The Framers’ Constitution
American constitutional law has long followed the path set by Chief Justice Marshall. As technological means of surveillance became more sophisticated, for example, the meaning of “search” in the Fourth Amendment came to include invasions of privacy that do not involve a physical trespass. The provision granting Congress the power to maintain the nation’s “land and naval Forces” was eventually seen as authorizing an air force. The guarantee of “equal protection of the laws” in the Fourteenth Amendment was understood in later decades as prohibiting discrimination against not only African Americans but women and gays and lesbians as well. “Commerce…among the several states” came to be seen differently as the nation’s economy became more complex and integrated across state lines. The concept of “liberty” was recognized as encompassing not only freedom from physical restraint, but also freedom from undue government intrusion into such fundamental personal decisions as whether to bear or beget a child or how to raise and educate one’s children.
political conservatives next came up with the theory of “originalism.” First popularized by Robert Bork, Edwin Meese, and Antonin Scalia in the 1980s, originalism presumes that courts should exercise judicial restraint unless the “original meaning” of the text clearly mandates a more activist approach.
Originalism asserts that those who crafted and ratified our Constitution
intended the meaning and effect of their handiwork to be limited to the specific understandings of their time.
Originalism - Wikipedia
Today, originalism is popular among some
political conservatives in the U.S., and is most prominently associated with Justice
Clarence Thomas, 2017 Supreme Court nominee
Neil Gorsuch, Justice
Antonin Scalia, and
Robert Bork.
Originalists seek one of two alternative sources of meaning:
- The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it.
when conservative jurists began to take seats on the Supreme Court, that the debate really began in earnest. "Old originalism" focused primarily on "intent,"
The
original form of originalism is sometimes called intentionalism, or
original intentoriginalism, and looked for the subjective intent of a law's enactors.