Originalism: Yay or Nay.
In an effort not to derail this awesome discussion
, I want to bring a debate up on the grey. I'm legitimately interested in what Mefites have to say about Originalism, a theory that many might know since it has gained traction in Courts in recent years, especially thanks to the Federalist Society and Justice Scalia on the Supreme Court.
Originalism, in my poor attempts to describe it quickly, is the theory that the Constitution should be interpreted according to the original intent of the Founders. Originalists vary in their adherence to the theory: some people consider original intent to be merely one factor to consider when interpreting the Constitution, while “strict” originalists (like Scalia) see original intent as absolutely dispositive. That is, any textual ambiguity in the Constitution should be resolved soley on the basis of the Founder’s intents.
Here’s the Wikipedia page
describing originalist theory.
I was just fairly interested in this debate, because in the above thread, some Mefite’s were
As I mentioned in the thread, I think that the founding father’s original intentions when writing the Constitution are certainly a factor to be considered when deciding Constitutional Issues, but I don’t think they are dispositive. Here are a few issues I have with the theory:
(a) For Originalism to be a valid theory, we must assume that we can accurately determine what the original intent of the founding fathers was. Can we actually figure out what these guys were thinking, 200+ years ago? And what if we today reach conflicting conclusions about original intent? It often seems to me that Scalia gives himself a monopoly on the “correct” interpretation of original intent, often by brushing aside other’s attempts to interpret the Founders. (Look at his concurring opinion in Citizen’s United, for instance).
(b) What documents should we refer to in order to determine what original intent was? Obviously we can’t limit ourselves to the Constitution, since this is the document in question. Do the Federalist papers count? Personal journals of famous individuals? Correspondence? The minutes of the first congress?
(c) For Originalism to be a valid theory, we must assume that the Founders actually HAD a single, unified intent when creating the Constitution. Wasn’t the Constitution written by many different and competing factions, each with their own theory of what the government should be? Wasn’t the Constitution inherently and irrevocably a compromise? It might be silly to speak of “THE intent” of the founding fathers; maybe it should be “the various and competing intentions of various and competing members”. And what if the Founder’s intentions were actually to create an ambiguous and broad document, one that worked for now, but that the Founders wished to be interpreted according to the specific circumstances of the time? That is, what if the Founders actually intended future judges to debate and explore the meaning of the Constitution in relation to existing circumstances? Ronald Dworkin
is the leading advocate of this theory.
Anyway, sorry to rant, but as I said, I have a lot of respect for the power and intellectual capabilities of the Hive Mind, and was wondering what conclusions others had reached.