Varieties of Originalism
Originalism is actually a family of related views. One form of originalism emphasizes the original intentions of those who drafted the constitution. In the American context, this would be the group that drafted the United States Constitution at the constitutional convention in Philadelphia. Another form of originalism emphasizes the original meaning of the constitution as it would have been understood by ordinary citizens in the historical period during which the constitution was proposed, ratified, and first implemented. Some originalists emphasize the original intention with respect to particular practices, while others focus on general principles.
The Case for Originalism
Many different arguments have been made for originalism. Among them are the following:
- Originalism is the best alternative to unfettered discretion by judges to inject their own values into a written constitution.
- Originalism is required by the principle of popular sovereignty in constitutional orders where a written constitution is approved by the people.
- Originalism serves the rule of law values of predictablility and certainty of constitutional meaning.
Criticisms of Originalism
Originalism in its various forms has been criticized in a variety of ways. Among the important criticisms are the following:
- There is no original intent for a constitution that was drafted and ratified by many different persons with different intentions.
- Constitutions are meant to endure over time, and their interpretation must be flexible and responsive to changing circumstances.
- Originalism allows the dead hand of prior generations to control the outcome of important contemporary issues.
- The original intention or meaning of particular constitutional provisions can be understood at different levels of generality and the choice among such levels is arbitrary.
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