Originalism

• Author: Ralph K. Winter
• Pages: 1859-1863

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"Originalism" is a term used to describe the view that judicial decisions regarding the Constitution must be based on the ORIGINAL INTENT of those who participated in the framing and enactment of the original Constitution and later amendments. For example, originalists regard the issue of the constitutional validity of the death penalty as easily resolved by the explicit references in the Fifth and Fourteenth Amendments to the deliberate taking of life by government, indicating that the Constitution expressly contemplates the imposition of the death penalty. The Fifth Amendment states that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, ? put in jeopardy of life or limb; ? be deprived of life, liberty, or property ?" and the FOURTEENTH AMENDMENT, likewise guarantees that "[n]o state shall ? deprive any person of life, liberty, or property.?"

Originalists justify their view on the grounds that focusing on original intent both limits the intrusion of the subjective political values of judges in constitutional decisions and gives due respect to democratic processes. Originalists argue that the intent of the Framers will sometimes accord with the personal views of judges and sometimes not. Application of this intent, therefore, will limit the ability of judges to impose their personal views on various issues upon the nation. Originalists also point out that the Constitution contains democratic amendment procedures and that the use of criteria other than original intent would enable judges to subvert both the democratic processes that led to the enactment of particular constitutional provisions and the democratic processes that provide for amendments. Finally, originalists argue that originalism is the only theory that can legitimate the institution of judicial review, which is a method of ensuring that the Constitution, as a superior law adopted by the people, constrains all organs of government, including the courts. MARBURY V. MADISON, 5 U.S. (1 Cranch) 137, 179?180 (1803).

Critics of originalism generally rely on two lines of attack. The first line is that the intent of the Framers is difficult and often impossible to determine. As Justice WILLIAM J. BRENNAN said: "It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions." Doubt as to our present ability to learn the intent of the Framers fuels the suspicion among observers more cynical than Justice Brennan that lip service to supposed evidence of original intent is actually a façsade behind which judges weave their subjective political values into the fabric of constitutional law. Second, critics argue that our concepts of civilized rule constantly evolve and that originalism affords too niggardly a protection for profoundly important rights. Again, Justice Brennan put the matter succinctly in describing his position on the constitutionality of the death penalty: "Because we are the last word on the meaning of the Constitution, our views must be subject to revision over time, or the Constitution falls captive, again, to the anachronistic views of long-gone generations." He thus felt free to argue that the Eighth Amendment's prohibition on CRUEL AND UNUSUAL PUNISHMENT (applicable to the states through the Fourteenth Amendment) prohibits the death penalty notwithstanding the specific references to the death penalty in the Fifth Amendment, which was part of the BILL OF RIGHTS package that included the Eighth, and the more general reference to the death penalty in the Fourteenth Amendment itself.

In response to the first criticism?that the intent of the

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Framers regarding contemporary constitutional litigation is not ascertainable?originalists divide into what might be called an "intentionalist" school of thought and an "interpretivist" school of thought.

Members of the intentionalist school search for the actual state of mind of the Framers at the pertinent time, based on the language of the constitutional text, preconstitutional precedents, sometimes involving British law, or explicit legislative history. In their view, a judicial decision that is not based on explicit constitutional language or direct evidence of an actual intent held by the Framers is an illegitimate decision. The intentionalist school is best illustrated by the work of Raoul Berger. Berger has thus concluded that BROWN V. BOARD OF EDUCATION OF TOPEKA (1954) was an illegitimate decision because of the lack of an explicit reference to DESEGREGATION in the Fourteenth Amendment and because of evidence that some of the Framers stated during the framing and ratification period that public, segregated, educational institutions would pass constitutional muster under the Fourteenth Amendment. He has also denied the existence of an EXECUTIVE PRIVILEGE because of the failure of the Constitution to mention such a privilege and the lack of precedent in colonial or preexisting law.

INTERPRETIVISM, on the other hand, insists only that constitutional decisions be, in Dean John Hart Ely's (not himself an originalist) words, "in accord with an inference whose...