Originalism
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Originalism refers to a school of thought concerning the interpretation of law by a judge. The idea behind originalism is that a law must be interpreted from the viewpoints extant at the time of its inception and not those of the present day. Originalism is popular with United States conservatives in general and conservative U.S. judges in particular. This can be best observed in the push for originalist judges to be nominated to positions where constitutional law cases will most likely be heard.
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[edit] Why Originalism?
Conservatives have grown fearful of conservative ideals losing their cultural place as a result of constitutional legal decisions that have been handed down in recent times due to modern interpretations of the constitution. They hope that if judges hold only to the original text and intentions of the laws when they were written, they may be able to better maintain their conservative ideals in society.
The general intent is to force originalist interpretations into all judicial decisions so as to limit the ability of judges to reinterpret the constitution to align with current societal thinking.
[edit] First Amendment
The First Amendment presents a real quandary for an originalist judge. The original interpretation, specifically, of the "free speech" is particularly troublesome: at the time of the founding, many states that adopted this amendment criminalized blasphemy, which is wholly inconsistent with modern interpretations of the First Amendment. Further, the Framers split on the issue of seditious libel (criticizing the government): some considered it protected to some point by the First Amendment, some did not, a dilemma evinced by the debate over the Alien & Sedition Acts surrounding the War of 1812. The issue was not definitely resolved until the twentieth century, with the Holmesian revolution of First Amendment law. Holmes' interpretation of the First Amendment, and the liberalizing of the amendment, is a doctrine almost completely of judicial invention, created more in recognizance of what have become American values than what were American values. This, clearly, is a great dilemma: supplemented by the fact that the text of the First Amendment...
| “ | Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press... | ” |
...seems, textually, to compel a position more radical than most liberals would take: absolute free speech. This conclusion is inescapable unless one admits that some texts - indeed, constitutional texts - require more nuanced analysis.
[edit] Second Amendment
Conservatives, the prime supporters of originalist constitutional interpretation, seem to lose their zeal for the idea when the issue concerns the Second Amendment to the Constitution of the United States. It is widely held that the Second Amendment was meant solely, as is clearly stated, to pertain to a 'standing militia'. The pro-gun factions seem not to notice the 'militia' part of that amendment and are quite happy to have that amendment be interpreted to mean something different to the original intent.
Another significant problem with an originalist interpretation for conservatives would be that rights granted by the amendment would only apply to flintlock and older technology weapons. Post-18th century weaponry could not have been considered by the original constitutional framers of 1783 and, as such, would not be a part of the rights granted by the original intent of the amendment produced by said framers.
[edit] Problems with originalism
A significant problem with originalism, specifically relating to the Constitution of the United States, is that a document written in the 18th century cannot perfectly relate to the United States of the 21st century, so interpretation will always be required. In modern times, many issues come up which simply have no analogy from the 18th century, and thus we must seek to guide ourselves, rather than trying to ask how dead men's opinions on other matters might tell us what to do.
Ironically, in order to determine the "original intent" of the documents that are actually law, originalist scholars must resort to analyzing and interpreting many contemporary documents and papers of the principals involved in the process.
Legal scholar John Ely, author of Democracy and Distrust[1], believes that originalism involves a certain requirement of lying to oneself, in that originalists support the theory because of the belief that, if nothing else, it is at least objective, and limits judicial activism or departure from established law. However, Ely notes that, since there are multiple versions of "tradition" and "original intent," and indeed multiple interpretations of history, originalism is incapable of being as objective as it promises.
