The Constitution translates Thomas Jefferson’s eloquently stated ideals from the Declaration of Independence into more specific terms that make the idea of the United States a practical reality for Americans. If the Declaration set forth the vision for America, the Constitution describes how to make that vision a reality. Unfortunately, the Constitution is under attack and it is the very idea of what it means to be an American that is at risk. Those involved in the battle for the Constitution comprise two warring camps. These two camps differ radically in how they interpret the Constitution.
One camp consists of those who believe in protecting the integrity and sovereignty of the Constitution as originally written by the framers. This camp is comprised of advocates of a concept known as originalism. The other camp consists of those who believe the Constitution should continually change to match the ever-changing socio-cultural trends in America; trends that reflect the beliefs of their ideological soul mates. This group also tends to believe that international treaties and laws can be allowed to take precedence over the Constitution. This camp is comprised of advocates of the concept known as the living Constitution and more recently textualism. This column explains the concept of originalism. A separate column explains the concepts of the living constitution and textualism.
Originalism is an approach to interpreting the Constitution that is informed by and honors the original intent of the framers or the original meaning of the words used by the framers. It also views the Constitution as a sovereign document that, in turn, protects the sovereignty of the American people. Originalists fall into two categories: advocates of original intent and advocates of original meaning. Original intent and original meaning advocates both believe that there is a fixed authority when it comes to interpreting the Constitution, but they differ concerning what that authority is. Original intent advocates believe that what the framers of the Constitution meant by their words when they wrote them should be the deciding authority in matters of interpretation. Original meaning advocates believe that what a reasonable person living at the time of the development of the Constitution would have thought the words in it meant should be the interpretative authority.
Determining the intent of the founders or the meaning of their words requires people to do something very few Americans do any more: study not just the Constitution, but other founding documents such as The Federalist Papers. This enlightening work contains the complete record of the debates that occurred in the Constitutional Convention and the state ratification conventions in which supporters of ratification had to debate and ultimately refute the criticisms of astute anti-Federalists who opposed ratification (perhaps the most famous opponent being Virginia’s George Mason). One of the reasons these crucial volumes are not taught today is that leftist professors do not want their students to know the original intentions of the framers.
Prominent advocates of originalism include Supreme Court Justices Antonin Scalia and Clarence Thomas. The benefits of originalism include the following:
- Originalism gives Constitutional authority to the people governed thus ensuring the sovereignty of the governed.
- Originalism defers to the process of change established by the founders—the amendment process. The amendment process gives Americans a way to respond to socio-cultural changes while still protecting the Constitution and, in turn, the American people from fickle societal trends.
- Originalism protects Americans from the personal agendas, values, and biases of individual judges. It constrains judicial interpretation that is biased by personal preferences.
- Originalism provides stability and predictablility—two foundational legal concepts—and protects against arbitrary decisions and interpretations by judges, legislators, and presidents trying to advance a political agenda or act on personal bias.
- Originalism protects the very purpose of the Constitution—to keep judges from constantly reforming what America is and what it means to be an American.
- Originalism provides common ground for interpreting the Constitution—the original intent or the original meaning of the founders. Other approaches have no common ground and no objective or honest means for arriving at a valid interpretation.
- Originalism protects against the politicizing of the judicial branch (which was explicitly rejected by the framers but which is now a fact of life in America precisely because of the actions and decisions of living Constitution advocates).
- Originalism guards against laws being made by the judicial rather than the legislative branch by forcing judges to ask “What do the words say?” rather than “What would I like the words to say?”
- Originalism protects the sovereignty of the Constitution by ensuring that it does not become subservient to international treaties or law.