Originalism is a legal theory that interprets the US Constitution based on the meaning of its words to a reasonable person in 1700s America, using historical evidence. It opposes the idea of a “living constitution” and differs from the original intent theory. The theory examines phrases in the Bill of Rights in their historical context, such as “cruel and unusual punishment” and “freedom of speech.” The Ninth Amendment allows states to handle issues not addressed by the Constitution, and any broadening of its scope should be through a constitutional amendment.
The original meaning refers to a legal theory of constitutional interpretation, which holds that the United States Constitution should be interpreted consistently with what its words would have meant to a reasonable man in 1700s America. The theory, sometimes referred to as “originalism,” it also relies on historical evidence to determine the meaning of particular words at the time they were used. Originality is in opposition to the concept of a “living constitution,” where the meanings of words in the constitution change over time as society changes. It is also different from the original intent theory of constitutional interpretation, which looks at what the authors would have intended words to mean.
Originality looks not at what the authors would have intended the words to mean, but at what an ordinary citizen of reasonable intelligence would have intended them to mean at the time they were written. Phrases in the Bill of Rights such as “the right to bear arms,” ”freedom of speech,” or “cruel and unusual punishment” must be examined in their historical context. In particular, the current events, articles and opinions of the time are relevant for an interpretation of the original meaning of the words.
For example, regarding the phrase “cruel and unusual punishment,” the originality does not look at the contemporary meaning of that phrase, as a living interpretation of the Constitution might. Also, originality would not examine the Framers’ intent to determine the original meaning of the sentence. A particular type of punishment might be considered cruel and unusual even if the perpetrators had never considered it, as long as a reasonable person in the historical context of 1700s America could think so.
Similarly, in regards to free speech, early constitutional cases treated verbal statements and symbolic acts equally. Whether this was the original meaning of “free speech,” the originals note, was largely determined by the historical events surrounding the drafting of the Constitution. Many settlers participated in political protests involving things like burning flags, laws, and effigies of government officials. Often the public gatherings were disguised political protests where secret symbols and signs were used instead of words.
In situations where the Constitution is silent on a subject, the originality argues that the Ninth Amendment allows states to handle any issue that the Constitution does not address or prohibit. Furthermore, matters that the Constitution does not address should not be decided by the Supreme Court. Any broadening of the scope of the Constitution should be through a constitutional amendment as stipulated in Article V of the Constitution. Under the provisions of Article V, an amendment must be approved by three-quarters of the states, demonstrating a consensus among the people after time for debate and deliberation.
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