Understanding Originalism vs Non-Originalism in Constitutional Interpretation

The difference between an originalist and a non-originalist when it comes to constitutional interpretation is a fundamental debate in legal theory and practice. This conflict centers on how one interprets the Constitution and other laws, and what role the judiciary plays in the process.

What is Originalism?

Originalist interpretation, as the name suggests, seeks to derive meaning from the text as it was when it was originally written. For an originalist, the Constitution is a living document, but its original meaning remains fixed. The judiciary has the responsibility to interpret the Constitution based on the intentions of the framers and the original framework of the document.

Non-Originalism: Evolution and Interpretation

A non-originalist approach, on the other hand, believes that the Constitution and laws evolve with the changing times. This means that the interpretation of the Constitution can change based on contemporary societal norms, values, and scientific advancements. The lawmakers or judges interpret the text based on what they believe the Constitution means at the current time. This approach allows for a more flexible and adaptive legal framework.

Key Differences and Arguments

The fundamental difference between these two approaches lies in the inflexibility or adaptability of the Constitution. Originalists argue that the Constitution should not be changed or interpreted based on modern values and understandings. According to this view, the death penalty, for example, was not considered cruel and unusual punishment when the Bill of Rights was added. Therefore, the Constitution as written should be applied in its original context.

Non-originalists counter that the Constitution, as a document, has to be relevant to modern times. The example of the death penalty is used to illustrate this point. The founding fathers did not anticipate the advancements in social and scientific understanding that have occurred since then. Therefore, a non-originalist might argue that the death penalty is now recognized as cruel and unusual based on modern insights and societal values.

The Implications for Judicial Power

One of the core arguments against non-originalism is the concept of judicial power. Originalists argue that the judiciary should not have the authority to change the meaning of laws or the Constitution. They believe that this interpretation allows the judicial branch to usurp the powers of the other branches of government, particularly the states or the Congress.

The argument against non-originalist interpretation is stark: it views the Constitution as a living document that is subject to change based on modern interpretations. This can lead to a situation where the judiciary has the ultimate say in what the Constitution means, which critics argue is a violation of the separation of powers.

The Historical Context

To understand the debate, one can draw parallels to historical contexts. The Animal Farm by George Orwell, for example, is frequently cited as an allegory for the progression of non-originalist judicial interpretation. The book’s message that “all animals are equal, but some are more equal than others” reflects how the application of laws can become skewed based on modern interpretations.

In the context of the Constitution, originalism argues that the meaning of certain terms, such as “gay,” should be determined by the understanding of the writers at the time of writing, as opposed to what the term means today. For instance, if the Constitution had mentioned a “national day of gaiety,” the meaning would be based on the 18th-century definition of gaiety, not the modern definition of “gay.”

Black’s Law Dictionary and Legal Principles

Legal scholars also commonly cite Black’s Law Dictionary as a key reference for understanding the principles of constitutional interpretation. According to Black’s Law Dictionary, the terms in the Constitution should be understood based on their common parlance at the time of writing. This principle underscores the idea that seeking to interpret old words by modern meanings is fundamentally flawed and, therefore, the entire idea of non-originalist interpretation is erroneous.

Essentially, the originalist approach argues that the meaning of the Constitution is locked in its original form, reflecting the framers’ intent, while the non-originalist view sees the document as a living, evolving instrument that must be interpreted in the context of contemporary values.

Given these points, it is clear that the choice between originalism and non-originalism is a significant one, with profound implications for the interpretation and application of the Constitution. Whether one believes in an inflexible and fixed interpretation or a flexible and adaptive approach, the principles at stake are fundamental to the governance and values of a modern society.