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Interpreting the Constitution: Originalism

October 4th, 2005

There is a popular method of interpreting the Constitution among conservatives called “originalism.” The theory says that if there is ambiguity in the words of the Constitution you must revert back to what the original drafters believed it to mean. This way of thinking is most popular in area of 7th Amendment jurisprudence where the drafters used the term “common law.” We use the conception of common law from 1791 as the basis of what is and is not common law for the purpose of the 7th Amendment.

Conservatives, especially social conservatives, like originalism because it cannot be used to justify a constitutional right to an abortion. Since the words cannot be found in the document, and the drafters of the Constitution, Bill of Rights, or the 14th amendment had no intention of protecting the right to choose at the time of adoption, there is no room for such a right under the interpretive scheme. It also means a narrower reading of the 1st Amendment, the Commerce Clause, and a whole host of other items that allow the Federal government to get big and powerful.

Today I learned that originalism has a serious flaw, more so than the obvious problem that the Constitution shouldn’t be a stiff unbending document. It has to do with Brown v. Board of Education. There is an old saying about Constitutional theories: if you cannot arrive at the belief that Brown was rightly decided, then you don’t have a good theory. Problem being that the Congress which adopted the 14th Amendment, the Amendment which the Court in Brown said made segregated schools unconstitutional, approved of segregated schools in Washington, D.C. the same year it ratified the 14th.

Seems to me that represents pretty clear original intent that segregation was all fine and good. Which begs the question… do we really want justices who believe original intent is such a great interpretive theory?

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  1. Anonymous
    October 9th, 2005 at 02:37 | #1

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  2. Anonymous
    October 9th, 2005 at 05:09 | #2

    Well, two things, really. First, originalism isn’t that popular, even among conservatives. It’s just that those with whom it is popular are very very vocal about it, which brings coverage. Second, you can arguably use an originalist viewpoint to back up Brown, as DC is not a state, but the companion case, Bolling v. Sharpe, cannot be justified with that viewpoint.


  3. Anonymous
    October 9th, 2005 at 05:14 | #3

    Oh, but don’t think I don’t agree that originalism is dangerous and flawed as a theory, because it is, and we should be wary of those who subscribe to it.


  4. Sean Kellogg
    October 9th, 2005 at 06:12 | #4

    The 14th Amendment Equal Protection Clause isn’t limited to States, so I’m not sure how you argue to make the distinction.

  5. srcastic
    October 10th, 2005 at 22:20 | #5

    Under an originalist interpretation, the 14th Amendment would be limited to states, but not to DC. The plain text supports this, as the Equal Protection Clause only speaks to states – a category that DC is not included in.

    “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

  6. Sean Kellogg
    October 10th, 2005 at 22:28 | #6

    Fair enough, but doesn’t that prove my point? The 14th amendment does not apply to D.C. under the originalism view, which means that Brown should not be applicable to the Federal Government. Seems that fails my test for theories that are “good.”

    And I also think the Court has been pretty clear that the Feds are treated like a State when they are regulating D.C. I wonder how that opinion squares against the intent of the drafters of the Conclave Clause?

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