Originalism in American Constitutional Interpretation： Origin， Development， Reasons for Adoption and Limits

LI+Jun

【Abstract】Nowadays in the United States of America， constitutional interpretation divides into two rival theories： originalism and living constitutionalism. Despite sustained criticism that has discredited originalists within certain comers of the legal academy， the originalism movement is a success by numerous measures.[1] There is always a necessity to do thorough research on the originalism theory playing a dominant role in American constitutional interpretation. In order to demonstrate the importance of adhering to original meaning of the Constitution as it is always done and ought to be done， this article is going to focus on the originalist aspects and discuss what originalism is， why constitutional interpreters need to be faithful to it and how to soberly treat it and improve it after discovering the limits of the theory.

0 Introduction

In the context of United States constitutional interpretation， Originalism is a principle of interpretation that tries to discover the original meaning or intent of the Constitution and a belief that the original meaning or intent of the constitutional language， should determine how the Constitution is interpreted today. It is based on the principle that the judiciary is not supposed to create， amend or repeal laws but only to uphold them.[2]On the opposite to modernism， which holds that the meaning of the Constitution can change over time as the legal and cultural context of the law changes， originalism favors a narrower definition， generally permitting more authoritarian laws.

As a methodology in constitutional interpretation， originalism owns its pros and cons. But there is an undeniable and remarkable function of the theory that it offers articulable and transparent criteria for discerning the meaning of ambiguous constitutional texts and helps consolidate the whole legal system by defining original terms and intents as well as assisting to maintain the stability of law itself. The research is also not going to avert the limits of originalism， since indeed a number of the opposing questions there can be solved easily while others cannot. Therefore， when it comes to the prospects of originalism， the methods used to make up for its limits should be carefully considered.

1 The origin and development of originalism in the US

The term“originalism” has been most commonly used since the middle 1980s， but none of the researches is able to show utter superiority to others on the origin of it.

According to justice， lawyers， the scholarship and even citizens in the rule-of-law society of the United States， it is broadly convinced that all constitutional interpretation is originalist.[3] In the US judicial and academic circles， to call oneself an originalist is not simply to proclaim fidelity to the Constitution but to privilege the original understanding of the document as against alterations to that understanding brought about through social change and judicial innovation.[4] However， most constitutional lawyers in America regard original understanding as relevant but not dispositive； precedent， unwritten implications from constitutional structure， contemporary public understanding， and political consequences are also relevant.[5] Contrarily， originalists generally are either less positive about these alternative sources of constitutional meaning or believe them irrelevant to constitutional meaning but appropriate in limited ways to the crafting of judicial decision rules.[6]

The academic discourse around originalism also distinguishes between constitutional interpretation and constitutional construction.[7] Interpretive originalists and constructive originalists conceptually belong to two separate schools， but this， is again a distinction maintained in academic field but generally unexpressed in judicial opinions or public discourse.[8] Nevertheless， originalism is a term that， today anyway， has content within a public discourse that extends beyond the law reviews.

Notwithstanding the “fact” that originalism has not “triumphed” in the fight with its opponent as some suggested in the wake of Heller，[9] it has proven persuasive in a nontrivial number of cases.[10] It lies squarely at the center of academic conversation in constitutional theory， and it is an important part of the national dialogue.

2 Reasons for fidelity

Facing the most basic question that why interpreters should interpret the Constitution according to its original meaning， one could think of it and reject a number of reasons； for example， Professor Reem Segev points out that if the justification is democracy， then it is not clear that interpretation according to original meaning promotes democracy today. But it needs to be ascertained that Originalism does not argue that we must follow original meaning because doing so furthers democracy. Rather， it argues that one should interpret the Constitution according to its original meaning （i） because of the way that the Constitution became law， that is， the authority empowered by whom and （ii） because of the reasons why it continues as law today.

The Constitution became law because of an array of acts of popular sovereignty.[11] It is popular sovereignty that empowered the Constitution and gave it the original meaning according to peoples will and decision which are contained in the sake of law. Additionally， the reason why the Constitution became law is not necessarily the reason why it continues as law today. The Constitution in the US continues as law today largely for rule-of-law reasons. In a continuously existing political system like the Americas， laws continue in force （i） until they are modified or abolished or （ii） until they expire.[12] The Constitution has been amended many times， but it has never been abandoned in the way that the Articles of Confederation were abandoned in the period between 1787 and 1788. The public has not wielded its constituent power to replace the 1787 Constitution with a new one.[13] Thus， it is the American legal cultures conception of the rule of law that explains the reason why the Constitution continues as law today： the text of the Constitution is law and the law continues in force until it is repealed or changed. The text can be changed but people have just not acted like that. And that is more likely because their awareness of rule of law values has been raised.

For popular sovereignty and rule of law reasons， the Constitution has to be comprehended relating to its original meaning pinned down by the framers. So we obtain that the same rule of law values that maintain the Constitution as law over time provide fundamental requirements for constitutional interpretation.

Furthermore， originalism argues for adhering to original meaning also because of its theory of what constitutions are and what they are for.[14] It argues that the Constitution creates a plan for politics that must be built out over time by successive generations.[15] In order to ensure remaining faithful to the same plan， the Constitution should be interpreted according to the semantic meaning of its terms at the time of adoption. Then living constitutionalism claims that social and political mobilizations are the engines of constitutional construction and help ensure the legitimacy of the constitutional system over long periods of time. But the fact that people are free to offer their own understandings of the Constitution and persuade others to agree with them does not mean that their readings are automatically either permissible constructions or faithful to the Constitution.[16]

3 Limits of originalism

Originalism theory， inevitably， owns a few fatal limits： It lays so much emphasis on the stability and certainty of text law that it costs the flexibility constitutional interpretation should have possessed； it ignores the impact， which is made by the interpreters subjective judgements towards values， the social factors and the common laws tradition of law making， on constitutional decisions.

Therefore， it needs to be carefully considered whether fixed texts must preserve completely fixed meaning without drawing a balance among other contemporary elements or not. After all， constitutions now exist during a brand new era with great changes and innovations almost arising daily， and if the interpretation of the statutes cannot keep abreast of the trend， it is very likely that the functioning of constitutions will be impaired greatly.

【References】

[1]Jamal Greene， Selling Originalism， 97 GEO. L.J. 657， 659 （2009）.

[2]Boyce， Bret， Originalism and the Fourteenth Amendment （July 16， 2009）. Wake Forest Law Review， Vol. 33， p. 909， 1998. Available at SSRN：http：//ssrn.com/abstract=1435069

[3]See MICHAEL J. PERRY， MORALITY， POLITICS， AND LAW 280 （1988） （expressing discomfort with the use of originalist and nonoriginalist labels because "[t]here is a sense in which we are all originalists"）； Lawrence B. Solum， Originalism as Transformative Politics， 63 TUL. L. REV. 1599， 1603 （1989） （"There is no meaningful distinction between originalist and nonoriginalist theories of constitutional interpretation."）；Paul Horwitz， The Past， Tense： The History of Crisis- and the Crisis of History-in Constitutional Theory， 61 ALB. L. REv. 459， 472 （1997） （reviewing LAURA KALMAN， THE STRANGE CAREER OF LEGAL LIBERALISM （1996）） （referencing the common claim that all constitutional lawyers are originalists， at least to some extent， because there is a shared recognition that "the original meaning of the Constitution has at least some relevance to its present meaning"）.

[4]88 Tex. L. Rev. 1 2009-2010

[5]Richard H. Fallon， Jr.， A Constructivist Coherence Theory of Constitutional Interpretation， 100 HARV. L. REV. 1189， 1189-90 （1987）.

[6]See ROBERT H. BORK， THE TEMPTING OF AMERICA： THE POLITICAL SEDUCTION OF THE LAW 157-58 （1990）； Mitchell N. Berman， Originalism Is Bunk， 84 N.Y.U. L. REV. 1， 35 （2009）； Antonin Scalia， Originalism： The Lesser Evil， 57 U. CIN. L. REV. 849， 861 （1989）.

[7]See RANDY E. BARNETT， RESTORING THE LOST CONSTITUTION： THE PRESUMPTION OF LIBERTY 99 （2004） （distinguishing interpretation， which determines the meaning of words， from construction， which "fills the inevitable gaps created by the vagueness of these words when applied to particular circumstances"）； KEITH E. WHITTINGTON， CONSTITUTIONAL INTERPRETATION： TEXTUAL MEANING， ORIGINAL INTENT， AND JUDICIAL REVIEW 7-11 （1999） （characterizing constitutional interpretation as "essentially legalistic" and constitutional construction as "essentially political"）.

[8]See Berman， supra note 32， at 38 n.100； Todd E. Pettys， The Myth of the Written Constitution， 84 NOTRE DAME L. REV. 991， 1011 （2009）.

[9]See， e.g.， J. Harvie Wilkinson III， Of Guns， Abortion， and the Unraveling of the Rule of Law， 95 VA. L. REV. 253， 254-55 （2009）； Randy E. Barnett， News Flash： The Constitution Means What it Says， WALL ST. J.， June 27， 2008， at A13； Posting of Dale Carpenter to The Volokh Conspiracy， supra note 3.

[10]See， e.g.， District of Columbia v. Heller， 128 S. Ct. 2783， 2821 （2008）； Apprendi v. New Jersey， 530 U.S. 466， 492 （2000）； Alden v. Maine， 527 U.S. 706， 712 （1999）； Printz v. United States， 521 U.S. 898， 905-18 （1997）.

[11]Jerusalem Review of Legal Studies， Vol. 7， No. 1 （2013）， pp. 57–86

[12]JACK M. BALKIN， LIVING ORIGINALISM （2011）.

[13]Bruce Ackerman has argued that， although most Americans do not realize it， the USA has actually had three different Republics， in which significant parts of the Constitution were altered in ways that were technically illegal under Article Vs amendment rules. 1 BRUCE A. ACKERMAN，W E THE PEOPLE：FOUNDATIONS （1991）； 2 BRUCE A. ACKERMAN，W E The PEOPLE：TRANSFORMATIONS （1988）. Ackermans brilliant and provocative theory， however， is not the generally accepted understanding of American constitutional history.

[14]Balkin， supra note 8， at 4， 35–6.

[15]SCOTT SHAPIRO，LEGALITY （2011） （comparing legal systems to social plans）.

[16]Balkin， supra note 8， at 88， 332–4.