Two Views of the Constitution: Originalism vs. Non-Originalism

I am a Libertarian, not a conservative, and I am in the originalist school of interpreting the Constitution. Supreme Court Justice Antonin Scalia defined “originalism” this way:

“The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.” This applies to each and every one of the Amendments.

That means to understand what the Constitution means you have to understand how the writers understood the words they used to write the Constitution. That is in opposed to the Progressive’s Living Document way of applying the Constitution. The originalist doesn’t look to give the Constitution meaning, they look to understand what the original writers meant when they wrote it, and then apply that meaning to today’s issues. How judges line up on this divide is decided by the election of the President, and the justices he appoints to the bench. This is why election matter so much, and one of the consequences if elections.

It is the Living Document school of interpreting the Constitution that bends the meaning of the Constitution to fit how they wish to shape the law of the land. This article demonstrates how the two sides of this divide see how things that come before the Court should be decided.

This, by Katie Vloet, explains the divide very well:

 

Two Views of the Constitution: Originalism vs. Non-Originalism By Katie Vloet September 22, 2015

This year’s U.S. Supreme Court decision in Obergefell v. Hodges, regarding the fundamental right to marry, provides a useful lens through which to view the differences between originalist and non-originalist views of the U.S. Constitution, the U-M Constitution Day speaker said.

“It’s really a microcosm of the legal debate about how we interpret the Constitution,” John Bursch said on September 17 at Michigan Law. Bursch argued Obergefell on behalf of Michigan, Tennessee, and Kentucky earlier this year (listen to oral arguments).

Bursch presented benefits and challenges of both interpretations of the Constitution: originalism, in which the meaning of the Constitution is interpreted as fixed as of the time it was enacted, and non-originalism, in which the meaning of the Constitution is viewed as evolving with changes in society and culture.

“Non-originalists would say that the same-sex marriage decision is the perfect example of why courts need some flexibility to depart from the text, structure, and original intent,” Bursch said, and that, although changes were already happening in state laws about same-sex marriage, they were happening “at a snail’s pace.” A non-originalist, he said, would argue “that this case was decided correctly because it focused on the liberty and personal dignity that were the animating principles of the Constitution.”

The originalists—including the four dissenters in the Obergefell opinion—would say that the justices in the majority “used substantive due process to amend the Constitution by judicial fiat,” Bursch said. An originalist also would say that this is a “classic instance of the justices imposing their own personal values about the way that they thought the country should be going rather than an application of simple, neutral, objective criteria. The dissenters pointed out that the democratic process was working; laws were changing. … By taking this issue away from the people who passed [marriage] referendums in all of these states, the majority hurt democracy.”

Fight the good fight.

 

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Published in: on March 1, 2018 at 08:16  Leave a Comment  
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