from The American Heritage® Dictionary of the English Language, 4th Edition
- n. The belief that the U.S. Constitution should be interpreted according to the intent of those who composed and adopted it.
from Wiktionary, Creative Commons Attribution/Share-Alike License
- n. The view that a text should be interpreted according to the intent of its original authors.
from WordNet 3.0 Copyright 2006 by Princeton University. All rights reserved.
- n. the belief that the United States Constitution should be interpreted in the way the authors originally intended it
One of the rhetorical strengths of originalism is that it begins with a proposition most everyone agrees with (that the intent of the Framers is essential for understanding the meaning of the Constitution) and then cleverly moves on to determine what exactly “original intent” means with less discussion.
But to say that every legitimate constitutional scholar says that all of ‘Obamacare’ (e.g., the individual mandate) passes muster, assumes that originalism is not a legitimate form of constitutional interpretation.
If originalism is even a valid and legitimate mode of interpretation, how should it be done?
Mr. STEPHEN BREYER (Supreme Court Justice): People think we decide things politically, or at least if we don't decide things politically, we're deciding on whatever we think is good in some general way; or that the only way to protect against subjective views of judges is to have something called originalism, which is as if you could reach decisions by means of an historical computer.
Nevertheless, once we recognize the full implications of this distinction, original meaning originalism is fully compatible with living constitutionalism.
In fact, one argument for my version of originalism is precisely that it allows us to understand the most valuable achievements of American constitutionalism in the past two centuries as reasonable implementations of text and principle rather than mistakes that we are stuck with because it would now be too politically embarrassing to disown them.
If a version of originalism is incapable of finding a conflict between original meaning and modern practice, then it isn't originalism, it's just "living" constitutionalism flying under a false flag.
To derive original meaning he often looks to practices and principles as they would have been understood at the time the text was framed (his opinions regarding the equal protection clause are a notable exception); thus his version of original meaning originalism is heavily informed by what I have called original expected application.
"Justice Thomas ['s] ... version of original meaning originalism is heavily informed by what I have called original expected application."
But, as I said before, take it from a civil trial lawyer: this discussion about originalism is so much hogwash.
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