Original Intent

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Original Intent

The theory of interpretation by which judges attempt to ascertain the meaning of a particular provision of a state or federal constitution by determining how the provision was understood at the time it was drafted and ratified.

Sometimes called original understanding, originalism, or intentionalism, the theory of original intent is applied by judges when they are asked to exercise the power of Judicial Review during a legal proceeding. (The power of judicial review is the power of state and federal courts to review and invalidate laws that have been passed by the legislative and executive branches of government but violate a constitutional principle.)

Not every judge adheres to the theory of original intent, and many adherents fail to apply it in a uniform and faithful manner. Judges who do attempt to apply this judicial philosophy generally agree that only through its application may courts be bound by the law and not their own views of what is desirable. They also generally agree that courts must apply original intent in order to preserve the representative democracy created by the federal Constitution.

Originalists observe that the democracy created by the U.S. Constitution is marked by three essential features: a Separation of Powers, Federalism, and a Bill of Rights. The Constitution separates the powers of the federal government into three branches, which help foster what is known as a system of checks and balances. Article I of the Constitution delegates lawmaking power to the legislative branch, which comprises the two houses of Congress. This lawmaking power authorizes members of Congress to pass legislation that reflects the values of their voting constituency, usually consisting of a plurality or majority of the adults residing in the representative's home state. If a representative makes policy that is inconsistent with the values of the representative's constituents, the representative will likely be voted out of office at the next election and replaced by someone who is more sensitive to popular will. Under this system, Congress remains perpetually accountable to the U.S. people, who, originalists point out, are the ultimate source of authority from which the Constitution derives its legitimacy.

The Executive Branch is also held accountable to the U.S. public at the voting booth. Every four years, U.S. citizens are given the opportunity to determine who will be president of their country. They generally vote for someone who is perceived to represent their economic, societal, and personal interests on a variety of issues, including taxes, the Welfare system, and the right to live and die free from governmental restraint.

Article II empowers the president to sign the congressional acts that he approves and Veto the rest, enabling the executive branch to influence national policy, if not make it. The president may also influence national policy by promulgating executive decrees (which are orders issued by the executive branch without congressional approval) that are intended to implement a constitutional provision, federal law, or treaty. In addition, Article II charges the president with the responsibility of enforcing legislation that has been passed by Congress and signed into law.

Article III of the Constitution delegates federal judicial power to the U.S. Supreme Court and to other "inferior" federal courts that Congress may establish. Unlike the president and members of Congress, federal judges are largely unaccountable to the U.S. electorate. Once appointed to the bench by the president and confirmed by the Senate, a federal judge holds office for life, unless she or he retires or is removed for "treason, Bribery, or other high crimes and misdemeanors" (U.S. Const. art. II, § 4).

Although Article III does not confer the power of judicial review, in marbury v. madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), the Supreme Court ruled that it is "emphatically the duty" of the federal "judicial department to say what the law is" by "resolving the operation" of congressional legislation that conflicts with the paramount law of the U.S. Constitution. Marbury thus emphasized the traditional role of courts as oracles of the law; however, it provided little guidance on how courts should interpret and apply the particular provisions of the Constitution.

Originalists attempt to provide this guidance. They argue that the interpretation of most written documents, legal or otherwise, involves a form of "communication" in which "the writer seeks to communicate with the reader", Constitutional interpretation is no different, originalists say, because it involves the attempt of judges, as readers, to understand the meaning of a constitutional provision as conveyed by the Framers and ratifiers who authored it. Originalists believe that judges who fail to employ this method of interpretation transform courts into naked power organs.

Originalists contend that judges who deviate from the original understanding of a constitutional provision are forced to replace that understanding with their own subjective sympathies, social preferences, and notions of reasonableness. When judges substitute their own value choices for those actually written in the Constitution, federal courts become super-legislatures that make decisions based on the personal will of judges and not the law of the land (Day-Brite Lighting v. Missouri, 342 U.S. 421, 72 S. Ct. 405, 96 L. Ed. 469 [1952]).

Originalists assert that judges who legislate from the bench violate the separation of powers by making law rather than interpreting and applying it. These judges also violate the principles of federalism, the second essential feature of U.S. constitutional democracy identified by originalists. Under these principles, courts must strike an appropriate balance between the sovereignties of state and federal governments, not allowing the smaller state governments to be wholly consumed by the ubiquitous federal government. Originalists contend that this balance impermissibly tips in favor of the federal government when federal courts invent new constitutional rights that state governments are then required to enforce.

Such rights have protected areas concerning homosexual behavior, Abortion, Capital Punishment and individual privacy. Justice Clarence Thomas, an exponent of originalism, observed that "[t]he federal Constitution" is not meant to "address all ills in our society" (Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 117 L. Ed. 2d 156 [1992] [Thomas, J., dissenting]). Nor is the Constitution meant, Thomas said, "to prohibit everything that is intensely undesirable" (Bennis v. Michigan, 516 U.S.442, 116 S. Ct. 994, 134 L. Ed. 2d 68 [1996] [Thomas, J., concurring]). Originalists claim that the Constitution must protect only the areas of life that are expressly referred to or fairly implied by the explicit language of its text. In other words, where the Constitution stops speaking, the state governments may begin.

Respect for principles of federalism, then, is intimately connected with the third essential feature of U.S. Constitutional democracy identified by originalists, the Bill of Rights. The Bill of Rights protects certain freedoms from the popular will no matter how democratically the majority attempts to trample them. In all other areas, originalists assert, state and federal majorities are entitled to rule for no better reason than that they are majorities. Originalists explain that majority tyranny occurs if legislation invades areas properly left to individual freedom, and minority tyranny occurs if the majority is prevented from ruling where its power is legitimate.

Originalists argue that the judiciary facilitates minority tyranny by improperly interpreting the Bill of Rights to guarantee liberties not contemplated by the language and intent of the Framers. To avoid this pitfall, originalists believe, judges must safeguard only the liberties that can be clearly derived from the Constitution. Originalists cite a series of cases in which the Supreme Court recognized a right to privacy as the antithesis of proper constitutional interpretation.

In griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), the Court struck down a state law forbidding married adults to use contraceptives, because it violated their right to privacy guaranteed by the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. Although a majority of the Court recognized privacy interests that may be inferred from these several constitutional amendments, Justice Potter Stewart noted in a dissenting opinion that "no such general right of privacy" can be found in the express language of "the Bill of Rights" or "any other part of the Constitution." Originalists argue that courts cannot apply a general right to privacy in a politically neutral manner without protecting all sorts of illegal activities that are conducted in private, such as spousal abuse, price-fixing, and prostitution.

Further readings

Bork, Robert H. 1990. The Tempting of America: The Political Seduction of the Law. New York: Free Press.

——. 1971. "Neutral Principles and Some First Amendment Problems." Indiana Law Journal 47.

Dworkin, Ronald. 1994. Life's Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom. New York: Knopf.

——. 1990. Review of Bork's Jurisprudence, by Robert H. Bork. University of Chicago Law Review 57.

——. 1977. Taking Rights Seriously. Cambridge, Mass.: Harvard Univ. Press.

Graglia, Lino. 1992. "Interpreting the Constitution: Posner on Bork." Stanford Law Review 44.

Hand, Learned. 1958. The Bill of Rights. Cambridge, Mass.: Harvard Univ. Press.

Howard, Robert M., and Jeffrey A. Segal. 2002. "An Original Look at Originalism." Law & Society Review 36.

Levy, Leonard W. 2000. Original Intent and the Framers' Constitution. Chicago: Ivan R. Dee.

Pankratz, Jeffrey. 1992. "Neutral Principles and the Right to Neutral Access to the Courts." Indiana Law Journal 67.

Posner, Richard A. 1990. "Bork and Beethoven." Stanford Law Review 42.

Scalia, Antonin. 1989."Originalism: The Lesser Evil." University of Cincinnati Law Review 57.

Scheef, Robert W. 2001. "'Public Citizens' and the Constitution: Bridging the Gap Between Popular Sovereignty and Original Intent." Fordham Law Review 69.

Wechsler, Herbert. 1959."Toward Neutral Principles of Constitutional Law." Harvard Law Review 73.


Bork, Robert Heron; Constitution of the United States; Jurisprudence; Penumbra; Scalia, Antonin.

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