Originalism

Originalism is a legal principle that relies on historical review of the intent of a law or constitutional provision at the time of passage. Originalists argue that the U.S. Constitution has a static meaning that can be determined through study. Former U.S. Supreme Court Justice Antonin Scalia was known for his views of originalism. This viewpoint is opposed by non-originalists, who argue for a living constitution and evolving legal interpretations.

Support

Justice Scalia made the following arguments for originalism in a 2010 lecture at the Thomas Jefferson Center for the Protection of Freedom of Expression:

• "My burden is not to show that originalism is perfect, but that it beats the other alternatives, and that, believe me, is not difficult."
• "Of course [the Constitution's] provisions have to be applied to new phenomena...It is essential to originalism, as it is not to so-called 'evolutionary constitutional jurisprudence,' to know the original meaning of constitutional provisions."
• "I deny the premise that law has nothing to do with historical inquiry...Historical inquiry has nothing to do with the law only if the original meaning is irrelevant."

Opposition

U.S. Supreme Court Justice Stephen Breyer expressed opposition to originalism in his majority opinion for National Labor Relations Board v. Noel Canning from June 2014:

“	The Recess Appointments Clause responds to a structural difference between the Executive and Legislative Branches: The Executive Branch is perpetually in operation, while the Legislature only acts in intervals separated by recesses. The purpose of the Clause is to allow the Executive to continue operating while the Senate is unavailable. We believe that the Clause’s text, standing alone, is ambiguous. It does not resolve whether the President may make appointments during intra-session recesses, or whether he may fill pre-recess vacancies. But the broader reading better serves the Clause’s structural function. Moreover, that broader reading is reinforced by centuries of history, which we are hesitant to disturb. We thus hold that the Constitution empowers the President to fill any existing vacancy during any recess—intra-session or inter-session—of sufficient length. JUSTICE SCALIA would render illegitimate thousands of recess appointments reaching all the way back to the founding era. More than that: Calling the Clause an “anachronism,” he would basically read it out of the Constitution. He performs this act of judicial excision in the name of liberty. We fail to see how excising the Recess Appointments Clause preserves freedom. In fact, Alexander Hamilton observed in the very first Federalist Paper that “the vigour of government is essential to the security of liberty.” The Federalist No. 1, at 5. And the Framers included the Recess Appointments Clause to preserve the “vigour of government” at times when an important organ of Government, the United States Senate, is in recess. JUSTICE SCALIA’s interpretation of the Clause would defeat the power of the Clause to achieve that objective.	”
—Stephen Breyer (2014),

See also

• Index of terms

External links

• The Heritage Guide to the Constitution
• University of Chicago Law School, "Originalism: A Debate"
• Search Google News for this topic