodd 6 July 2005 19:01 (UTC)

POV

I believe this article is subtly POV in favor of Originalism. To me it reads largely as an attempt to justify this doctrine, rather than merely discuss it. Note, for example, how various rebuttals are given to the "con" arguments, but none to the "pro" arguments. Note also that this article completely ignores/whitewashes the fact that Scalia and Thomas are (along with Rehnquist) the most conservative members of the court by far, and that Scalia is a strongly polarizing and controversial figure. This article also omits any discussion of the fundamental fact that "Originalism" and its variants [strict constructionism, etc.] have in practice been used as a way of providing a legal underpinning to support the views of the religious right -- whether or not the writers of this article agree with the views of the religious right, the use of Originalism as a justification of these views is undeniable, and must be discussed. There is also very little discussion of places where Scalia and Rehnquist have diverged from "Originalism" in order to support conservative viewpoints; the most recent example on the part of Scalia is his argument against medical marijuana and in favor of an expansive (i.e. plainly non-"Originalist") reading of the interstate commerce clause, despite voting in an opposite pattern when an Originalist argument worked in favor of conservative readings of the gun-free-school-zone and violence-against-women cases.Benwing 4 July 2005 23:32 (UTC)

I will certainly hold up my hand and say (I being the author of a good chunk of the article to date) that I'm a full convert to Originalism, and thus, if the POV is only subtly in favor of the theory, then that's great! ;) I do think that both this article and its prospective "sister article" - The Living Constitution - suffer from having not previously had a more sceptical editor to counterbalance my enthusiasm for the former and antipathy towards the latter. I fully accept the absence of the rebuttals to the "pro" arguments, and I would greatly welcome someone offering a rebuttal of the "pro" arguments just as I've rebutted the "anti" arguments. However, I want to emphasize that, in my view, the route to improvement is to add rebuttals of the pros, rather than to delete the existing rebuttals of the cons. I entirely agree with your note about Scalia not applying originalism thoroughly in all instances (this is noted in the existing text), but I do point out that Rehnquist is not, and has not (to my knowledge) ever claimed to be, an originalist. Lastly, the issues of Scalia's controversy can be, should be, and are, covered in the article Antonin Scalia. None of which, incidentally, is to disagree with much of what you've said, and I think the addition of virtually all of your points to the main text would be beneficial, and I'd encourage you to do so. :) Simon Dodd 6 July 2005 18:58 (UTC)

I don't have time to write a criticism section, but this article has some good criticism, I think. You should note, however, that the terms used in the article are controversial (see Constitution in exile, which I originated and helped write). Another critic is named Cass Sunstein. That's about all I know on the subject--most of the other authors I've read have been relatively pro-originalist, and I don't consider myself an expert on either side. Dave (talk) July 5, 2005 00:15 (UTC)

I will look into this.Simon Dodd 6 July 2005 18:58 (UTC)

More things needed to add neutrality and context (This would help understand more how Originalism really works, and clarify some of the real-world effects that this philosophy would have):

Discuss what Originalism would have to say about some well-known current and past issues in the Supreme Court:

• abortion, Roe v. Wade
• "separate but equal", Plessy v. Ferguson, Brown v. Board of Education
• constitutional right to a lawyer, Gideon v. Wainwright
• Bush v. Gore
• gay marriage, e.g. hypothetical case where a gay couple asserts that their constitutional rights to equal protection are violated

Benwing 08:44, 10 July 2005 (UTC)

I don't think it's even subtly biased in favor of Originalism; what bothers me more, however, is that it's very much a Scalia quotefest. More material from other sources is badly needed, as well as quotations from critics. --moof 12:45, 12 December 2005 (UTC)

Arguments against originalism

I reverted Authr's edits. Originalism is defined in this very article as "the view that interpretation of a written constitution is (or should be) consistent with what it was originally intended to mean by those who drafted and ratified it." It is therefore not simply limited to drafters. The question of what body constitutes the "ratifying" body (and how that intent is discovered) is a legitimate argument opposing originalism. Unended July 6, 2005 13:12 (UTC)

I was aware of that part of the article's definition of original intent (distinct from original meaning, another type of originalism as the article explains), and had also planned to edit it as per the reasoning given for my last edit. I suppose I will wait to see if anyone else wishes to comment. Let me quote the reasoning I gave: "[T]he only group of people who could change the Constitution according to their intent were those who drafted it; the ratifiers merely chose to accept or reject it." In other words, the ratifiers did not intend that the Constitution should mean anything, they merely understood it to mean something; I believe this falls under original meaning, not original intent. The intent of the ratifiers was simply to ratify or reject the Constitution. Also, there is no question as to what body constituted the ratifying body. Authr July 6, 2005 14:43 (UTC)

I'm not sure how you can suggest that ratifiers don't have an intent when they vote on the passage of a constitutional or statutory provision. Why wouldn't ratifiers "intend" for the Constitution on which they are voting to mean anything? How is the act of voting any different from the act of drafting? What is the difference between voting for a provision with the intent that it is understood to mean something and drafting a provision with the intent that it will be understood to mean something?

In any event, it doesn't matter. Limiting originalism to what drafters intended only opens up originalism for an even more damning criticism (which I have yet to include but will soon), that being why it matters at all what "drafters" intend, since the act of drafting is not even a legislative act and has no legislative significance. (One can draft until the cows come home. It's the act of voting and ratification that has significance for legislation.) I frankly don't care how originalism is defined. It isn't my philosophy, so I'm not going to suggest or argue about how its adherents define it. But, as currently defined, I think the criticism as it now stands is legitimate. Unended July 6, 2005 23:52 (UTC)

It seems you did not read my entire comment. I plainly stated that "the intent of the ratifiers was simply to ratify or reject the Constitution" (and they did not vote on provisions of the Constitution, they voted on the Constitution as a whole). The "intent" of the ratifiers to ratifiy the Constitution had no effect on the Constitution's meaning, and is therefore of no use to an interpretation based on original intent.

I would like to delete "and ratifiers" from the definition of original intent, and change "drafters" to "framers." Does anyone agree or disagree with this? Authr July 7, 2005 02:36 (UTC)

I simply fail to understand what distinction you are attempting to draw. In the first place, ratifiers did not simply vote on the whole constitution. The Amendments--the interpretation of which constitute a large part of the debate--were passed and ratified individually. (I also don't see how it matters otherwise, since I am at a loss as to why a ratifier cannot vote on the entire constitution on the basis of his intent that individual provisions be construed a certain way.) Second, I don't understand how the intent of the ratifiers has no effect on the Constitution's meaning, but the drafters' intent does. That is question begging. True, when a drafter drafts (or a speaker speaks), he intends his words to mean something. And when a reader reads (or a listener listens), he understands the words of the drafter (or speaker) to mean something. But ratification is emphatically not a passive exercise in reading and listening. It is an affirmative act, which carries with it an expression of intent. You seem to be under the impression that ratifiers cannot vote with the intent that a provision mean X. In other words, as a ratifier, I can vote in favor of a Constitutional Amendment with the intent that it mean (i.e., be construed and enforced consistent with) X. Is this not the same intent that drafters have? Unended July 7, 2005 03:30 (UTC)

Unended's comment isn't accurate. Originalism is defined "in this very article" as comprising several various views, original intent - i.e., "the view that interpretation of a written constitution is (or should be) consistent with what it was originally intended to mean by those who drafted and ratified it." - being only one of its forms, and the less common form, in point of fact. I think perhaps the text should be modified to show that it applies to one form only, rather than either being deleted altogether (per Authr) or left in situ (per Unended).63.134.128.4 6 July 2005 18:37 (UTC)

That originalism is defined in the article as "comprising several various views" is irrelevant to the comment I made, which was not inaccurate. The criticism as it stands should be understood to attack only the view to which it obviously applies, and there should be no need of further clarification. That said, I would probably not revert a clarification that the argument speaks to "original intent," although I may modify the clarification to ensure consistency with the oppositional argument. Unended July 6, 2005 23:52 (UTC)

IMHO, the following elements of the article do not present a NPOV and present the concept of Originalism in a negative light, suggesting it is a straw-man theory created for conservative purposes:

A neologism, "originalism" is similar to legalist traditionalism, and is popular among U.S. political conservatives; some opponents have charged that it is merely a form of Judicial Activism.

RUB 11:23, 27 July 2005 (NYT)

• I found that it is difficult to add or edit arguments and notes without renumbering the notes each time. To fix this, I've numbered the arguments so that each note can be identified according to its corresponding argument. fi99ig 17:08, 19 September 2005 (UTC)

More criticism

This article argues that originalism is a form of judicial activism. This article defends originalism against the charge.

Since both probably require subscriptions, I thought it would be useful to also link to excerpts here. Hope this helps with the neutrality issue. Dave (talk) July 7, 2005 12:20 (UTC)

The New York Times article is ridiculous, and has been roundly repudiated as remarkably silly. I have personally driven pencils through its heart in no fewer than five blogs; see, e.g., [1], [2]. See also Wikipedia Supreme Court entry, talk page. Orin S. Kerr's piece, however, is a wholly different matter; I will read, digest and borrow from. 63.134.128.4 7 July 2005 18:10 (UTC)

The two blog pieces basically make the same argument: "Gewirtz and Golder have shown only what everyone should already have known: that depending on how you define activism, different judges turn out to be activists or apostles of judicial restraint." That in and of itself is worth including in the article, as it indicates that the activism charge originalists make (one of their most important/favorite arguments) isn't worth much. Dave (talk) July 8, 2005 03:39 (UTC)

I strenuously disagree with the idea that originalism does - or even could - constitute Judicial activism. However, in the interests of compromise, I propose that we include a terse statement in this article to the effect that some critics of originalism have charged that it is judicial activism, direct readers to the article Judicial Activism, and then work on the judicial activism article to discuss the "originalism: judicial activism or not" question. Does this sound reasonable? Simon Dodd 8 July 2005 18:26 (UTC)

The article is about judicial restraint (i.e., self-regulation of federal courts' power of judicial review), the absence of which is often associated by conservatives with so-called "judicial activism." Scalia, in fact, often rants and raves about the Court's use of judicial review to strike down legislation as unconstitutional (see, e.g., Roper v. Simmons where Scalia complained loudly about the Court's strking down of "the people's law" empowering the State to execute juvenile offender citizens). So that Scalia has actually voted to strike down more "people's laws" than the so-called "activist" wing of the court is rather significant. Besides, everybody knows that "activist" is just a word reactionaries use to describe decisions they don't like and that it has no real principled application. (Indeed, it was used to describe the Kelo v. City of New London decision in which the Supreme Court actually did nothing at all.) That said, there is actually an entry on "judicial activism," and the facts contained with the NY Times article would probably best work there rather than here. Unended July 8, 2005 04:23 (UTC)

I certainly agree that Scalia is deferential to the legislative branches (this is exactly what made Matin Garbus' Courting Disaster such a laughably preposterous book). However, as previously noted, I think it's absolutely incorrect to conflate "activity" with "activism", and I therefore strongly disagree that the mere act of striking down legislation is necessarily activist or not. See previously-linked commentaries. I don't doubt that some people apply "activist judge" as an unspecific epithet (Pat Buchanan and Tom DeLay, for example, called the judges in the Schaivo controversey "activist", which is clearly preposterous; the "crime" of those Judges was that they did exactly what the law demanded - it would only have been "judicial activism" if they had bent the laws in the manner in which my more conservative friends desired), but I disagree that the term itself is meaningless. Just as the fact that Scalia doesn't always follow originalism to the letter in no way reflects on the theory itself (or, just as the behaviour of neither the rev. al sharpton nor the rev. pat robertson reflects on Christianity as a religion; just as the behaviour of Al Queda does not reflect on Islam as a religion), the common usage of the term doesn't devalue it or change its actual meaning. More broadly, you could say that you are who you are, not who people say you are. I also think it's ludicrous to assert that Kelo did nothing at all, but that's another debate entirely.Simon Dodd 8 July 2005 18:39 (UTC)

Your solution for merely mentioning the charge here and actually discussing it at judicial activism seems reasonable. Other criticisms can be found in the articles I linked to above (Constitution in exile stuff, etc.). Perhaps find arguments that originalism would block civil rights laws and other legislation non-originalists like (Endangered Species Act, Americans with Disabilities Act, the Drug War, etc.). Dave (talk) July 8, 2005 21:35 (UTC)

Okay, link to JA added in the main blurb (I also fixed some rather torturous language, and corrected a link to the article Conservatism). I've also put a stub into the JA article.Simon Dodd 02:04, 11 July 2005 (UTC)

Change in running order

I've moved pros and cons beneath the "discussion" section, but left it above the "consequences" section. This seems the most logical home for it, in the grounds that it seems rather odd to discuss the good and bad points of a theory before actually spelling out what the theory is, but it's reasonable to talk about pros and cons before launching into the "consequences" section.Simon Dodd 8 July 2005 17:38 (UTC)

Why are adherents of originalism editing the section on "arguments opposing originalsm"?

I'm just wondering. It's not that everybody doesn't have a right to edit any Wikipedia ariticle, but there are two sections in this article which are set up to convey two sides--one in support and one in opposition. Why are supporters of originalism so set on editing the sections providing arguments opposing originalism? It can't be about neutral point of view because the very subsection is designated as argument. Let the opposing side argue for itself. Unended July 9, 2005 08:13 (UTC)

I'm certainly an adherent to the theory, but that isn't to say that I can't recognize the valid arguments made against it. Are there particular edits that I've made that strike you as being an attempt to somehow dimish the "against" section? Certainly, I've added footnotes providing counter-argument, as I would encourage people opposd to Originalism, to add to the "pros" section, but I've also added some material which specifically actually bolsters the case against originalism, and made some changes to make that section more effective, to flow better, IMO. I'm confident enough about the strengths of the theory that I think the best arguments that can be made against it don't come close to threatening the theory, and so I say let's bring 'em on. ;) Simon Dodd 9 July 2005 18:05 (UTC)

Good answer. I wish everyone were so magnanimous. Dave (talk) July 9, 2005 19:00 (UTC)

"True" originalism

At 16:58, 16 July 2005, Toryoidal edits in: "Originalism should not be confused with "True Originalism," which claims interpretation of U.S. Constitution should be based on principles of British Law". The page linked to doesn't yet exist, and a quick search has revealed no particular usage of the term "true originalism" (indeed, this page is the number 1 hit, which doesn't fill me with much confidence that this is a valid term). For the time being, I've removed this clause; Toryoidal, could you create the page for "true originalism", or discuss / link to info on this view on the talk page. If the statement is valid, it has a place in the article, but as yet I don't see any indication that it is. Simon Dodd 18:55, 18 July 2005 (UTC)

New Sunstein article

Cass Sunstein wrote a new article with a section on Originalism. Since he's an opponent of the movement, I thought it could help the article's balance if we included parts of it.

Sunstein says that originalist goals include

the overruling of Roe v. Wade, the strengthening of presidential power, the elimination of the right of privacy, the invalidation of affirmative action, the creation of new limitations on congressional power to regulate the economy, and the strengthening of property rights... serious fundamentalism [Sunstein's word for originalism] would change the country as we know it. It would mean that the federal government could discriminate on the basis of race and sex. It would eliminate the right of privacy. It might well mean that states could establish official churches. It might even raise serious questions about the Federal Communications Commission and the Clean Air Act. It could do a lot more.

At the same time, there are a number of important areas in which fundamentalists seem to follow their own partisan convictions rather than the original understanding. To take just one example, fundamentalists (including Scalia and Thomas) have voted in favor of striking down affirmative action programs without even bothering to investigate the question of whether such programs are inconsistent with the original understanding of the Fourteenth Amendment. (They aren't.) Here we can find false fundamentalism hiding behind the Constitution to impose judges' own political values. Unfortunately, false fundamentalism is not hard to find.

The article is available with a subscription here ("Minimal Appeal, The New Republic, 8/1/05). I haven't been following this article, so I don't know where this should be included.

Enjoy, Dave (talk) 04:22, July 24, 2005 (UTC)

Conflation of powers and rights

This article continues the long history of negligently or intentionally conflating governmental powers and individuals' rights. It's such a fundamental concept for any understanding of the constitutional framework of the federal and state governments of the United States, it seems that the failure to differentiate the two reveals either a woeful lack of civic education or an intentional attempt to misframe the debate.

One could quickly understand this by just reading the text of the Ninth, Tenth, and Fourteenth Amendments. But, to be clear, despite centuries of "states' rights" BS, neither the state nor federal government have "rights."

Rather, the citizens of a state grant certain "powers" to their state government, and the state government exercises those powers on behalf of the citizenry as a collective body. In our federal framework, every citizen of a state is also a citizen of the United States. The citizens of the United States also granted certain powers to the federal government, and the federal government exercises those powers on behalf of all U.S. citizens as a collective -- not as a collection of separate state citizens. However, as made clear in the Tenth Amendment, the citizens of the United States granted the federal government only certain powers (generally the ones viewed as essential to a common economy, defense, foreign policy, etc.). But the Tenth Amendment doesn't affirmatively grant all remaining powers to the state governments -- how could it!? Rather it neutrally states that those powers not granted to the federal government are reserved to the citizens of each state (from whom any state governmental authority must flow) and the state governments (obviously to the extent that the citizens of that state choose to grant that reserved power to the state government). In sum, powers are exercised on behalf of "We the People."

At the same time, individuals have "rights." At least under the federal Constitution, such rights are all negative rights -- the right to do X without (unreasonable) interference by the government. (Some state constitutions also grant positive rights, also called "entitlements" -- rather than non-interference with private actions, entitlements affirmatively require the government to provide something, such as a public education, to its citizens. Because we're talking about the federal Constitution, entitlements are beyond this discussion.) In contrast to powers, . In sum, rights are the protection of "I the individual" against "We the People." As stated clearly in the Ninth Amendment, the listing of certain rights in the First through Eighth Amendments (or in other amendments thereafter) must NOT be construed to deny or disparage rights not listed (i.e., if no one thought to list them -- either because they seemed too obvious to even write down, or they were too difficult to put into exact words, or they just forgot -- that doesn't mean that an individual doesn't have a right not listed).

Prior to the Fourteenth Amendment, the federal Constitution only concerned itself with the powers of the federal government, protecting spheres of exclusive federal power against overexertion of state powers, and protecting individual rights from overexertion of the federal government's powers. The states were also supposed to protect individual rights from overexertion of governmental power (as well as maintain the states' spheres of power against overexertion of federal power). The 14th radically changed that structure by granting power to the federal government to also protect a person's individual rights against overexertion of state powers.

The first instance of conflation powers and rights is the juxtaposition of the quote from Justice Curtis in his Dred Scott dissent with the quote from Justice Scalia in Romer as if they were equivalent. Justice Curtis objected to the extension of governmental power to the detriment of individual rights. Justice Scalia objected to the finding of individual rights under the federal Constitution that prohibited the extension of state governmental power. The only way to view the two quotes as equivalent is to conflate powers with rights -- to say, in effect, that when a federal court protects the rights of an individual, it is really overextending federal power. But the power to protect individual rights against infringement by a state government was expressly granted to the federal government by the 14th Amendment. Justice Scalia is a very intelligent jurist, and I doubt he would view these quotes as being of the same cloth. In Romer, Scalia knew he was arguing against the existence of a right as found by the majority. He admittedly has a much narrower view (an "original meaning" view limited to rights as generally understood in 1787-89, 1789-91, and 1866-68), but certainly if he agreed that a protected right had been violated, he would no doubt agree with the authority of the federal courts to strike down the state's law, court decision, or other action.

The second major conflation of the powers and rights occurs in the sentence:

"They argue that - since U.S. v. Darby, 312 U.S. 100 (1941), in which Justice Stone eviscerated the 10th Amendment - the Court has increasingly taken to making rulings (see, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973); Morrison v. Olson, 487 U. S. 654 (1988); Lawrence v. Texas, 539 U. S. 558 (2003); Roper v. Simmons, Docket No. 03—633) 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 taking into account "the context of international jurisprudence"), and then attempted to justify that determination through a "creative reading" of the text."

Here there are quotation marks, but not citations. And the sentence begins with "They argue" but doesn't identify who "they" are or where they said this drivel. Maybe Justice Scalia and other advocates are really this dense or disingenuous, but I doubt it.

Darby (1941) was a powers case, pure and simple. The question was whether the federal government had the power, under the commerce clause, to prohibit interstate sale of goods manufactured by employees at wages below the minimum wage, and to prohibit the payment of wages less than the minimum wage to employees engaged in manufacturing goods for interstate commerce. The Court found that the minimum wage requirements of the Fair Labor Standards Act were within the commerce power granted to the federal government. To say that this "eviscerated" the 10th Amendment (which, as noted above, merely states the truism that the citizens retained the powers not granted to the federal government and could grant those powers to their respective states) is a rather outlandish statement that should have a citation, unless this is merely the personal opinion of the author based on the BS idea that the 10th Amendment protected "states' rights."

The sentence then goes on to list several cases that were solely about rights (mainly the right to privacy / autonomy that the majority in each case held to be the implicit individual right that underlies many of the enumerated rights in the Bill of Rights and that is a fundamental "liberty" protected by the 14th): Griswold (the right to learn about and obtain contraception without state interference); Roe (the right of a woman to control over her own body, including the right to terminate pregnancy, but balanced against the increasing power and interest of the state with respect to the potential citizen, but subject always to the paramount rights of the actual citizen to protect her health and safety without governmental interference); and Lawrence (the rights of consenting adults to engage in intimate conduct in private without governmental interference).

The Roper case involved the enumerated Eighth Amendment right to be free from "cruel and unusual punishment" (which is included within the rights protected by the 14th as well). In Roper, the majority held that an "evolving consensus" has now determined it is "cruel and unusual punishment" for a state (or the federal government) to execute a person for a crime committed while the person was a minor (i.e. under age 18). This is an excellent case for contrasting the starkest contrast between the evolving "living Constitution" view and the "originalist" view. But it is out of place to just be listed with, and thereby conflated with the issues in, Darby (limits of federal power), and Griswold, Roe & Lawrence (implicit right to privacy).

I have no idea why Morrison v. Olson (1988) is listed in this sentence. Justice Scalia did dissent in such case and on "originalist" grounds, but the case had nothing to do with the scope of federal powers (like Darby) or the scope of federally protected rights. Instead, the case turned on the proper allocation and exercise of federal authority (the "separation of powers"). It is really out of place in a list with Darby (limits of federal power), Griswold Roe & Lawrence (implicit right to privacy), and Roper (meaning of right against "cruel and unusual punishment").

Listing these cases (which also happen to be political hot button cases) together makes the "originalist" approach appear to be just a political approach. To allow for an understanding of "originalism" in a legal framework and allow for the readers to draw their own conclusions about whether it is really political or not, these groups of cased should intead be treated separately to contrast "originalism" with the majority interpretations in these areas.

For example, one subsection on originalist critiques of Darby and other commerce power interpretations. (Although I note that the decision in Lopez that so many say was a triumph for originalism and rollback of the broader commerce power interpretation was not all it was cracked up to be -- the law in Lopez was precisely the kind of law that Justice Marshall [no originalist he] said would be unconstitutional in US v. Bass, 404 U.S. 336 (1971), in which the law skated close to the Lopez problem, but was ambiguous and could be read in a narrower way that was upheld -- interestingly, unless I missed it, neither the majority nor the dissent cited Bass, for whatever reasons each side may have had).

Another subsection could discuss the originalist critique of implicit rights and the meaning of the Ninth Amendment, specifically in connection with the right to privacy cases.

Another subsection could discuss the originalist approach to interpreting the enumerated rights -- what is "cruel and unusual punishment"? what is an "unreasonable search and seizure"? etc. (and this would be where the counter-critique of Bush v. Gore's novel interpretation of "equal protection" could be appropriately discussed) (and I use the word "novel" as neutrally as possible here; the majority explicitly recognized that they were extending the application of equal protection to a new area, and the majority explicitly stated that the decision was specific to the those particular facts and of no effective precedential value -- i.e. "novel" in the sense of new and not to be used again).

A final discussion could then address the originalist understanding of the separation of intra-federal powers, such as Justice Scalia's dissent in Morrison v. Olson (1988).

Such an approach would carefully look at the originalist interpretative approach in a legal framework, rather than lumping together cases in a manner that implies a political (rather than legal) agenda.

Deletion of Stevens quotation

Simon, could you please say more in defense of your deletion of the Stevens quotation. It certainly seems relevant to the topic, in that it discusses a common criticism of Originalism, namely that it can not (or will not) be consistently applied. Since Originalists trumpet the non-arbitrariness of their method, this seems like a reasonable criticism if true. In justifying your deletion you write: "Justice Stevens is hardly an originalist. His comments are inaccurate, and disingenuous at best." I would say two things in response. First, the fact that Stevens is not an originalist strikes me as being entirely irrelevant. Surely non-originalists are allowed to contribute to the debate on originalism! Second, on the issue of its being inaccurate and disingenuous, I think you owe us a defense of this claim _before_ deleting the passage. If your problem is with this type of criticism in general, why not simply address it in the notes to argument O6 rather than removing the quote? fi99ig 16:15, 10 November 2005 (UTC)

My objection was multifaceted. First, it was an exceedingly long quote surrounded by several very short quotes. Second, it was a quote which was not discussing originalism (nor, taken in context, was it part of an originalist analysis), but rather, criticizing its inconsistent application by one of its practitioners (a matter already addressed elsewhere in the text as inadequate basis for criticizing the theory); placed amidst a series of quotes directly relevant to the article, it seemed out of place. Third, even were the quote to be important enough to include, it would seem better placed, for example, in what is now Pros and cons n.11. However, I'm not going to disagree with you that it is perfectly reasonable to include criticism of the theory and its practise, as long as it's made clear which is which. I have therefore restored the quote in part (edited for brevity), and related it to Pros and cons n.11. Simon Dodd 20:57, 10 November 2005 (UTC)

Thanks for restoring the quotation, Simon. I don't know if this is the place to get into a debate, but I have to disagree with you about the relevance of the quotation (and the response at fn.11). It seems to me that one of the central arguments against originalism is that its practitioners must inevitably depend on their own values, both because the original meaning often cannot be precisely determined and because certain value terms are inherently ambiguous. (I'm relying on some of the arguments Balkin has developed on this topic.) If one takes this argument seriously, then the Stevens quotation is indicative not of a failure to apply the methodology, but rather a failure built into the methodology. I'm sure you won't agree with this, but do you at least see why the quotation might seem more relevant than you suggest? Best, fi99ig 22:29, 10 November 2005 (UTC)

I hadn't actually read this before making changes to the section "differentiated from strict construction" earlier, in which I noted (or, at least, strongly implied) one of the points you note here, that Originalism does not do all the work for a Judge; their need to depend on their own intellect and "their own values, both because the original meaning often cannot be precisely determined" and because "Originalism is a theory of interpretation, not construction." (Something else that is missing from this article, and I suspect will have to remain missing from this article, but which directly relates to this point is how and whether originalists take stare decisis into account). In any instance, you're right that I don't agree with you that this represents an inherent problem within Originalism (still less a fatal one), but that isn't to say that this view shouldn't be represented in this article. Perhaps what is needed, instead of us trying to beat the Stevens quotes into a shape that will fit into the quotations section, or the pros and cons section, is to simply go the whole hog and have a "criticisms" section, in which the Stevens quote could be contextualized, and where it would certainly seem at home.--Simon Dodd 01:23, 11 November 2005 (UTC)

Numbering problem

I had meant to change the Pros and cons section and its footnotes to automatic numeration, but clearly I've done something wrong, because they're all numbered "1"! I've tried various ways to fix this, to no avail - anyone fancy helping out?--Simon Dodd 21:00, 10 November 2005 (UTC)

Fixed.

Consequences

I strongly object to Simon's changes in the Consequences section, changes which quite obviously violate NPOV. The use of "inculcated," e.g., presumes that the Living Constitution viewpoint came to prominence through non-rational means. It thus seems to presuppose that Originalism is correct. The same goes for the claim that laws schools teach the Living Constitution viewpoint to further liberal goals. Where is the evidence supporting this liberal agenda? Isn't it possible that they promote a Living Constitution because they believe it to be the correct view? Simon, unless you can supply convincing evidence for this supposed liberal agenda, I will remove your insertions as violations of NPOV. fi99ig 00:55, 11 November 2005 (UTC)

Changes removed. I was about to go off in search of various citations to demonstrate the overwhelmingly liberal orientation of the legal academy, but on reflection, it strikes me that the entire disputed paragraph is actually irrelevant to the section in which it was located. A discussion, however brief, of the current ideological proclivities of the legal academy, seems to me to be only very tenuously connected to a section on the practical consequences of the adoption of Originalism as a prerequisite for appointment to the Federal Judiciary. Consequentially, I have simply excised the entire paragraph in dispute as non-germane, and dumped the Scalia quote (which I rather like) into the "quotes" section. --Simon Dodd 01:05, 11 November 2005 (UTC)

Thank you again for making the changes. But just to be clear, finding evidence of the "overwhelmingly liberal orientation of the legal academy" would not have sufficed. I don't deny that most law profs (and most profs in general) are liberal. But your claim was that there was an agenda to promote a model of interpretation not on its merits but in order to support a political cause. That's a much stronger claim, and would have required much more substantial evidence to pass NPOV muster. fi99ig 01:14, 11 November 2005 (UTC)

Everyone thinks their cause is just. ;) Actually, I find the crit viewpoint fascinating, albeit not convincing. In expanding Legal formalism, I quoted Sammy Adelman & Ken Foster's description from 1 Critical Lawyer's Handbook 7 of the characteristics of Formalism (and, by extension, originalism) as offering a great argument for Formalism (something I suspect they would be horrified by). The point I'm trying to drive at here (if there is one) is that I think that the living Constitution approach is necessarily about results more than it is process, because I'm not sure what else except their views on what is expedient or moral can tell a Judge what a provision means once he rejects text and tradition. However, that, to some extent, is another article. ;)--Simon Dodd 01:31, 11 November 2005 (UTC)

Original Understanding

Where is the "original understanding" cited as a separate brand on originalism? I have always heard it used interchangeably with "original meaning." That is certainly how Robert Bork appears to use it in his book, "The Tempting of America." -- 69.19.2.36 00:40, 22 November 2005 (UTC)

Good question. Now that you ask, I don't know that I remember where, but I have certainly seen it cited as a separate theory, in the context of differentiating between whether the understanding of the framers or the ratifiers is authoritative - a question, of course, which is irrelevant to original meaning. I need to look into that. Simon Dodd 02:20, 23 November 2005 (UTC)

Ninth Amendment

There are a number of originalist theories concerning the Ninth Amendment. See:

• Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2004)
• Thomas B. McAffee, The Original Meaning of the Ninth Amendment, 90 Colum. L. Rev. 1215 (1990)
• Kurt T. Lash, The Lost Original Meaning of the Ninth Amendment, 83 Tex. L. Rev. 331 (2004)
• Russell Caplan, The History and the Meaning of the Ninth Amendment, 69 Va. L. Rev. 223 (1983)

I think that this "argument against originalism," being wholly inaccurate, should be removed. -- WikiAce 01:21, 22 November 2005 (UTC)

I agree with you that the criticsm is invalid, but I disagree with it being removed from the list of "opposing arguments." I strongly dispute several of the arguments in the "con" section, but rightly or wrongly, validly or not, these are arguments that are routinely raised in opposition to originalism. Simply ignoring them - taking them out of the article - is not only unhelpful, but borderline violation of NPOV. As a result, my approach to this article has been to include rebuttal points in footnotes to the "con" points with which I disagree (and, in turn, people who don't like originalism have offered interesting rebuttal points in footnotes to the "pro" section). I think this is the best approach; in my view, either ignoring the criticisms entirely, or leaving them in but unrebutted are equally bad in terms of producing a fair, balanced and NPOV article. Therefore, I propose one of two possible courses of action: either insert those articles into the appropriate footnote (n.40, I think?), or alternatively, insert those articles into a new section of this article under a new subheader, "Originalist theories of the ninth amendment," and link to that from the footnote. Which course is the right one will depend, I suppose, on how dense the footnote is getting by now. ;) Simon Dodd 16:35, 22 November 2005 (UTC)

By the way, a more substantive point: Randy Barnett's book (and his essay The Ninth Amendment: it means what it says) stand in absolute opposition to the propositions advanced by the other three essays you list. Barnett (like JD Droddy) offers an originalist theory of why the ninth amendment does protect unenumerated rights; the other authors offer theories in support of the more conventional originalist view that the ninth amendment is a federalism provision. This division of opinion, in itself, tends to militate in favor of leaving the disputed con is the list, even if for no better reason than introducing the subject. Simon Dodd 16:38, 22 November 2005 (UTC)

How many people actually read footnotes? I think it might be better to put the rebuttal right next to the claim. WikiAce 07:20, 23 November 2005 (UTC)

I don't disagree, I just couldn't find any particuarly attractive way to do that; I recently moved a lot more material out of the main article into the footnotes, which I think improves the flow of the article, but it does have the effect of washing out the rebuttal footnotes. If you can cleanly move the rebuttal points out of footnotes and into the main section, feel free. :p Simon Dodd 14:03, 23 November 2005 (UTC)

Here's another example: "It could be argued — as, for example, Justice Breyer has — that constitutions are meant to endure over time, and in order to do so, their interpretation must therefore be more flexible and responsive to changing circumstances than the amendment process is."

This objection makes no sense. It's Living Constitutionalists who constantly place more and more restrictions on the democratic process. The original Constitution is certainly more flexible than the Living Constitution, 90% of the time.

Anyway, the whole point to the Bill of Rights was to protect against future majorities. -- WikiAce 07:20, 23 November 2005 (UTC)

I don't disagree with any of that, but again - Breyer's claim may be preposterous, but it is an objection that is raised, and believe it or not, Breyer's view is orthodoxy at this point: when your kids are taught about the Constitution in school, they are taught that it is a living document. The article can't simply ignore the criticisms, no matter how preposterous - it must confront them head on. Simon Dodd 14:03, 23 November 2005 (UTC)

The Ninth Amendment argument is not "wholly inaccurate," in that the plain text of it contradicts the explicit position of self-identifying "originalists" who claim that rights about which the constitution is "silent" (i.e., unenumerated rights) should never be protected by the judiciary. It is true that, as the articles you cite point out, the framers believed that a Bill of Rights, in general, was unnecessary in view of the fact that the federal government was one of delegated powers (and hence that any power not given it was denied it), but the political winds forced their hand. As a result, they had to enumerate rights which could not be violated. As another result, they needed a Ninth Amendment to dispel the notion that these explicit denials of power somehow conferred power to act if not explicitly prohibited. Of course, what creates all the controversy is the 14th Amendment, which radically changed the nature of the federal-state relationship and hence the "original intent" of the entire Bill of Rights by incorporating them and applying them against the States, including the Ninth Amendment. All originalists, therefore, have no business looking to the founders to interpret any of the Bill of Rights, since they were effectively re-ratified with a different view by the adoption of the 14th Amendment.Unended 05:27, 13 December 2005 (UTC)

The Ninth Amendment can not be sensibly "incorporated" any more than the Tenth Amendment. It is a rule of construction concerning federal power. Nor was this knowledge in any way lost on the generation that adopted the Fourteenth Amendment. That's why the article's framers principally referred to the "first eight amendments" of the Bill of Rights. -- WikiAce 22:29, 14 December 2005 (UTC)

The Ninth Amendment is more than a "rule of construction." It explicitly protects "rights" from infringement by the government. The fact that it doesn't explicitly state which rights are protected is of no matter. In fact, that's the very point. Nonetheless, it is undoubtedly and uncontroversially a substantive provision. If you feel you must, please elaborate on the framers of the Fourteenth Amendment's pincipal reference to the "first eight amendments" of the Bill of Rights. Such references wouldn't be surprising at all, however, because those were amendments were drafted at a high level of specificity. That doesn't mean, and no serious interpreation of history would take it to mean, that the Ninth Amendment was not to be incorporated by the 14th. After all, the 14th Amendment was designed to restrict the power of the States such that they would be prohibited from acting in any way that the federal government was prohibited from acting. That was the point of the privileges and immunities clause. Anybody who suggests that the 14th Amendment was not meant to limit the States to the same extent as the federal government is a propagandist or a fool. Unended 07:25, 23 February 2006 (UTC)

Um, the Ninth Amendment protects rights from being denied or disparaged on account of the Bill of Rights. That is a rule of construction. To "deny or disparage" would be to make worse off than before, not to miss out on getting any new form of protection.

The Fourteenth Amendment was not understood to incorporate the Ninth Amendment because it, along with the Tenth Amendment, was understood as a federalism provision protecting the rights of the states. See Kurt Lash's two pieces listed above. John Bingham repeatedly spoke of the "first eight amendments," not the first nine amendments, because it continued to hold that meaning even after the Civil War.

The Ninth Amendment deals with the enumerated powers scheme. That undoubtedly does not apply to the states. -- 206.71.102.12 19:15, 2 July 2006 (UTC)

The article must not "confront" anything. It must represent all views from the neutral point of view. ⟳ausa کui ^× 21:12, 12 December 2005 (UTC)

Ryan, I think you may be getting excessively hung up on the term "confront," by which I merely mean, it should neither be ignored nor glossed over. I'm not sure how else one might discuss the subject from the NPOV without discussing common misperceptions; for example, many people who visit this article may well be operating under the misperception that Originalism and Original intent are synonyms. They aren't. Is the NPOV served by not discussing (and dismissing) the difference? In order to serve NPOV, fact must be sorted from fiction, in as neutral and fair-handed a way as possible. Simon Dodd 04:22, 13 December 2005 (UTC)

Civil Rights Act

"Civil rights act wasn't passed pursuant to the commerce clause, but rather, the fourteenth amendment."

The private discrimination portions of the Civil Rights Act of 1964 were sustained on Commerce Clause grounds. See Katzenbach v. McClung and Heart of Atlanta Motel. A Fourteenth Amendment argument was advanced by only one justice, and is hard to even take seriously, given that the amendment clearly limits only state action, and protection of the laws. -- WikiAce 10:47, 26 November 2005 (UTC)

Justice Sutherland

Is his quote really appropriate for this page? It's not just that he was a non-originalist... it's that he was a blatant judicial activist, who was actually invoking natural law to strike down a business regulation in the very opinion the quote comes from. -- WikiAce 11:25, 26 November 2005 (UTC)

Edits by Ryan Delaney

Ryan's revertions have been themselves reverted. Why were a few minor changes, including one which literally excised the word "and" where it had no business being, which had zero substantive effect on the content of the article, reverted? Simon Dodd 00:34, 16 December 2005 (UTC)

Originalism is often, and inaccurately, used as an interchangable synonym for

I think this need would a citation, or it is original research. ⟳ausa کui ^× 02:10, 16 December 2005 (UTC)

First, I presume that you now agree that the word "and" didn't belong in place, and will let that edit stand. Second, what is is that you're asking for a citation for? That the terms are sometimes used interchangably (it seems hard to believe that anyone who hasn't been asleep since Sandra Day O'Connor announced here retirement isn't aware that a lot of foot-soldiers on the right, and the President of the United States, for that matter, have used the terms "originalism" and "strict constructionists" as buzzwords, without any real comprehension as to what they mean or why they're different)? Or that they mean different things? I mean, it's a pretty far stretch to assert that the statement that originalism and strict construction are different theories "amount[s] to a 'novel narrative or historical interpretation'", as Jimbo Wales' original research policy formulation puts it. Simon Dodd 14:58, 16 December 2005 (UTC)

The thing is, when you say that some people are wrong to use the words interchangably, you would have to provide an explanation for why they are wrong to do so. But here's the rub: When you're talking about word meanings in natural language, you're talking about something that is inherently subjective. You can't be objectively wrong about word meanings in English. You can only use the words inconsistently with how they are used in other circles. That means that when you say one usage of the word is "wrong" you have to explain your point of reference. In this case, I think the problem could be solved by citing someone who gives a specific academic definition of the terms that would show them to be incompatible. I would like to stress that I am not claiming that what you are saying here is false; I am saying that it hurts the article to say this and then leave it unsubstantiated. ⟳ausa کui ^× 22:25, 19 December 2005 (UTC)

Ryan, you're a chess player, right? You wouldn't suggest, presumably, that someone cite sources to explain why you could not describe the move 1. e4 e5 2. f4 as a Sicilian Defence. Why not? After all, "[y]ou can't be objectively wrong about word meanings in English," right? The obvious answer is because King's Gambit and Sicilian Defence are two completely different opening strategies, and even if a layman chooses to utter the terms "inconsistently with how they are used in other circles" (see plain meaning rule), they are none-the-less terms of art which have specific meaning in chess terminology, and that meaning is the correct meaning.

This article is no different. Strict construction is a theory of how a court should apply the meaning of law to a given case or controversy; Originalism is a theory of how a court should determine the meaning of the law in the first place. Obviously you need to know what a law actually says (which is where originalism and textualism come in) before you can work out how that law applies to a specific case (which is where theories of construction come in); while there is overlap between the two (usually insofar as construction isn't always necessary, since it will be immediately and incontrovertably obvious how the law applies to a case), but you must surely see that suggesting that the two mean the same thing is like saying that nails and houses are the same thing, because you can't build a house without nails. Or, more artistically, you can't paint art without paint, but - unless you're a Jackson Pollock fan - paint is not art. Simon Dodd 14:39, 20 December 2005 (UTC)

I could find a citation for 1. e4 c5 being the Sicilian defence in about 10 seconds with google. That many knowledgable people use words incorrectly is a controversial thing to say, so it should have a citation. Are you unable to find a citation for it? Then it's original research. This is black and white. ⟳ausa کui ^× 22:18, 20 December 2005 (UTC)

Hang on, I thought your objection - as implied by your previous post - was that the part you objected to as being uncited was that there was a difference between Originalism and Strict construction? Now you're suggesting that what you want to be supported by citation is that people use the terms interchangably? While suggesting citation for either is utterly redundant - for the same reason that saying an Apple is not an Orange is not original research - there are already four such citations included in that section. So let's be entirely clear. Which contention -- if stating a fact can be called as much -- do you want supported by citation: that originalism and strict construction are different, or that some people use the terms incorrectly? Simon Dodd 00:02, 21 December 2005 (UTC)

grammar & fundamental criticism

hi!

as i'm not a native speaker, i'd welcome any changes in grammar, spelling or style regarding my added paragraph on the first page. also, please feel free to contact me by mail (owitt@gmx.net) or on this page regarding the content.

thank you!

"Some opponents charge that originalism is a form of judicial activism for one or more of the follwing reasons:

- because it is often hostile to precedent,

- because people nowadays lack the possiblity of asking each and every single person within the group that once has supported a specific bill what their intentions had been - with regard to a certain issue at stake as well as in general. Because of the inability to do so, there is the danger that originalist judges disenfranchise visionary or centrist Parliament members from back then who, if the wording had well and truly reflected people's understanding of the bill or the opinion of some person authoring a press release at that time, would have refrained from voting for that law because they actually had preferred (and maybe quietly urged for) a more general wording of the bill that left certain issues open for interpretation and progress. Thus, originalism is accused of interpreting laws in a way that even a long time ago could well have represented the opinion of the Parliament's minority."

I've removed these edits, for several reasons:

1. As discussed above (see my exchange with Dave and Unended, under More criticism, above at July 7, 2005 12:20 onwards), for the sake of brevity and clarity, the question of originalism as a form of judicial activism is raised briefly in this article, with a link to judicial activism where more expansive comment on the matter is better facilitated.
2. Second, even if we were going to move this discussion back into the Originalism article, if you're going to discuss it at this sort of length, it should be discussed under its own header, not in a frontmatter which is already (albeit necessarily) too long, in my view.
3. Lastly, the substantive content you offer - and I realize and give deference to your note that English isn't your primary language - doesn't really make sense on its own terms, being an extremely convoluted way to make a point that really doesn't have a great deal of merit, in my view.

Any one of these problems alone would merit at least discussion (the third, obviously, being very much an open subject for debate), but all three taken together demands not only dicussion, but swift excise in the meantime. I think that this material should be discussed at talk:judicial activism and included within the context of that article as an expansion of the comments available there. Simon Dodd 01:08, 12 January 2006 (UTC)

No, I'm not terribly fond of having a sub-section of a Subway sub. OW

Recent edit...

This seems very out of place:

Opponents charge that originalism is a form of judicial activism because people nowadays lack the possiblity of asking each and every single person within the group that once has voted for a bill what their intentions had been - with regard to a certain issue at stake as well as in general. Because of the inability to do so, the problem arises that originalist judges tend to disenfranchise visionary or centrist Parliament members from those days who, if the wording had well and truly reflected either people's understanding of the bill or the opinion of some person authoring a press release at that time, would have refrained from voting for that law because they actually had preferred (and maybe quietly urged for) a more general wording of the bill that left certain issues open for interpretation and progress. Thus, originalism is accused of interpreting laws in a way that even a long time ago could well have represented the opinion of the Parliament's minority.

The term 'originalism' is usually used within the context of U.S. constitutional interpretation, and does not necessarily involve original intent.

Also, is there a source for this argument? -- 69.19.2.36 23:28, 21 January 2006 (UTC)

---

Thank you for asking first and maybe shooting later... ;-)

Regarding your first comment:

a) You're right about that, but can't all articles and amendments be called "laws" as well?

b) Since it does not necessarily have to involve "original intent", I added "people's understanding of the bill". If you are living during a certain time period, it's understandable that one tends to think, "Oh, that specific approach is probably covered by that bill", but that's mainly because of the surroundings the individual happens to live in - he just lacks vision and an open mind. Shouldn't be the fault of people living 200 years later, in my opinion.

Regarding your question: Yep, that would be me. Creating something. :-) Could also be Bob Gale who wrote Universal's "Back to the Future". Who knows what the outcome would have been if Marty and his mom had hooked up... ;-)

Your president who formerly hang around with Disney's Silver Screen crowd, as I've heard, will certainly understand. By the way, when he was doing this press interview while my new chancellor Angela Merkel from Germany was being asked a question, he made those funny Beavis-like sounds indicating that he did not like my former chancellor, which is sad. (But never mind.)

Best wishes,

owitt@gmx.net

Footnotes

The numbering of the footnotes appears to be off, leading to confusion. MS

I will try to look at this tommorow; I did leave a note at the head of the text warning people to be careful when editing footnotes, because I foresaw precisely this event. ;) I don't have time tonight, but I'll try to look into it tommorow.Simon Dodd 01:33, 24 February 2006 (UTC)

It's easy to forsee issues when you are the one creating them. Simon Dodd broke the footnote on this passage, as well as others:

"It has been argued that Originalism would hold Brown v. Board of Education to be wrongly decided. [44]"

This item should be linked to 39 now. Edit that caused this mess. I would edit the fix for 44 to 39, but clearly many others are effected. (Unsigned edit by User:Jelwell)

• Uh...The edit you linked to doesn't make any change to the footnotes. The edit introduced an external link.Simon Dodd 19:49, 13 April 2006 (UTC)

• The edit added 5 numbered items 8 through 12 (into that revision) but did not modify the numbered footnotes on the bottom of the page to match. If you search for Brown on that page you will see it is the first edit where the number in brackets does not match the footnote number.

So many people are editing this that the footnote system will get fouled up every few days. Probably it's better to use inline Harvard citation like [Smith-book 2003:p 222] Rjensen 01:39, 24 February 2006 (UTC)

I'm really not keen on that style, as I think it distracts from the flow of the article - I'm generally in favor of footnoting everything that isn't directly within the flow of the text. However, I'm reluctantly forced to agree that it might be the best solution if the article is entering another period of substantial flux (although I'm far from convinced it needs it). Simon Dodd 19:40, 24 February 2006 (UTC)

Original intent vs. original meaning

With regard to this quote by Justice Scalia: "You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist."

He refers to "original intent" a great deal in this article, apparently as a synonym for 'originalism': http://www.joink.com/homes/users/ninoville/lesserevil.asp

Granted, that was written some time ago. One thing this article doesn't talk about is where the modern 'original meaning' movement started. Anyone know who first started making the case?

-- WikiAce 21:31, 5 February 2006 (UTC)

I think that essay was written at a time when the terms often overlapped; indeed, IIRC, this is the article credited with starting the move from intent to meaning, so it may be affected, or it may simply be the context of the time. Simon Dodd 01:31, 24 February 2006 (UTC)

Twenty-seventh Amendment

"Perhaps the clearest way to illustrate the importance of the difference between original intent and original understanding is to use the example of 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 would ask what the framers understood the amendment to mean when it was written; an original meaning inquiry would ask what the plain meaning of the text was in 1992 when it was eventually ratified."

I'm not sure all original meaning advocates would agree with this. Many of the ratifications took place two centuries ago. And whereas the modern observer was capable of ascertaining the 1791 meaning before making a decision as to whether or not to ratify the amendment, the 1791 observer had no way of knowing the modern meaning.

How is one to draft a document if it is to be interpreted according to the lingo of a generation 200 years into the future?

-- WikiAce 14:58, 8 March 2006 (UTC)

• I suppose the flip response would be that this is a problem for the interpreter not the drafter, but a more serious suggestion would be to use plain language wherever possible, as that is certainly how it will be interpreted in one's own day and age. Simon Dodd 20:27, 11 April 2006 (UTC)

Simon Dodd

is hereby ordered to leave the Judicial Activism section intact. Judge Dredd (unsigned comment 17:43, 15 March 2006 by user:141.26.68.145)

• I'll be sure to treat that "order" with every ounce of seriousness that usually inheres in an unsigned anonymous request. My concern is to keep the article as accurate and effective as possible, not to pander to vanity edits. The question of originalism as a form of judicial activism is certainly a valid one, but it is tangential to a discussion of what the theory actually is; if it can be dealt with more effectively in the judicial activism article, and that article be linked to from here (a fortiori in an already lengthy article), that is the best place for it. Court is adjourned. Simon Dodd 20:24, 11 April 2006 (UTC)

Christy painting

While I'm a fan of having images in Wikipedia articles, I don't think the image of the signing of Constitution belongs here. This is an article about an interpretation of the Constitution, not its signing. How does the painting portray the meaning of the Constitution? Couldn't the image just as easily go on the page for Original intent, Strict constructionism or even Living Constitution with an appropriate "supporters argue..." caption? I think images of prominent Originalists, like Scalia, would be more appropriate. MorrisGregorian 08:18, 2 July 2006 (UTC)

Con argument

"Originalism leads to unacceptable results. For example, interpreting the 14th Amendment of the U.S. Constitution only to protect liberty recognized at the time it was ratified provides no protection to groups who were discriminated against at that time, particularly women and homosexuals. With originalism, the courts are extremely limited in their power to protect against discrimination." This is only true if people refuse to ammend the Constitution. —Preceding unsigned comment added by 143.111.22.21 (talk) 22:22, 2 October 2007 (UTC)

I think advocating discrimination is one of the goals of "originalism". 209.91.15.10 (talk) 17:36, 29 May 2009 (UTC)

Twenty-seventh Amendment

The text invokes "the example of the Twenty-seventh Amendment". The 200 year ratification of the Twenty-seventh Amendment is sui generis, and not an example of anything.  Randall Bart   Talk  18:18, 1 October 2007 (UTC)

Explain. —Preceding unsigned comment added by 143.111.22.21 (talk) 22:25, 2 October 2007 (UTC)

Merge with Bad originalism

It seems to me that Bad originalism is either now a POV fork of this article or has great potential to become one. I'm not sure it would be best to completely integrate the text of the two, but it seems to me that at minimum, the bad originalism concept needs to be mentioned here and that should be treated as a subarticle somehow. Erechtheus (talk) 02:53, 19 May 2008 (UTC)

I agree that Bad originalism should be merged into this article. It's a POV fork.Ferrylodge (talk) 20:59, 14 April 2009 (UTC)

Originalism is a fraud

It's no coincidence that nearly all self-described "originalists" explicitly advocate positions that the writers of the Constitution strongly opposed. You'd be hard-pressed to find an "originalist" who doesn't support an extremely strong executive, even though the Founding Fathers intended for Congress to the more powerful branch. The absolute last thing they wanted was a President strong enough to act as a king. 77.74.198.125 (talk) 00:50, 1 August 2008 (UTC)

As you can tell by the anger written in the words, this page written by a left wing liberal and holds no weight. If it were done in a non-partisan way then this page on "bad originalism" would be worth the time. —Preceding unsigned comment added by [[User:{{{1}}}|{{{1}}}]] ([[User talk:{{{1}}}|talk]] • [[Special:Contributions/{{{1}}}|contribs]])

So if you are capable of writing, NPOV, fix it. Otherwise buzz off. 209.91.15.10 (talk) 17:34, 29 May 2009 (UTC)

Amendments Question

So do "originalists" seek to repeal amendments not drafted by the framers of the Constitution? I've never really heard a clear answer to this... If so, how would these people justify repealing very important amendments such as the 13th and 19th? 209.91.15.10 (talk) 17:43, 29 May 2009 (UTC)

short ansewer? No they dont. Smitty1337 (talk) 20:06, 24 April 2010 (UTC)

Removed material from opposing views

• It is further argued that the specific intent in drafting the United Stated Constitution was to create a broad and flexible document which would be interpreted in this manner. As Edmund Randolph set out at the Constitutional Convention, the goal was specifically "[t]o insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events." The basis for now scrupulously trying to recreate 18th century meaning, thus, is often called into question, when it appears that the Constitution was written specifically to avoid binding future generations in this way.

• This view is also supported by the fact that a constitution itself is silent on the appropriate method of constitutional interpretation. For example, had the framers intended for the U.S. Constitution to be interpreted in a specific manner they could have indicated as much in the text of the Constitution itself. The framers themselves, most of whom were lawyers and legal scholars, would presumably have known the confusion their lack of doing so would cause. The absence of any such guidance suggests either implicit support for contemporary interpretation, or that they could not agree on the correct method, neither of which should bind future generations.

Aside from being uncited and wp: or, this is a personal interpretation. One could easily spin that in favor of originalism by saying that the constitution was the essential principals only, and that seeking "new rights" in amendments that are not explicitly listed in the amendment amounts to trying to trying to making them permanent an unalterable (for instance abortion rights), as opposed to allowing the times and events to accomodate them, I.E. legislation based on popular support for abortion rights. At any rate, its wp: or until somebody cites it this has no place in the article. Smitty1337 (talk) 20:04, 24 April 2010 (UTC)

If the Opposing Views section continues without citations, it should be deleted. It is unencyclopedic to leave unsourced material in place for long periods of time, to give the notion, that someone with introduce sources, an unlimited benefit of the doubt. --THE FOUNDERS INTENT ^PRAISE _{GOOD WORKS} 13:50, 18 August 2010 (UTC)

This section has been left unimproved for over two years (Apr 08). --THE FOUNDERS INTENT ^PRAISE _{GOOD WORKS} 13:51, 18 August 2010 (UTC)

Conflict

"Originalism is a theory of interpretation, not construction"

Construction is the noun form of the verb "to construe"; to infer a meaning from. Interpretation is.. mirabile visu: the exact same thing. So, cited or not, this sentence -- on which the entire section, if not the entire article, seems to hang -- is inherently self-contradictory. --baylink@en.w —Preceding unsigned comment added by 65.34.90.32 (talk) 23:33, 13 June 2010 (UTC)

Originalism is not conservatism

I find the premise in this section somewhat ridiculous. Since when do conservatives not believe in what this section says? Who says conservatives are against change? It's all about how the change is made. The section should be rewritten or deleted. --THE FOUNDERS INTENT ^PRAISE 17:17, 6 July 2011 (UTC)

I agree from what I have seen of the views on the court not all conservatives believe this and should be noted accordingly.

This makes no sense...

• Originalists often argue that where a constitution is silent, judges should not "read rights into" it. Rights implicating abortion, sex and sexual orientation equality, and capital punishment are often thus described as issues that the Constitution does not speak to, and hence should not be recognized by the judiciary. Yet, the Ninth Amendment, provides that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Original intent thus calls for just the opposite of what the text of the Constitution and "original intent" of the founders arguably affirm, creating an inconsistency in the practice of at least one branch of Originalism. The subsequent Tenth Amendment, detailing non-enumerated rights as the sole property of the states and the people, is often cited as the clarification for this inconsistency and the reason why the federal courts have no say in affirming or denying said rights per the Ninth Amendment.

This makes no sense at all, originalists saying that "judges should not read rights into" the amenments and that "the Constitution does not speak to, and hence should not be recognized by the judiciary" has no bearing on the ninth amendment. This appears to be a misunderstanding of Originalism, it is entirely accurate to state that abortion is not spoken of in the constitution and that the judiciary should not recognize it. Citing the ninth amendment in this manner shows bad interpretation of that amendment and why it was passed in the first place. It is not meant to extend new rights, infact it says as much in its text "others retained by the people" not other rights claimed by the people, ie. new rights. The ninth was passed so that the federal government would not be able to claim authrity over anything that was not explicitly named as forbiden to it by one of the amendments, it ensured that the bill of rights was not read as "the federal government my do anything except these few things." and was instead understood to be just a specific list of essential rights, but that other less essential rights existed or could be created by legilation. thats how an originalist reads it because thats why James madison wrote it. Smitty1337 (talk) 20:29, 24 April 2010 (UTC)

That's because the Federalists consider the BoR an appeasement to the Anti-Federalists arguments in the state conventions, and that it goes without saying that rights exist and that Congress only had the powers specifically enumerated. --THE FOUNDERS INTENT ^PRAISE 17:39, 6 July 2011 (UTC)

expanding sources used in this article

We should pay attention to some sources that have not be used. Especially from groups like the American Constitutional Society for example. While they disagree with Orginalism, their insight would be useful for section on this page for criticism this particular view point has received.

In particular a book written by two of it members call Keeping Faith with the Constitution http://www.acslaw.org/pdf/ACS_KeepFaith_FNL.pdf

Pages 9 & 10 briefly talk about some of their criticism of the Orginalist views on the constitution — Preceding unsigned comment added by Laughingman543 (talk • contribs) 19:52, 27 August 2011 (UTC)

Writers Show Ignorance of the Constitution

This Statement: "...Original intent thus calls for just the opposite of what the text of the Constitution and original intent of the founders arguably affirm, creating an inconsistency in the practice of at least one branch of Originalism."

The writer attempts to take a part of the Constitution that leaves undelegated things to the states, and twist it to somehow find a inconsistency or allow people to empower the federal government.

There is no inconsistency, (except those so ignorant) because these things are left to LOCAL STATES to decide in their own; NOT as something to grant the federal government more power, outside those things that were EXPRESSLY DELEGATED;

Changes (using the ratifying and amendment process) in the Constitution are "LIMITED to the DELEGATED powers" and they cannot take "ONE STEP BEYOND" as the founders in the Virginia Ratifying Convention 6-16-1788 present Clearly;

Neither federal government themselves, NOR CAN THE STATES, ARROGATE ANY NEW POWER UPON THE FEDERAL GOVERNMENT.

The Original Compact creates the Authorities of the Republic and the authorities cannot change.

The People, states and local communities DO HAVE full powers (not exceeding the Law of Nature) how their local communities / societies can be run on all things not delegated to the federal government.

Read the Virgina Ratifying Convention 6-16-1788 and the Virginia and Kentucky Resolutions 1798

Find these documents in full under "founders documents" at www.americanpatriotparty.cc 02:06, 4 February 2013 (UTC)RichardTaylorAPP

Antonin Scalia and Originalism

The caption to the picture of Scalia says, "Supreme Court Justice Antonin Scalia is a firm believer in originalism." Except, of course, when he isn't. In the case of Gonzales v. Raich, 545 U.S. 1 (2005), Angel Raich was growing marijuana for her own medicinal use, which was legal under California law. The Supreme Court, in a 6-3 decision, held this to be illegal under Federal law. A concurring opinion was written by Scalia, based on the Interstate Commerce clause of the Constitution and the Necessary and Proper Clause, saying

Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As US v. Lopez, 514 U.S. 549 (1995) itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could ... undercut” its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.

Clarence Thomas, said that the majority was wrong, saying that Raich grew and used

marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal government is no longer one of limited and enumerated powers. ... By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power.

Thomas wrote: "The Necessary and Proper Clause is not a warrant to Congress to enact any law that bears some conceivable connection to the exercise of an enumerated power". He went on to say "Congress presented no evidence in support of its conclusions, which are not so much findings of fact as assertions of power," and concluded: "Congress cannot define the scope of its own power merely by declaring the necessity of its enactments".

The gist of Thomas' dissent comes straight out of originalism: {quote|Respondent's local cultivation and consumption of marijuana is not "Commerce ... among the several States". Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.}}

Clearly, Scalia supports originalism only when he feels like it. JHobson3 (talk) 16:17, 23 July 2014 (UTC)

Totally unencyclopedic

The first part is okay, but not perfect. But in then generates unto passionate speeches written for two opposing sides. The language is far to emotional and rhetorical to sound encyclopedic, and wiki articles are supposed to be NPOV...that's "NEUTRAL point of view", not "Two very distinct and passionate points of view dukeing it out to see which can be more persuasive". Its not supposed to be a contest. Its not supposed to sound personally involved. It's supposed to present the facts, and where there is controversy, what some people view as the facts. It should not sound like the article is written as an editorial, even if both arguments are provided. Less clever speech making, more unemotional statment of facts..45Colt 04:03, 26 November 2015 (UTC)

What are the alternatives?

The article defines originalism by reference to 'the notion that an utterance's semantic content is fixed at the time it is uttered'. I am struggling to see what conceivable alternatives there might be. Of course, words do change their meanings, but surely no-one supposes that this changes the meaning of past *utterances* containing those words. For example, the word 'nubile' originally meant just 'suitable for marriage', but in common usage it has come to mean almost the opposite! If we came across a historical document containing the word, from a time when it unambiguously meant 'suitable for marriage', it would be absurd to suggest that the document had changed its meaning, especially if some legal issue (e.g. the provisions of a will or trust) depended on it. If there are in fact serious alternatives to originalism, there should at least be some indication of what they are or how to find them. (I have looked at the linked article on 'judicial interpretation', but nothing there seems to be strictly an alternative to originalism, just supplementary principles of interpretation, such as attention to context.)109.148.117.50 (talk) 15:28, 14 February 2016 (UTC)

Originalism or originalists?

This argument: "Originalism, as applied by its most prominent proponents, is sometimes pretext (or, at least, the "rules" of originalism are sometimes "bent") to reach desired ends, no less so than The Living Constitution. For example, Prof. Jack Balkin has averred that neither the original understanding nor the original intent of the 14th Amendment is compatible with the result implicitly reached by the Originalist Justices Thomas and Scalia in their willingness to join Chief Justice Rehnquist's concurrence in Bush v. Gore, 531 U.S. 98 (2000). Furthermore, while both Scalia and Thomas have objected on originalist grounds to the use of foreign law by the court (see, respectively, Thompson v. Oklahoma, 487 U.S. 815, 868 (1988), and Knight v. Florida, 528 U.S. 990 (1999)), both have allowed it to seep into their opinions at one time or another (see, respectively, McIntyre v. Ohio Elections Committee, 514 U.S. 334, 381 (1995) and Holder v. Hall, 512 U.S. 874, 904 (1994))", is an ad hominem argument against certain originalist justices and has no bearing on the validity of the practice of originalism. Costatitanica (talk) 20:02, 25 February 2016 (UTC)

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Arguments against some of the proponents of Originalism

"Some have suggested that Scalia's personal concept of "originalism" was actually a disguised theocratic agenda, in that he sees rights as coming from a deity rather than from the text of the Constitution." This is problematic crticisms because the notion that rights come from a Diety or Providence or Nature or some outside overarching source is inherent to the Constitution. This is not "theocratic", but standard. The stated alternative, that the Constitution itself somehow creates the rights it protects is not tenable under any judicial construction. The position is always that the document protects extant rights and liberties, not that it is the source of them. — Preceding unsigned comment added by Venqax (talk • contribs) 14:41, 9 October 2016 (UTC)

Thomas Jefferson's stance towards original meaning

"I am certainly not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors." Source --Fb8cont (talk) 14:01, 20 November 2016 (UTC)

Comparison to fundamentalism

To add to article: a comparison with the philosophy of fundamentalist religionists: a belief that a literal reading of texts (such as the Bible) is the correct one.

From the lead paragraph of the Fundamentalism Wikipedia article:

Fundamentalism usually has a religious connotation that indicates unwavering attachment to a set of irreducible beliefs. However, fundamentalism has come to be applied to a tendency among certain groups – mainly, although not exclusively, in religion – that is characterized by a markedly strict literalism as it is applied to certain specific scriptures, dogmas, or ideologies, and a strong sense of the importance of maintaining ingroup and outgroup distinctions, leading to an emphasis on purity and the desire to return to a previous ideal from which advocates believe members have strayed. Rejection of diversity of opinion as applied to these established "fundamentals" and their accepted interpretation within the group often results from this tendency.

173.88.246.138 (talk) 06:59, 23 October 2020 (UTC)

Here is a reference that makes the case that originalism is a form of fundimentalism:

• Sehat, David (2018). "On Legal Fundamentalism". In A. Hartman; R. Haberski (eds.). American Labyrinth: Intellectual History for Complicated Times. Cornell University Press. pp. 21–37. doi:10.7591/9781501730221-003.

--WriterArtistDC (talk) 16:55, 27 October 2020 (UTC)

Associated judges/scholars

The lead discusses this with sentences such as Alfred Avins and Raoul Berger (author of Government by Judiciary) are associated with this view. (original intent originalism) and Most originalists, such as Antonin Scalia, are associated with this view. (original meaning originalism)

But there is no section in which we can lay out sources for whether one or another person belongs to whatever school of thought as a reader might expect from the lead. The article is structured in such a way that is is not discussed in the article proper; those names are only mentioned during the history of originalism, there's no natural place to discuss Judge Barrett's views, for instance! CapnZapp (talk) 11:10, 28 October 2020 (UTC)

For instance, in a source like this Judge Barrett claims the Justice Earl Warren’s and Justice Warren Burger’s Supreme Courts were original intent originalism, as opposed to herself.

"waves" of originalism

In the past century, there have been three great waves of originalism. The first, spearheaded by Black, sought to tear down prior efforts by conservative judges to thwart progressive legislation. The second, led by men like Scalia, was primarily a backlash against decisions like Roe v. Wade (1973) — decisions beloved by liberals and hated by conservatives.

The third wave, meanwhile, also has its roots in legal conservatism, but it is quite distinct from the restrained vision of judging advocated by Justice Scalia (or, at least, advocated by Scalia in the 1980s). Led by men like Thomas and Gorsuch, third-wave originalists are quite comfortable with judicial power. And they are eager to use it to drastically reshape the law.

Not saying I necessarily agree, but I can't find - in the discussion on the evolution of originalism - this discussed. CapnZapp (talk) 11:22, 28 October 2020 (UTC)

References

Unbalanced

I tried finding the best template to convey the sense this article only deals with the subject in a minimal way. There's a huge debate that appears to fly right past this article, as if its editors only add things both conservatives and liberals agree to. See previous talk sections for issues that just a few minutes of reading up on the concept triigered - things the article seems to completely miss.

It would be much better to expand the article to discuss criticism and defense and bring it into the 2020s. The article can still remain factual and neutral. Neutrality doesn't mean avoiding controversies - it just means reporting on them in a neutral/balanced manner.

Note: As I said at the start, I'm open to finding a better tag template if you can suggest one. {{Unbalanced}} is just what I though was best at the moment. I do not think it's appropriate to just remove it, however. The article comes across as so oddly lacking some form of cleanup tag is warranted. CapnZapp (talk) 11:33, 28 October 2020 (UTC)

Can you be more specific? What do you mean by "only add things both conservatives and liberals agree to"? What type of thing should be included? — Swood100 (talk) 17:00, 17 November 2020 (UTC)

Roots of Originalism

To avoid an edit war, I find the sentences recently forced into the introduction and later about originalism being rooted in resistance to Brown horribly out-of-place. A political science paper arguing that originalism's popularity as a distinct theory instead of the default method of constitutional interpretation grew as a result of Brown is not the basic information with a neutral point of view that should be in lead sections, nor even in articles at all stated as it is. A plain reading of the added text basically implies originalism started because racism. Which is obviously not true, as legal sources discussing it go back far farther than Brown and the cited sources for the edits even acknowledge it wasn't the start. I would revert revision 1012458330, but it seems the editor is willing to just revert my revision, so I am looking for some consensus. Jumper4677 (talk) 15:54, 23 March 2021 (UTC)

The paper is a peer-reviewed study in the top political science journal. The text adheres to what the study says. Your edit removed the study from the body and the lead without substantive explanation why and no suggestion on how to reword the findings of the study (if you disagreed with how the text was worded). Snooganssnoogans (talk) 18:13, 23 March 2021 (UTC)

@Jumper4677 I agree. Even the paper's abstract acknowledges that its assertion doesn't reflect general consensus. Oktayey (talk) 21:20, 23 March 2022 (UTC)

@Jumper4677 is correct. Just because a paper is in a major political science journal doesn't mean it's not arguing a particular point from a particular perspective. The paper's conclusion should not be presented as fact. If the paper's conclusion is to be included, it should be presented as an argument. 2603:7000:2303:3F45:A161:5176:F5D0:F470 (talk) 22:32, 30 June 2022 (UTC)

Deleting "Strict constructionism" section and/or moving it under "Forms"

Strict constructionism already has a page dedicated to it, and it doesn't seem necessary to give it its own section on this page, especially given that it's status as a form of originalism is contested (most famously by Antonin Scalia). I think it would be better that the section be removed or, at the very least, moved under "Forms". GuardianH (talk) 06:17, 1 August 2022 (UTC)

Some examples of originalism at play?

I think it would be a good idea to add a section were some examples of positions that many originalists hold. I am not knowledgeable enough in this area to do it myself, nor do I have the time, but I think it could be useful for the reader. 108.71.193.103 (talk) 04:04, 16 January 2023 (UTC)

US Supreme Court cases are the best sources for detailed examples of applied originalism. See, in particular, the speeches and jurisprudence of Justice Antonin Scalia, as in this book:

• The Essential Scalia : On the Constitution, the Courts, and the Rule of Law by Antonin Scalia; edited by Edward Whelan & Jeffrey S. Sutton (2020)

--50.39.103.148 (talk) 03:14, 3 March 2023 (UTC)

Originalism protecting slavery?

Here's an article that might be worked into the text, perhaps in the pro/con section? CapnZapp (talk) 11:15, 28 October 2020 (UTC)

That article suggests that the original terms of the Constitution should not bind us if they do not accord with modern notions of morality. That approach would be covered under the “con” bullet arguing “that constitutions are meant to endure over time, and to do so, their interpretation must therefore be more flexible and responsive to changing circumstances than the amendment process.” The counter-arguments would ask why it is appropriate for such changes to be made by the judiciary, what is the source of the judiciary’s authority to make such changes, how does the judiciary know which changes to make, and how is this form of change consistent with democracy? — Swood100 (talk) 17:34, 17 November 2020 (UTC)

That suggested source is an opinion piece. Further, it commits the genetic fallacy. --50.53.50.220 (talk) 16:02, 11 September 2021 (UTC)

Given that this is a wikipedia article about originalism, I believe that the best sources are those that come from judges/legal experts who follow this philosophy (and, for opposing views, I suggest legal experts/judges who are critics of originalism). With ample materials available from such legal experts and judges, I believe we should primarily rely on these writings as opposed to other sources.

Based on my understanding of originalism, it would be near-impossible (after the passage of the 14th amendment) for an originalist to find slavery or racial discrimination constitutional (given the popularity of Constitutional colorblindness in originalist circles). Thus, criticism of originalism in this way is often, in my view, a disingenuous political attack, which is why I caution against using non-scholarly work here.

As for this situation, if we discuss the idea of originalism protecting slavery/justifying segregation, it seems only fair to include (at least briefly) originalist counterarguments, especially given that this is an article on originalism. If we want to move this entire discussion to a new pro/con section or a new/existing section discussing criticism of originalism, I see no issues with that as long as we do justice to both the critics and proponents of originalism. This entire article could use better organization. Xam2580 (talk) 07:31, 22 November 2023 (UTC)