Original Intent

• Author: Jeffrey Lehman, Shirelle Phelps

Page 333

The theory of interpretation by which judges attempt to ascertain the meaning of a particular provision of a state or federal constitution by determining how the provision was understood at the time it was drafted and ratified.

Sometimes called original understanding, originalism, or intentionalism, the theory of original intent is applied by judges when they are asked to exercise the power of JUDICIAL REVIEW during a legal proceeding. (The power of judicial review is the power of state and federal courts to review and invalidate laws that have been passed by the legislative and executive branches of government but violate a constitutional principle.)

Not every judge adheres to the theory of original intent, and many adherents fail to apply it in a uniform and faithful manner. Judges who do attempt to apply this judicial philosophy generally agree that only through its application may courts be bound by the law and not their own views of what is desirable. They also generally agree that courts must apply original intent in order to preserve the representative democracy created by the federal Constitution.

Originalists observe that the democracy created by the U.S. Constitution is marked by three essential features: a SEPARATION OF POWERS, FEDERALISM, and a BILL OF RIGHTS. The Constitution separates the powers of the federal government into three branches, which help foster what is known as a system of checks and balances. Article I of the Constitution delegates lawmaking power to the legislative branch, which comprises the two houses of Congress. This lawmaking power authorizes members of Congress to pass legislation that reflects the values of their voting constituency, usually consisting

Page 334

of a plurality or majority of the adults residing in the representative's home state. If a representative makes policy that is inconsistent with the values of the representative's constituents, the representative will likely be voted out of office at the next election and replaced by someone who is more sensitive to popular will. Under this system, Congress remains perpetually accountable to the U.S. people, who, originalists point out, are the ultimate source of authority from which the Constitution derives its legitimacy.

The EXECUTIVE BRANCH is also held accountable to the U.S. public at the voting booth. Every four years, U.S. citizens are given the opportunity to determine who will be president of their country. They generally vote for someone who is perceived to represent their economic, societal, and personal interests on a variety of issues, including taxes, the WELFARE system, and the right to live and die free from governmental restraint.

Article II empowers the president to sign the congressional acts that he approves and VETO the rest, enabling the executive branch to...