Originalists interpret the Constitution based on what they thought the Founding Fathers intended at that time.
In this question, compare originalism to the two other types of interpretation i.e loose constructionism and strict constructionism. Make sure you look at both (or more) sides throughout in order to keep your answer balanced
The paragraphs in red are the strongest points
Introduction; Include all the key terms in your intro. Then briefly talk about the purpose of interpreting the Constitution (judicial review), the meaning of originalism and why it is a good/bad way to interpret the Constitution. Then end by stating whether you think originalism is an appropriate way to read the Constitution
YES- Protection of civil liberties
Originalists understand and advocate the desire of the Founding Fathers to prevent tyranny and the oppression of individual rights. Although they have a narrow interpretation of ‘Securing the blessings of liberty’, originalists tend to support more conservative rights such as Second Amendment rights District of Columbia v Heller case 2008 and freedom of corporate speech through campaign donations eg Citizens United v FEC 2010 AND McCutcheon v FEC 2014
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NO - Protection of civil liberties
The nature of civil liberties is dynamic. It has evolved over the years; the right to privacy was only introduced in 1973 as a result of the Roe v. Wade ruling. The application of equal protection and liberty is now extended to women and descendants of slaves, which is in conflict with the original meaning of the Constitution.
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Bork believed that interpreting the Constitution in accordance with its original meaning was the way to prevent an elite group of judges from diverting democracy away from elected representatives. Non-originalism encourages the Supreme Court to be ‘politicians in robes’. eg some argue that judges have become too sensitive to public opinion eg the role of amicus curiae briefings in Grutter v Bollinger 2003 over 350 amicus curiaes (record number) were submitted which affected the decision
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For the Court to be a legitimate institution, it needs to have some degree of public support. In fact, if there is strong public aversion to a Court decision, the elected executive or legislature may decide to effectively overturn the ruling through an amendment or law. Originalism is clearly not popular, demonstrated by Bork’s unanimous rejection. Many constitutional precedents that dont have originalist support are backed by public opinion eg Brown v Board, Roe v Wade, Hollingsworth v Perry 2013. Trade off between independence and public support. Should a Court not have the respect of its people?
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Elected officials are unlikely to uphold the Constitution at the expense of their popularity or seats in power. As such, representatives would be unwilling to oppose public opinion.
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NO- Assumes there is a single unified meaning. There were over 50 contributors to the formation of the Constitution and they could not all have had the same views. In addition, from the preamble, it is clear that the Founding Fathers understood that the Constitution was not only for themselves but also for the Posterity. (got this point from Wikipedia)
It is inevitable that future generations will have alternative social perspectives from their predecessors.
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As Scalia often says in support of originalism, if the public wants a change, a law or constitutional amendment should be passed. The Constitution is meant to impede change, not adapt to sporadic popular opinion.
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The amendment process is too difficult in practice. Firstly, two thirds of Congress or state constitutional conventions must propose an amendment, followed by a ratification of two-thirds of Congress or state conventions. It is not easy to obtain a supermajority twice in such a polarised Congress; in addition, the Founding Fathers did not foresee the difficulties in mobilising public opinion of over 330 million+ people. Court interpretations are de facto revisions to the Constitution. This is why it was so difficult to ratify the Equal Rights Amendment AND the Washington DC voting rights amendment
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Originalism does not have jurisdiction over the whole Constitution; there are some cases where the Constitution must be interpreted in accordance with its original meaning such as 7th Amendment cases. But there are also cases where originalism cannot govern the interpretation. For example, the original meaning of the Equal Protection Clause pertained to African Americans.
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Firstly, originalism is the most apolitical method of interpretation, as verdicts become less susceptible to individual judicial philosophies. With a 'living Constitution', judges will find it difficult to separate their personal views from rulings. eg Obama mentioned the role of a judge’s heart in a difficult case
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However, it is difficult to ascertain the original meaning of the Constitution. The Supreme Court justices were not present in the Philadelphia Convention; they are limited to analysing documents and works of authority of over two hundred years ago to attempt to understand the Founding Fathers’ intentions. Naturally, this results in inconsistency of interpretation; the same problem originalists base their refutation of loose constructionism on. This is demonstrated by the fact that no originalist judge is critical of the Brown v Topeka Board of Education decision despite the clear original intention. Thus, the Supreme Court should not interpret the Constitution in accordance with its original meaning.
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It is inevitable that different Supreme Courts will have different Justices with different views, which fosters instability in rulings. This weakens the judiciary as a governmental institution by diminishing the legal and practical authority of precedent and the use of stare decisis. It can even lead to public disillusionment with the judicial process, as demonstrated by the March 2015 protests against the 2010 Citizens United v. FEC ruling. This case and the 2014 McCutcheon v FEC case overturned the precedent set in 2003 in McConnel v FEC. Arguably, if the Supreme Court interpreted the Constitution in accordance with its original meaning, the campaign finance reform verdicts would be predictable, which strengthens the rule of law and the authority of the Court.
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It is inevitable that future generations will have alternative social perspectives from their predecessors. Thus, loose constructionists tend to be judicially active, as they believe that society is always changing. According to them, precedent is important, but not more important than overturning a decision they believe is wrong. The longer the time period between a precedent and a case, the more likely the principle of stare decisis is likely to be ignored eg Lawrence v Texas 2003
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Yes because judges are experts in law, not economic or welfare policy. Thus, loose constructionists are unlikely to understand the social impact of their rulings, especially judges who exhibit judicial activism who tend to strike down laws as unconstitutional. eg Justice Holmes in 1923 dissented from the decision to strike down the minimum wage due to its potential impact. Perhaps this is why the Court upheld the Affordable Healthcare Act in National Federation of Business v Sebelius in 2012
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Conclusion; Your final paragraph. Here, say which side you support and why (it protects civil liberties, it prevents politicisation etc). You could also mention important factors to consider when interpreting the Constitution e.g. periods of hyperpartisanship is likely to decrease the number of bills Congress passes, which might make the Court more assertive
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