Originalism is more than just one type of interpretation or Jurisprudence in regards to the Constitution. There are three main types of Originalists, Original Intent, Original Meaning, and Constructionist [textualist]. All of do have common threads, with perhaps the most important one being, the Constitution is a document of limits on the Government and is designed to protect the “inalienable rights” [Natural Rights according to Locke and Montesquieu], and it is the Judges and Justices job to determine what Law is, not what Law should be. The methods of determining what Law is is done differently depending on the type of Originalist one may be.What law should be to an Originalist is a function of the Legislature, it is the job of the Courts to determine how it is applied in Justice, what was the intent of Congress in the law, and whether it abides by the confines of the Constitution, WHAT LAW IS not if it is what some or that Judge or Justice would want the law to be. To an Originalist, Judges are to act only as “Umpires” to law, not judge if a law is moral or if the law is outdated, they believe morality of law is a function of the Legislature and if it is outdated, that is also the domain of the Legislature to repeal it, not the Judicial Branch to negate it, provided the law abides by the confines of the Constitution.
Original Intent
Original Intent can be broken into two more types of intent, functional and motivational. Functional Intent is the actual intent of what those who drafted the Clause [whether part of the Constitution proper or an amendment], how was it they wanted this clause to function. An example of this would be Article I Section 1.- All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
The intent of the Drafters of the Constitution intended that the Legislative Branch consist of two separate Houses, the House of Representatives and the Senate. That by being the Legislative branch, they were charged with making law, and by stating “All Legislative Powers”, only the Congress had the power to make law no other body or entity can make law, since it was assumed by the Drafters that the function of a legislature was to make law.
How one who believes in Original Intent in the Functional way comes to the conclusion, is by using source documents from the debates and proceedings of the drafting debates. Some examples of these sources may be, Madison’s, King’s, Yates’ Notes from the Convention of 1787, Debates and Proceeding in the Congress for the period, the Journal of Committees or the Floor, etc. It is by analyzing these source documents to try to ascertain “what was the Clause designed to accomplish”.
On Motivational Intent, what the objective of the Clause was to accomplish is examined in a broader realm, but still restrictive. Perhaps a Clause is not absolutely clear as to what it includes, or implies a “general” limit to its design, or current situations are not directly addressed, but perhaps the context is.. This is where the “Motivation” of the Clause comes into play on intent. An example is how the Air Force is applied in Article I Section 8.
- To provide and maintain a Navy;
- To make Rules for the Government and Regulation of the land and naval Forces
So how does the Air Force get applied? Can Congress regulate the Air Force? By looking at the motivation of these two clause, an Originalist looking at intent would see that, Congress is charged with maintaining a Navy, to provide for ship building or other means to procure a Fleet, and is also charged with the governing and the regulation of the Land and Naval Forces. By looking at the period in which this was written, an Originalist would see by using “Forces”, the implication is armed or militarized. ALL Armed Forces during this time where either Land or Naval Forces, so the motivation of this clause was to Govern and Regulate the Armed Forces, which includes the Air Force today. By seeing the motivation in this Clause, an Originalist using intent would agree Congress has the Power to regulate and govern the Air Force, even though it is not expressively mentioned.
The method of determining intent is the same as it is for functional, by using the source documents of the period in the drafting of the clause.
Original Meaning
Justice Oliver Wendell Holmes contends that interpreting what was meant by someone who wrote a law was not trying to "get into his mind" because the issue was "not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used."(1) This is what Original Meaning is, “what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used”.Original Meaning differs from Original Intent in that what the drafters thought or wanted is less important, but what it meant to the average American when ratified being the important issue. Someone who uses Original Meaning, is concerned with what it meant to the average American, what did those words used at the time of ratification mean in the context of the time. In Original Meaning, the use of the words is important, and in particular what those words meant in the period, not what it may mean today.
An example of the use of Original Meaning can be seen with Article I Section 7
- All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
In Original meaning, it would be ascertained what the meaning of these words meant at the time. Revenue since it is used in other parts of the Constitution, and was also commonly used in the time as well in other documents, it would be seen to mean, Taxes, tariffs, Excises, and Duties. So in Original Meaning, it would be proper to view this clause as also saying.
- All Bills for Taxes, tariffs, Excises, and Duties shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
Now this may seem the same as Intent, but what is looked at in determining meaning and different from intent, is the meaning of the words, using Dictionaries of the period, Periodicals of the time, and other References of the word or Term to determine what was the “common” implication when used in a similar context. Original Intent would rather explore the Debates on why “revenue” was used, to what it was meant to mean or what the goal was for it to be. In Original Meaning it is explored to what “revenue” meant to the average American, by exploring its use in similar situation through documents of the era, to understand how it would have been understood by those who read it and understood it during that time.
Constructionist
Constructionist, also called textualist, is to view the Constitution only as it is written, meaning and intent have no part in determining what Law is. To a Constructionist, what the clause says, is what it means and intends. If the Clause addresses the issue at hand the text resolves it with what the text of the Clause says itself to provide the answer to the Law. If the Clause does not contain the question/answer at hand, nor any other Clause in the Constitution, it can not be answered by the Constitution proper nor any but one of the Amendments, the exception being the 10th Amendment. The 10th Amendment would relegate the decision/power to the state in question which originated the Law. If it was between states, the court would confer with the appropriate authority that controls actions between the states, Congress. The court would determine 1. Does the law in question abide by Congressional Regulations 2. Does Congress have the Authority to regulate this Law? It would then base its decision of of this.Constructionalism is straight forward, and is the reading and applying the text [as the words meant at the time] and determining Law from this. An example of this would be the 14th Amendment:
- …nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This amendment was ratified in 1868. To a Constructionist the part, “nor deny to any person within its jurisdiction the equal protection of the laws”, would mean no person can have any less rights than another, yet woman were still denied the right to vote. For a Constructionist, this Clause prohibits denying woman the right to vote since no one can be denied equal protection of the laws, but it still took 52 years and the 19th Amendment in 1920 to prohibit the denying woman the right to vote.
The Rule of Law
For all Orginalist the basic beliefs are that the Constitution is the Authority in which the government operates, and is done by the consent of the People, and the people expect it to be followed. It is a binding contract of conduct between the legitimate power [the people] and the acting power [the government], as in all contracts it defines what the limits of it are. These limits are defined, or accounted for in some manner. It is not a Judges place to determine if a law is good or bad law, just if the law if legal or not in terms of the limits on the contract [Constitution].Originalists also understand that some limits or restrictions may no longer be prudent, but contend it is not the place of Judges to state the limit may be broken or to change them, but rather that is a function of the People through the Congress and State Legislatures to change the limits by amendment, not the courts. Originalists do not believe that the limits of the Constitution should be moved by a few select people, but the rule of law must prevail.
As Justice Antonin Scalia stated:
“Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected.”
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