Originalism, or, Original Intent

"Original intent" or "intentionalism" is a theory of  constitutional interpretation which holds that the Constitution must be interpreted according to the intent of the Framers when they drafted it.  Originalists think that the best way to interpret the Constitution is to determine what the Framers intended the Constitution to mean. They look to several sources to determine this intent, including the contemporary writings of the framers, newspaper articles, the Federalist Papers, and the notes from the Constitutional Convention itself.  According to this view, the text of the Constitution means what the Framers intended it to mean.  If a constitutional provision is unclear, the task of the judge is to discover the intent of the framers.  If there is an unclear turn of phrase in the Constitution, who better to explain it than those who wrote it?

In his time, Thomas Jefferson issued a stern reminder to Justice William Johnson: "On every question of construction, carry ourselves back to a time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."

James Madison declared, "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution..."

Justice James Wilson, one of six men who signed both the Constitution and Declaration of Independence, reasoned, "The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it."

Likewise, Justice Joseph Story, a great legal scholar in early America, claims: "The first and fundamental rule in the interpretation of all instruments is to construe them according to the sense of the terms and the intention of the parties."

It is important to remember exactly why an amendment process was written into the original Constitution.  George Washington, in his Farewell Address, declared that there is but one legitimate way to change the Constitution: "If, in the opinion of the people, the distribution or the modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed."

There are many positive aspects to "original intent." First, this approach acts as its own judicial restraint, by recognizing the role of the court under the constitutional separation of powers. Secondly, it ensures that there is a distinction between personal activism and constitutional necessity.  Finally, it ensures that judges all use the same standard when issuing an opinion. Imagine playing tennis with a panel of judges disagreeing about what constitutes a ball being "out of bounds." Rulings would be arbitrary and chaotic.

Opponents of originalism note several points. First, the Constitution may have been the product of the Framers, but it was ratified by hundreds of delegates in 13 state conventions - should not the opinions of these people hold even more weight? Also, the Framers were a diverse group, and many had issues with specific parts of the Constitution. Whose opinion should be used? Next, do the opinions of a small, homogeneous group from 200 years ago have the respect of the huge, diverse population of today? To a black woman, how much trust can be placed in the thoughts of a white slave owner who's been dead for generations?