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Kanab, Utah

November 9, 2020

I've taken the opportunity while I am staying out of the snow to read some articles about "originalism." I figured it was a term that has been used since, well, the 18th century. Seems not. It is a term that came into "popular" use in the 1980s.

Most articles I have found on the topic are too lawyerly or too advocating (you can find one such article here I found the following article to be just about right level of detail for me to understand the subject. In case it is helpful to you....

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."

In remembrances of the justice, the term has been used often — but it's more than just a simple word. And its meaning goes far deeper than a simple definition.

To learn more about this principle, NPR's Michel Martin spoke with legal affairs correspondent Nina Totenberg about originalism — its underpinnings and Scalia's extensive influence.

Interview Highlights

On whether he was the first to favor originalism

The point of view was not new to him. Robert Bork espoused that point of view to some extent, as have others. But he was its main proponent on the Supreme Court. And while that point of view might at one point have been considered something of a fringe viewpoint, he came on the court in the middle of the 1980s, just as the conservative Federalist Society was taking hold in academic institutions. So there was this two-tiered motor: him on the Supreme Court; the Federalist Society.

Other judges who'd been nominated and would be nominated by President Reagan and the two [Presidents Bush] on the lower courts ... espoused this view of constitutional interpretation that really had not been a part of our conversation in the 20th century.

On what informed this perspective

The idea that it would be an enduring document and that if there were going to be major changes in the way policies were implemented that they would have to be done through the democratic process. And that you don't want to give judges too much power to make those kinds of decisions.

The flip side of that is a static interpretation of the law that doesn't move with the times, doesn't move with the society. And that's the struggle that you see on the Supreme Court today, in some ways between some of the conservatives on the court and other members of the court.

On Scalia's support for originalism

He was its most fierce proponent, I guess I would say, but that didn't mean that he prevailed. Not everybody on the court agreed with him, including many of the conservatives, on some issues. And so while he was its principal proponent and theoretician, he didn't win a great deal of the time because he was not a consensus-builder. Other people were more willing to compromise than he was. He would have called that "faux conservatism."

So there was a struggle not just with the moderate liberal wing of the court but with some conservatives on the court from time to time as well.

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Nov 09, 2020

Chuck. Thanks for your insightful analysis. I was surprised that the term “originalist” did not come into common usage until the 1980s. The questions I now have are: Was “originalist” versus “living” an issue before that? If so, what historical cases (going back to our founding) were based on an originalist perspective versus a living constitution perspective? And of those “living constitution” cases, which ones might be candidates to be overturned by this Court? It would be interesting to have dinner with Madison, Hamilton and the rest to talk about the Constitution.


Nov 09, 2020

The Constitution was intended to be a contract between the people and government. It provides for change (amendment) but makes the amendment process time consuming and difficult to ensure the contract between government and the people isn't changed based on temporary passions of the moment or through the arbitrary orders of the president or judges who may or may not reflect the long term desire of the people. In fact the normal way the Constitution is amended is to require a supermajority of Congress, as well as the state legislatures, to approve the change. The other method of amending the Constitution, which has never been executed, is to call a convention of the states to discuss and make changes.


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