Table Originalism v Non Originalism PDF

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Originalism v. Non-Originalism 

An “originalist” argument asserts that the Constitution must be interpreted according to some version of original understanding of the Constitution. The precise arguments embraced by originalism have shifted significantly over time. Generally speaking, three important variants can be identified: Original Intent; Textualist; Text and Principles

ORIGINAL INTENT 

Strong Originalism

TEXTUALIST

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New Originalism

TEXT AND PRINCIPLES 

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Living Originalists Progressive Originalists

NON-ORIGINALISTS 

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Living Constitutionalists1 Strong Non-Originalists

An “original intent” approach looks at the intent of the framers or ratifiers of the Constitution. For example, such an argument might assert that, if integrated public schools or same sex marriage were not specifically intended by the framers or ratifiers of the Fourteenth Amendment to be included in the concepts of due process or equal protection, we should not interpret the Fourteenth Amendment to embrace those practices today. A “textualist” variant focuses on “original public meaning” rather than original intent. In this view, the relevant understanding is not that of the framers, but that of the people who ratified the relevant text. Since it is the ratifier’s understandings that matter, the best way to understand the original meaning is not to look to the subjective intent of the framers, but to the objective meaning the words had at the time of the ratification of the Constitution (or amendment), because these are the meanings that would have been ascertainable to the ratifiers. Another group of originalists use what they call a “text and principles” approach. These originalists agree that the original public meaning of the Constitution is binding, but resist the efforts of other originalists to read the Constitution as embodying only rules. The Constitution, these originalists argue, also embraces standards/principles. Fidelity to original meaning thus requires ascertaining the level of abstraction at which a particular provision was intended to be applied. For example if the original purpose of the Equal Protection clause was to embrace a broad principle of equal citizenship, then what is protected under the clause must change over time as necessary to ensure that that promise continues to be fulfilled. Strong “non-originalists” differ from originalists in that they do not source their arguments in fidelity to original meaning, however defined, Instead, advocates of this position argue for a “living Constitution” whose interpretation evolves to incorporate changes in contemporary fundamental values. A nonoriginalist might argue that racially desegregated schools violate contemporary norms of equality and therefore are unconstitutional, whatever mid-19th century politicians may have believed. Note that non-originalists and text and principle originalists will often reach the same result in particular cases, but will just do so for different reasons.

1 In the 2010s constitutional theorists attempted to domesticate the perceived extremism of Living Constitutionalism by reconciling the principles of a living Constitution with the tenants of New Originalism. That reconciliation resulted in the Text and Principe method and produced monikers such as “Living Originalist” and “Progressive Originalist.”...