The topic of discussion for this Constitution Monday is the principle that all who make, interpret, and enforce the laws of our nation should be guided by the Constitution as it was originally written. We must observe the origin even though many people consider the Constitution to be a “living document” that changes to suit the times.
David F. Forte wrote a chapter in The Heritage Guide to the Constitution that explained why we need to stay with “The Originalist Perspective.” He explained that “Attorney General Edwin Meese III delivered a series of speeches challenging the then-dominant view of constitutional jurisprudence and calling for judges to embrace a `jurisprudence of original intention.” There ensued a vigorous debate in the academy, as well as in the popular press, and in Congress itself over the prospect of an `originalist’ interpretation of the Constitution. Some critics found the idea too vague to be pinned down; others believed that it was impossible to find the original intent that lay behind the text of the Constitution. Some rejected originalism in principle, as undemocratic (though it is clear that the Constitution was built upon republican rather than democratic principles), unfairly binding the present to the choices of the past.
“As is often the case, the debate was not completely black and white. Some nonoriginalists do not think that the Framers intended anything but the text of the Constitution to be authoritative, and they hold that straying beyond the text to the intentions of various Framers is not an appropriate method of interpretation. In that, one strain of originalism agrees. On the other hand, many prominent nonoriginalists think that it is not the text of the Constitution per se that ought to be controlling but rather the principles behind the text that can be brought to bear on contemporary issues in an evolving manner.
“Originalism, in its various and sometimes conflicting versions, is today the dominant theory of constitutional interpretation. On the one hand, as complex as an originalist jurisprudence may be, the attempt to build a coherent nonoriginalist justification of Supreme Court decisions… seems to have failed. At the same time, those espousing originalism have profited from the criticism of nonoriginalists, and the originalist enterprise has become more nuanced and self-critical as research into the Founding period continues to flourish. Indeed, it is fair to say that this generation of scholars knows more about what went into the Constitution than any other since the time of the Founding….”
Mr. Forte continues by giving several reasons why originalism is being championed today: (1.) “It comports with the nature of a constitution, which binds and limits any one generation from ruling according to the passion of the times.” (2) “Originalism supports legitimate popular government that is accountable.” (3) “Originalism accords with the constitutional purpose of limiting government.” (4) “It follows that originalism limits the judiciary.” (5) “Supported by recent research, originalism comports with the understanding of what our Constitution was to be by the people who formed and ratified the document.” (6) “Originalism, properly pursued, is not result-oriented, whereas much nonoriginalist writing is patently so.”
Then Mr. Forte explained how to ascertain the original meaning of the Constitution. “All originalists begin with the text of the Constitution, the words of a particular clause. In the search for the meaning of the text and its legal effect, originalist researchers variously look to the following: (1) The evident meaning of the words, (2) The meaning according to the lexicon of the times, (3) The meaning in context with other sections of the Constitution, (4) The meaning according to the words by the Framer suggesting the language, (5) The elucidation of the meaning by debate within the Constitutional Convention, (6) The historical provenance of the words, particularly their legal history, (7) The words in the context of the contemporaneous social, economic, and political events, (8) The words in the context of the revolutionary struggle,
(9) The words in the context of the political philosophy shared by the Founding generation, or by the particular interlocutors at the Convention,
(10) Historical, religious, and philosophical authority put forward by the Framers, (11) The commentary in the ratification debates, (12) The commentary by contemporaneous interpreters, such as Publius in The Federalist, (13) The subsequent historical practice by the Founding generation to exemplify the understood meaning (e.g., the actions of President Washington, the First Congress, and Chief Justice Marshall),
(14) Early judicial interpretations, and (15) Evidence of long-standing traditions that demonstrate the people’s understanding of the words.”
I like Mr. Forte’s summary of why we should keep the originalist perspective: “Originalism does not remove controversy, or disagreement, but it does cabin it within a principled constitutional tradition that makes real the Rule of Law. Without that, we are destined, as Aristotle warned long ago, to fall into the `rule of men’.”
This summary reflects the reason why The Heritage Foundation published its guide to the Constitution.
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