Legal Definitions - originalism

Originalism is a legal theory that holds that legal texts, particularly the U.S. Constitution, should be interpreted based on their meaning at the time they were adopted. Proponents of originalism believe that the best way to understand and apply a law or constitutional provision is to determine what its words and phrases meant to the people who drafted and ratified it, as well as to the public at large, during that historical period.

To uncover this original meaning, originalists often examine a variety of historical sources. These can include the debates from constitutional conventions, the writings of the framers (like the Federalist Papers), contemporary dictionaries, other legal documents from the era, and the general societal understanding of language at the time the text was created. The goal is to apply the law as it was originally understood, rather than allowing its meaning to evolve with changing societal values or modern interpretations.

• Example 1: Interpreting the Second Amendment

  When considering the meaning of the Second Amendment, which states, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed," an originalist judge would delve into late 18th-century historical context. They might research what "arms" typically referred to at that time (e.g., muskets, not modern automatic weapons), the role and understanding of a "militia," and whether the right to "bear arms" was primarily understood as an individual right for self-defense or a collective right tied to militia service. Their decision would hinge on what these terms and concepts meant to the framers and the public when the amendment was ratified, rather than on contemporary debates about gun control or modern weaponry.

  This illustrates originalism because the interpretation of the Second Amendment's scope and application is directly tied to its historical meaning and the intent of its authors at the time of its adoption.

• Example 2: Defining "Cruel and Unusual Punishments"

  Suppose a court is asked to determine if a particular form of punishment, such as the death penalty, violates the Eighth Amendment's prohibition against "cruel and unusual punishments." An originalist approach would involve examining what punishments were considered "cruel and unusual" in the late 1700s when the Bill of Rights was adopted. They would look at historical practices, legal commentaries, and public sentiment of that era to ascertain if the framers intended to ban practices like capital punishment or if their concern was limited to more barbaric methods like torture or dismemberment. If capital punishment was widely accepted at the time, an originalist might argue it does not violate the Eighth Amendment today, regardless of evolving modern sensibilities.

  This example demonstrates originalism by seeking to define the constitutional term "cruel and unusual" based on its historical understanding and application at the moment the amendment became law, rather than through contemporary moral or ethical standards.

• Example 3: Federal Power Under the Commerce Clause

  Imagine a new federal law attempts to regulate a very localized economic activity, like a small farm selling produce only within its own state. A challenge to this law might invoke the Commerce Clause (Article I, Section 8, Clause 3), which grants Congress the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." An originalist judge would research the framers' understanding of "commerce" and "among the several States" at the time the Constitution was written. They might consult the Federalist Papers, records of the Constitutional Convention, and early Supreme Court decisions to determine if the framers intended for federal power to extend to purely intrastate economic activities or if their primary goal was to prevent states from erecting trade barriers against each other. This historical inquiry would guide their decision on whether the federal government has the constitutional authority to pass such a law.

  This illustrates originalism by grounding the interpretation of federal power, specifically Congress's authority under the Commerce Clause, in the historical understanding and intent of the Constitution's creators at the time of its ratification.