Talk:Originalism

Removal of Globalize banner?

Given that originalism is almost entirely a US phenomenon, I suggest we remove the banner suggesting more perspectives from outside of the USA. — Preceding unsigned comment added by Xam2580 (talk • contribs) 03:43, 23 November 2023 (UTC)

There are some sources for Australia but not seeing anything major requiring a banner. Antignomi (talk) 22:42, 30 July 2024 (UTC)

Original research

These sections were removed for significant original research that was flagged two months ago but still not addressed.

Discussion

Function of constitutional jurisprudence

Dissenting in Romer v. Evans, Scalia wrote:

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.

This statement summarizes the role for the court envisioned by originalists, that is, that the Court parses what the general law and constitution say of a particular case or controversy, and when questions arise as to the meaning of a given constitutional provision, that provision should be given the meaning it was understood to mean when ratified. Reviewing Steven Douglas Smith's book Law's Quandary, Scalia applied this formulation to some controversial topics routinely brought before the Court:

It troubles Smith, but does not at all trouble me—in fact, it pleases me—that giving the words of the Constitution their normal meaning would "expel from the domain of legal issues ... most of the constitutional disputes that capture our attention", such as "Can a macho military educational institution dedicated to what is euphemistically called the 'adversative' method admit only men? Is there a right to abortion? Or to the assistance of a physician in ending one's life?" If we should read English as English, Smith bemoans, "these questions would seemingly all have received the same answer: 'No law on that one.'" That is precisely the answer they should have received: The federal Constitution says nothing on these subjects, which are therefore left to be governed by state law.

In Marbury, Chief Justice John Marshall established that the Supreme Court could invalidate laws which violated the Constitution (that is, judicial review), which helped establish the Supreme Court as having its own distinct sphere of influence within the federal government. However, this power was itself balanced with the requirement that the Court could only invalidate legislation if it was unconstitutional. Originalists argue that the modern court no longer follows this requirement. They argue that, since U.S. v. Darby, the Court has increasingly taken to making rulings in which the Court has determined not what the Constitution says, but rather, the Court has sought to determine what is "morally correct" at this point in the nation's history, in terms of "the evolving standards of decency" (and considering "the context of international jurisprudence"), and then justified that determination through a "creative reading" of the text. This latter approach is frequently termed "the Living constitution"; Scalia inveighed that "the worst thing about the living constitution is that it will destroy the constitution".

Matters rendered moot by originalism

Originalists are sharply critical of the use of the evolving standards of decency (a term which first appeared in Trop v. Dulles) and of reference to the opinions of courts in foreign countries (excepting treaties to which the United States is a signatory, per Article II, Section 2, Clause 2 of the United States Constitution) in Constitutional interpretation.

In an originalist interpretation, if the meaning of the Constitution is static, then modern sensibilities are irrelevant and should not form any part of constitutional jurisprudence. Additionally, foreign laws or morals (if they had no impact on the original drafting) are completely irrelevant. The Constitution is thus fixed and has amendment procedures to change. The exception to the use of foreign law is the English common law, which originalists regard as setting the philosophical stage for the US Constitution and the American common and civil law. Hence, an originalist might cite Blackstone's Commentaries to establish the meaning of the term due process as it would have been understood at the time of ratification.

Many originalists have serious disagreements with substantive due process. Justices Scalia and Thomas have called the doctrine an “oxymoron". These originalists view the due process clause as solely referring to procedural due process. To justify the incorporation or the discovery of unenumerated rights, Justice Gorsuch and Justice Thomas would prefer that the court rely on the Privileges and Immunities Clause rather than substantial due process. Not all originalist judges agree with the criticism of substantive due process.

References

Originalist test/framework in Bruen/other SCOTUS cases

Adding discussion section to address this issue if anyone has thoughts/wants to comment. The supreme court has been using originalism in new ways and has been constructing tests to constrain lower courts based on originalism; I think it is relevant and could use more detailed analysis. It is a more modern practice with limited scholarship, making it difficult to put on wikipedia. I also think it is pretty clear that a quasi-originalist/originalist framework has been used in 7th amendment jurisprudence. Happy to discuss/have other input.