Talk:Originalism/Archive 1

message: I think the article does not present a worldwide view of this concept. Originalism should be a concept to interpret any law in any country. However, in this article, especially at the section 'Pros and cons', it seems it only focus on U.S. issues. Only U.S. example is used, and, beofore my amendment, only U.S. term like 'Congress' is used, and pharse like 'Ninth Amendment' is used assuming the readers will understand it means the 'Ninth Amendment of U.S. Constitution'. I hope everyone who is familiar with this topic can help to revise it and add more worldwide example. Moreover, some general terms should be used instead of the U.S. ones. Salt 05:47, 13 March 2007 (UTC)
thread_title:  Not a worldwide view 

message: I changed "win widespread acceptance" to "return to widespread acceptance"; Justice Scalia has noted that original intent was judicial orthodoxy until roughly the middle of the 20th Century. A theory that used to be orthodoxy cannot "win" widespread acceptance, only return to it. --Simon Dodd 15:30, Apr 6, 2005 (IOT)
I've added a discussion section in which I've tried to - as neutrally as possible - lay out the logical underpinning of original intent and its practical effect. This change does effectively mandate some changes in the "consequences" section, which I'll try to get back to later, but I think that the content I've added thusfar should probabably be looked at again for POV.
--Simon Dodd 10:40, Apr 7, 2005 (IOT)
I think that the reliance (without citation) on Scalia for your conclusion that original intent was "judicial orthodoxy" is problematic.  If there is such a cite (not just for Scalia's quote, but some sort of empirical evidence thereof) please provide it.  It will then read as historical summary rather than advocating a viewpoint.  Otherwise, it appears to be a stretch to call originalism "orthodoxy" and, thus, to state that it seeks a "return to widespread acceptance." --  Brian 16:53, 30 August 2005 (UTC)
thread_title:  Developing the article 

message: In the section on arguments opposed to originalism, the statement that The Founding Fathers were not originalists can be disputed; on what basis is this statement offered? The Framers were engaged in the business of writing a constitution, which is a fundamentally different business to interpreting it. The Framers also looked extensively to foreign law and precendent when designing the constitution - again, very revelant to writing a constitution, but (according to original intent) useless in interpreting a constitution. Originalism is concerned with what was meant and understood; ther are legitimate criticisms of the theory, and the "arguments against" section makes some of them, but I'm not sure that this one is accurate.
--Simon Dodd 10:50, Apr 7, 2005 (IOT)
:On what basis is this statement offered? No proof is given in this article. Also, I think pre-Constitution British law and precendent, for instance, can sometimes be useful in helping interpret a constitution as with that of the United States. --Authr 03:32, 2005 Apr 8 (UTC)
::Oh, I absolutely agree - in determining what the language of the constitution meant to the people who wrote and ratified it, looking at pre-1787 British common law is of paramount importance, being that the 13 colonies were -  whose colonies? - British colonies. Terms like "due process" and "cruel and unusual" had specific, definable meanings in law at the tmie, these were phrases that would have been understand to mean something. The Federalist Papers refer incessantly to foreign law, for that matter - and so foreign law at the time of ratification is also of relevance to its interpretation. The point isn't Americentrism, it's that the meaning of the text doesn't change, so anything that helps clarify the understood meaning of the text when it was ratified is of great value and importance, and anything written afterwards is not, in my view.--Simon Dodd 22:40, Apr 7, 2005 (IOT)
:::Further research has answered thus question. H. Jefferson Powell has demonstrated convincingly that the Framers were not in favor of original intent, but that they certainly supported original understanding. However, as this article has developed, taking in both forms, I think this problem has become moot. The criticism of original intent is now incorporated as part of the development of original understanding.Simon Dodd 22:30, 21 Jun 2005 (UTC)
thread_title:  What did the framers think? 

message: I believe this article is subtly POV in favor of Originalism.  To me it reads largely as an attempt to justify this doctrine, rather than merely discuss it.  Note, for example, how various rebuttals are given to the "con" arguments, but none to the "pro" arguments.  Note also that this article completely ignores/whitewashes the fact that Scalia and Thomas are (along with Rehnquist) the most conservative members of the court by far, and that Scalia is a strongly polarizing and controversial figure.  This article also omits any discussion of the fundamental fact that "Originalism" and its variants [strict constructionism, etc.] have in practice been used as a way of providing a legal underpinning to support the views of the religious right -- whether or not the writers of this article agree with the views of the religious right, the use of Originalism as a justification of these views is undeniable, and must be discussed.  There is also very little discussion of places where Scalia and Rehnquist have diverged from "Originalism" in order to support conservative viewpoints; the most recent example on the part of Scalia is his argument against medical marijuana and in favor of an expansive (i.e. plainly non-"Originalist") reading of the interstate commerce clause, despite voting in an opposite pattern when an Originalist argument worked in favor of conservative readings of the gun-free-school-zone and violence-against-women cases.Benwing 4 July 2005 23:32 (UTC)
:I will certainly hold up my hand and say (I being the author of a good chunk of the article to date) that I'm a full convert to Originalism, and thus, if the POV is only subtly in favor of the theory, then that's great! ;) I do think that both this article and its prospective "sister article" - The Living Constitution - suffer from having not previously had a more sceptical editor to counterbalance my enthusiasm for the former and antipathy towards the latter. I fully accept the absence of the rebuttals to the "pro" arguments, and I would greatly welcome someone offering a rebuttal of the "pro" arguments just as I've rebutted the "anti" arguments. However, I want to emphasize that, in my view, the route to improvement is to add rebuttals of the pros, rather than to delete the existing rebuttals of the cons. I entirely agree with your note about Scalia not applying originalism thoroughly in all instances (this is noted in the existing text), but I do point out that Rehnquist is not, and has not (to my knowledge) ever claimed to be, an originalist. Lastly, the issues of Scalia's controversy can be, should be, and are, covered in the article Antonin Scalia. None of which, incidentally, is to disagree with much of what you've said, and I think the addition of virtually all of your points to the main text would be beneficial, and I'd encourage you to do so. :) Simon Dodd 6 July 2005 18:58 (UTC)
:I don't have time to write a criticism section, but this article has some good criticism, I think.  You should note, however, that the terms used in the article are controversial (see Constitution in exile, which I originated and helped write).  Another critic is named Cass Sunstein.  That's about all I know on the subject--most of the other authors I've read have been relatively pro-originalist, and I don't consider myself an expert on either side.  Dave (talk) July 5, 2005 00:15 (UTC)
::I will look into this.Simon Dodd 6 July 2005 18:58 (UTC)
More things needed to add neutrality and context (This would help understand more how Originalism really works, and clarify some of the real-world effects that this philosophy would have):
Discuss what Originalism would have to say about some well-known current and past issues in the Supreme Court:
*abortion, Roe v. Wade
*"separate but equal", Plessy v. Ferguson, Brown v. Board of Education
*constitutional right to a lawyer, Gideon v. Wainwright
*Bush v. Gore
*gay marriage, e.g. hypothetical case where a gay couple asserts that their constitutional rights to equal protection are violated
Benwing 08:44, 10 July 2005 (UTC)
replies: text: I don't think it's  even subtly biased in favor of Originalism; what bothers me more, however, is that it's very much a Scalia quotefest. More material from other sources is badly needed, as well as quotations from critics. --moof 12:45, 12 December 2005 (UTC)
thread_title:  POV 

message: I reverted Authr's edits.  Originalism is defined in this very article as "the view that interpretation of a written constitution is (or should be) consistent with what it was originally intended to mean by those who drafted and ratified it."  It is therefore not simply limited to drafters.  The question of what body constitutes the "ratifying" body (and how that intent is discovered) is a legitimate argument opposing originalism. Unended July 6, 2005 13:12 (UTC)
:I was aware of that part of the article's definition of original intent (distinct from original meaning, another type of originalism as the article explains), and had also planned to edit it as per the reasoning given for my last edit. I suppose I will wait to see if anyone else wishes to comment. Let me quote the reasoning I gave: "[T]he only group of people who could change the Constitution according to their intent were those who drafted it; the ratifiers merely chose to accept or reject it." In other words, the ratifiers did not intend that the Constitution should mean anything, they merely understood it to mean something; I believe this falls under original meaning, not original intent. The intent of the ratifiers was simply to ratify or reject the Constitution. Also, there is no question as to what body constituted the ratifying body. Authr July 6, 2005 14:43 (UTC)
::I'm not sure how you can suggest that ratifiers don't have an intent when they vote on the passage of a constitutional or statutory provision.  Why wouldn't ratifiers "intend" for the Constitution on which they are voting to mean anything?  How is the act of voting any different from the act of drafting?  What is the difference between voting for a provision with the intent that it is understood to mean something and drafting a provision with the intent that it will be understood to mean something?
::In any event, it doesn't matter.  Limiting originalism to what drafters intended only opens up originalism for an even more damning criticism (which I have yet to include but will soon), that being why it matters at all what "drafters" intend, since the act of drafting is not even a legislative act and has no legislative significance.  (One can draft until the cows come home.  It's the act of voting and ratification that has significance for legislation.)  I frankly don't care how originalism is defined.  It isn't my philosophy, so I'm not going to suggest or argue about how its adherents define it.  But, as currently defined, I think the criticism as it now stands is legitimate. Unended July 6, 2005 23:52 (UTC)
:::It seems you did not read my entire comment. I plainly stated that "the intent of the ratifiers was simply to ratify or reject the Constitution" (and they did not vote on provisions of the Constitution, they voted on the Constitution as a whole). The "intent" of the ratifiers to ratifiy the Constitution had no effect on the Constitution's meaning, and is therefore of no use to an interpretation based on original intent.
:::I would like to delete "and ratifiers" from the definition of original intent, and change "drafters" to "framers." Does anyone agree or disagree with this? Authr July 7, 2005 02:36 (UTC)
::::I simply fail to understand what distinction you are attempting to draw.  In the first place, ratifiers did not simply vote on the whole constitution.  The Amendments--the interpretation of which constitute a large part of the debate--were passed and ratified individually.  (I also don't see how it matters otherwise, since I am at a loss as to why a ratifier cannot vote on the entire constitution on the basis of his intent that individual provisions be construed a certain way.)  Second, I don't understand how the intent of the ratifiers has no effect on the Constitution's meaning, but the drafters' intent does.  That is question begging.  True, when a drafter drafts (or a speaker speaks), he intends his words to mean something.  And when a reader reads (or a listener listens), he understands the words of the drafter (or speaker) to mean something.  But ratification is emphatically not a passive exercise in reading and listening.  It is an affirmative act, which carries with it an expression of intent.  You seem to be under the impression that ratifiers cannot vote with the intent that a provision mean X.  In other words, as a ratifier, I can vote in favor of a Constitutional Amendment with the intent that it mean (i.e., be construed and enforced consistent with) X.  Is this not the same intent that drafters have? Unended July 7, 2005 03:30 (UTC)
:Unended's comment isn't accurate. Originalism is defined "in this very article" as comprising several various views, original intent - i.e., "the view that interpretation of a written constitution is (or should be) consistent with what it was originally intended to mean by those who drafted and ratified it." - being only one of its forms, and the less common form, in point of fact. I think perhaps the text should be modified to show that it applies to one form only, rather than either being deleted altogether (per Authr) or left in situ (per Unended).63.134.128.4 6 July 2005 18:37 (UTC)
::That originalism is defined in the article as "comprising several various views" is irrelevant to the comment I made, which was not inaccurate.  The criticism as it stands should be understood to attack only the view to which it obviously applies, and there should be no need of further clarification.  That said, I would probably not revert a clarification that the argument speaks to "original intent," although I may modify the clarification to ensure consistency with the oppositional argument. Unended July 6, 2005 23:52 (UTC)
IMHO, the following elements of the article do not present a NPOV and present the concept of Originalism in a negative light, suggesting it is a straw-man theory created for conservative purposes:
:A neologism, "originalism" is similar to legalist traditionalism, and is popular among U.S. political conservatives; some opponents have charged that it is merely a form of Judicial Activism.
:RUB 11:23, 27 July 2005 (NYT)''
*I found that it is difficult to add or edit arguments and notes without renumbering the notes each time.  To fix this, I've numbered the arguments so that each note can be identified according to its corresponding argument. fi99ig 17:08, 19 September 2005 (UTC)
thread_title:  Arguments against originalism 

message: This article argues that originalism is a form of judicial activism.  This article defends originalism against the charge.
Since both probably require subscriptions, I thought it would be useful to also link to excerpts here.  Hope this helps with the neutrality issue. Dave (talk) July 7, 2005 12:20 (UTC)
:The New York Times article is ridiculous, and has been roundly repudiated as remarkably silly. I have personally driven pencils through its heart in no fewer than five blogs; see, e.g., , . See also Wikipedia Supreme Court entry, talk page. Orin S. Kerr's piece, however, is a wholly different matter; I will read, digest and borrow from.  63.134.128.4 7 July 2005 18:10 (UTC)
::The two blog pieces basically make the same argument: "Gewirtz and Golder have shown only what everyone should already have known: that depending on how you define activism, different judges turn out to be activists or apostles of judicial restraint."  That in and of itself is worth including in the article, as it indicates that the activism charge originalists make (one of their most important/favorite arguments) isn't worth much. Dave (talk) July 8, 2005 03:39 (UTC)
:::I strenuously disagree with the idea that originalism does - or even could - constitute Judicial activism. However, in the interests of compromise, I propose that we include a terse statement in this article to the effect that some critics of originalism have charged that it is judicial activism, direct readers to the article Judicial Activism, and then work on the judicial activism article to discuss the "originalism: judicial activism or not" question. Does this sound reasonable? Simon Dodd 8 July 2005 18:26 (UTC)
::The article is about judicial restraint (i.e., self-regulation of federal courts' power of judicial review), the absence of which is often associated by conservatives with so-called "judicial activism."  Scalia, in fact, often rants and raves about the Court's use of judicial review to strike down legislation as unconstitutional (see, e.g., Roper v. Simmons where Scalia complained loudly about the Court's strking down of "the people's law" empowering the State to execute juvenile offender citizens).  So that Scalia has actually voted to strike down more "people's laws" than the so-called "activist" wing of the court is rather significant.  Besides, everybody knows that "activist" is just a word reactionaries use to describe decisions they don't like and that it has no real principled application.  (Indeed, it was used to describe the Kelo v. City of New London decision in which the Supreme Court actually did nothing at all.)  That said, there is actually an entry on "judicial activism," and the facts contained with the NY Times article would probably best work there rather than here. Unended July 8, 2005 04:23 (UTC)
:::I certainly agree that Scalia is deferential to the legislative branches (this is exactly what made Matin Garbus' Courting Disaster such a laughably preposterous book). However, as previously noted, I think it's absolutely incorrect to conflate "activity" with "activism", and I therefore strongly disagree that the mere act of striking down legislation is necessarily activist or not. See previously-linked commentaries. I don't doubt that some people apply "activist judge" as an unspecific epithet (Pat Buchanan and Tom DeLay, for example, called the judges in the Schaivo controversey "activist", which is clearly preposterous; the "crime" of those Judges was that they did exactly what the law demanded - it would only have been "judicial activism" if they had bent the laws in the manner in which my more conservative friends desired), but I disagree that the term itself is meaningless. Just as the fact that Scalia doesn't always follow originalism to the letter in no way reflects on the theory itself (or, just as the behaviour of neither the rev. al sharpton nor the rev. pat robertson reflects on Christianity as a religion; just as the behaviour of Al Queda does not reflect on Islam as a religion), the common usage of the term doesn't devalue it or change its actual meaning. More broadly, you could say that you are who you are, not who people say you are.  I also think it's ludicrous to assert that Kelo did nothing at all, but that's another debate entirely.Simon Dodd 8 July 2005 18:39 (UTC)
Your solution for merely mentioning the charge here and actually discussing it at judicial activism seems reasonable.  Other criticisms can be found in the articles I linked to above (Constitution in exile stuff, etc.).  Perhaps find arguments that originalism would block civil rights laws and other legislation non-originalists like (Endangered Species Act, Americans with Disabilities Act, the Drug War, etc.).  Dave (talk) July 8, 2005 21:35 (UTC)
:Okay, link to JA added in the main blurb (I also fixed some rather torturous language, and corrected a link to the article Conservatism). I've also put a stub into the JA article.Simon Dodd 02:04, 11 July 2005 (UTC)
thread_title:  More criticism 

message: At 16:58, 16 July 2005, Toryoidal edits in: "Originalism should not be confused with "True Originalism," which claims interpretation of U.S. Constitution should be based on principles of British Law". The page linked to doesn't yet exist, and a quick search has revealed no particular usage of the term "true originalism" (indeed, this page is the number 1 hit, which doesn't fill me with much confidence that this is a valid term). For the time being, I've removed this clause; Toryoidal, could you create the page for "true originalism", or discuss / link to info on this view on the talk page. If the statement is valid, it has a place in the article, but as yet I don't see any indication that it is. Simon Dodd 18:55, 18 July 2005 (UTC)
thread_title:  "True" originalism 

message: Simon, could you please say more in defense of your deletion of the Stevens quotation.  It certainly seems relevant to the topic, in that it discusses a common criticism of Originalism, namely that it can not (or will not) be consistently applied.  Since Originalists trumpet the non-arbitrariness of their method, this seems like a reasonable criticism if true.
In justifying your deletion you write: "Justice Stevens is hardly an originalist. His comments are inaccurate, and disingenuous at best."  I would say two things in response.  First, the fact that Stevens is not an originalist strikes me as being entirely irrelevant.  Surely non-originalists are allowed to contribute to the debate on originalism!  Second, on the issue of its being inaccurate and disingenuous, I think you owe us a defense of this claim _before_ deleting the passage.  If your problem is with this type of criticism in general, why not simply address it in the notes to argument O6 rather than removing the quote? fi99ig 16:15, 10 November 2005 (UTC)
replies: text: My objection was multifaceted. First, it was an exceedingly long quote surrounded by several very short quotes. Second, it was a quote which was not discussing originalism (nor, taken in context, was it part of an originalist analysis), but rather, criticizing its inconsistent application by one of its practitioners (a matter already addressed elsewhere in the text as inadequate basis for criticizing the theory); placed amidst a series of quotes directly relevant to the article, it seemed out of place. Third, even were the quote to be important enough to include, it would seem better placed, for example, in what is now Pros and cons n.11. However, I'm not going to disagree with you that it is perfectly reasonable to include criticism of the theory and its practise, as long as it's made clear which is which. I have therefore restored the quote in part (edited for brevity), and related it to Pros and cons n.11. Simon Dodd 20:57, 10 November 2005 (UTC)
replies: text: Thanks for restoring the quotation, Simon.  I don't know if this is the place to get into a debate, but I have to disagree with you about the relevance of the quotation (and the response at fn.11).  It seems to me that one of the central arguments against originalism is that its practitioners must inevitably depend on their own values, both because the original meaning often cannot be precisely determined and because certain value terms are inherently ambiguous.  (I'm relying on some of the arguments Balkin has developed on this topic.)  If one takes this argument seriously, then the Stevens quotation is indicative not of a failure to apply the methodology, but rather a failure built into the methodology.  I'm sure you won't agree with this, but do you at least see why the quotation might seem more relevant than you suggest?  Best, fi99ig 22:29, 10 November 2005 (UTC)
replies: text: I hadn't actually read this before making changes to the section "differentiated from strict construction" earlier, in which I noted (or, at least, strongly implied) one of the points you note here, that Originalism does not do all the work for a Judge; their need to depend on their own intellect and "their own values, both because the original meaning often cannot be precisely determined" and because "Originalism is a theory of interpretation, not construction." (Something else that is missing from this article, and I suspect will have to remain missing from this article, but which directly relates to this point is how and whether originalists take stare decisis into account). In any instance, you're right that I don't agree with you that this represents an inherent problem within Originalism (still less a fatal one), but that isn't to say that this view shouldn't be represented in this article. Perhaps what is needed, instead of us trying to beat the Stevens quotes into a shape that will fit into the quotations section, or the pros and cons section, is to simply go the whole hog and have a "criticisms" section, in which the Stevens quote could be contextualized, and where it would certainly seem at home.--Simon Dodd 01:23, 11 November 2005 (UTC)
thread_title:  Deletion of Stevens quotation 

message: I strongly object to Simon's changes in the Consequences section, changes which quite obviously violate NPOV.  The use of "inculcated," e.g., presumes that the Living Constitution viewpoint came to prominence through non-rational means.  It thus seems to presuppose that Originalism is correct.  The same goes for the claim that laws schools teach the Living Constitution viewpoint to further liberal goals.  Where is the evidence supporting this liberal agenda?  Isn't it possible that they promote a Living Constitution because they believe it to be the correct view?  Simon, unless you can supply convincing evidence for this supposed liberal agenda, I will remove your insertions as violations of NPOV. fi99ig 00:55, 11 November 2005 (UTC)
replies: text: Changes removed. I was about to go off in search of various citations to demonstrate the overwhelmingly liberal orientation of the legal academy, but on reflection, it strikes me that the entire disputed paragraph is actually irrelevant to the section in which it was located. A discussion, however brief, of the current ideological proclivities of the legal academy, seems to me to be only very tenuously connected to a section on the practical consequences of the adoption of Originalism as a prerequisite for appointment to the Federal Judiciary. Consequentially, I have simply excised the entire paragraph in dispute as non-germane, and dumped the Scalia quote (which I rather like) into the "quotes" section. --Simon Dodd 01:05, 11 November 2005 (UTC)
replies: text: Thank you again for making the changes.  But just to be clear, finding evidence of the "overwhelmingly liberal orientation of the legal academy" would not have sufficed.  I don't deny that most law profs (and most profs in general) are liberal.  But your claim was that there was an agenda to promote a model of interpretation not on its merits but in order to support a political cause.  That's a much stronger claim, and would have required much more substantial evidence to pass NPOV muster. fi99ig 01:14, 11 November 2005 (UTC)
replies: text: Everyone thinks their cause is just. ;) Actually, I find the crit viewpoint fascinating, albeit not convincing. In expanding Legal formalism, I quoted Sammy Adelman & Ken Foster's description from 1 Critical Lawyer's Handbook 7 of the characteristics of Formalism (and, by extension, originalism) as offering a great argument for Formalism (something I suspect they would be horrified by). The point I'm trying to drive at here (if there is one) is that I think that the living Constitution approach is necessarily about results more than it is process, because I'm not sure what else except their views on what is expedient or moral can tell a Judge what a provision means once he rejects text and tradition. However, that, to some extent, is another article. ;)--Simon Dodd 01:31, 11 November 2005 (UTC)
thread_title:  Consequences 

message: Where is the "original understanding" cited as a separate brand on originalism? I have always heard it used interchangeably with "original meaning." That is certainly how Robert Bork appears to use it in his book, "The Tempting of America." -- 69.19.2.36 00:40, 22 November 2005 (UTC)
replies: text: Good question. Now that you ask, I don't know that I remember where, but I have certainly seen it cited as a separate theory, in the context of differentiating between whether the understanding of the framers or the ratifiers is authoritative - a question, of course, which is irrelevant to original meaning. I need to look into that. Simon Dodd 02:20, 23 November 2005 (UTC)
thread_title:  Original Understanding 

message: "Civil rights act wasn't passed pursuant to the commerce clause, but rather, the fourteenth amendment."
The private discrimination portions of the Civil Rights Act of 1964 were sustained on Commerce Clause grounds. See Katzenbach v. McClung and Heart of Atlanta Motel. A Fourteenth Amendment argument was advanced by only one justice, and is hard to even take seriously, given that the amendment clearly limits only state action, and protection of the laws. -- WikiAce 10:47, 26 November 2005 (UTC)
thread_title:  Civil Rights Act 

message: Is his quote really appropriate for this page? It's not just that he was a non-originalist... it's that he was a blatant judicial activist, who was actually invoking natural law to strike down a business regulation in the very opinion the quote comes from. -- WikiAce 11:25, 26 November 2005 (UTC)
thread_title:  Justice Sutherland 

message: hi!
as i'm not a native speaker, i'd welcome any changes in grammar, spelling or style regarding my added paragraph on the first page. also, please feel free to contact me by mail (owitt@gmx.net) or on this page regarding the content.
thank you!
"Some opponents charge that originalism is a form of judicial activism for one or more of the follwing reasons:
- because it is often hostile to precedent, 
- because people nowadays lack the possiblity of asking each and every single person within the group that once has supported a specific bill what their intentions had been - with regard to a certain issue at stake as well as in general. Because of the inability to do so, there is the danger that originalist judges disenfranchise visionary or centrist Parliament members from back then who, if the wording had well and truly reflected people's understanding of the bill or the opinion of some person authoring a press release at that time, would have refrained from voting for that law because they actually had preferred (and maybe quietly urged for) a more general wording of the bill that left certain issues open for interpretation and progress. Thus, originalism is accused of interpreting laws in a way that even a long time ago could well have represented the opinion of the Parliament's minority."
:I've removed these edits, for several reasons:
:# As discussed above (see my exchange with Dave and Unended, under More criticism, above at July 7, 2005 12:20 onwards), for the sake of brevity and clarity, the question of originalism as a form of judicial activism is raised briefly in this article, with a link to judicial activism where more expansive comment on the matter is better facilitated. 
:# Second, even if we were going to move this discussion back into the Originalism article, if you're going to discuss it at this sort of length, it should be discussed under its own header, not in a frontmatter which is already (albeit necessarily) too long, in my view.
:# Lastly, the substantive content you offer - and I realize and give deference to your note that English isn't your primary language - doesn't really make sense on its own terms, being an extremely convoluted way to make a point that really doesn't have a great deal of merit, in my view.
:Any one of these problems alone would merit at least discussion (the third, obviously, being very much an open subject for debate), but all three taken together demands not only dicussion, but swift excise in the meantime. I think that this material should be discussed at talk:judicial activism and included within the context of that article as an expansion of the comments available there. Simon Dodd 01:08, 12 January 2006 (UTC)
thread_title:  grammar & fundamental criticism 

message: With regard to this quote by Justice Scalia:
"You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist."
He refers to "original intent" a great deal in this article, apparently as a synonym for 'originalism':
http://www.joink.com/homes/users/ninoville/lesserevil.asp
Granted, that was written some time ago. One thing this article doesn't talk about is where the modern 'original meaning' movement started. Anyone know who first started making the case?
-- WikiAce 21:31, 5 February 2006 (UTC)
replies: text: I think that essay was written at a time when the terms often overlapped; indeed, IIRC, this is the article credited with starting the move from intent to meaning, so it may be affected, or it may simply be the context of the time. Simon Dodd 01:31, 24 February 2006 (UTC)
thread_title:  Original intent vs. original meaning 

message: "Perhaps the clearest way to illustrate the importance of the difference between original intent and original understanding is to use the example of the Twenty-seventh Amendment. The Twenty-seventh Amendment was proposed as part of the Bill of Rights in 1791, but failed to be ratified by the required number of states for two centuries, eventually being ratified in 1992. An original intent inquiry would ask what the framers understood the amendment to mean when it was written; an original meaning inquiry would ask what the plain meaning of the text was in 1992 when it was eventually ratified."
I'm not sure all original meaning advocates would agree with this. Many of the ratifications took place two centuries ago. And whereas the modern observer was capable of ascertaining the 1791 meaning before making a decision as to whether or not to ratify the amendment, the 1791 observer had no way of knowing the modern meaning.
How is one to draft a document if it is to be interpreted according to the lingo of a generation 200 years into the future?
-- WikiAce 14:58, 8 March 2006 (UTC)
replies: text: * I suppose the flip response would be that this is a problem for the interpreter not the drafter, but a more serious suggestion would be to use plain language wherever possible, as that is certainly how it will be interpreted in one's own day and age. Simon Dodd 20:27, 11 April 2006 (UTC)
thread_title:  Twenty-seventh Amendment 

message: is hereby ordered to leave the Judicial Activism section intact. Judge Dredd (unsigned comment 17:43, 15 March 2006 by user:141.26.68.145)
:*I'll be sure to treat that "order" with every ounce of seriousness that usually inheres in an unsigned anonymous request. My concern is to keep the article as accurate and effective as possible, not to pander to vanity edits. The question of originalism as a form of judicial activism is certainly a valid one, but it is tangential to a discussion of what the theory actually is; if it can be dealt with more effectively in the judicial activism article, and that article be linked to from here (a fortiori in an already lengthy article), that is the best place for it. Court is adjourned. Simon Dodd 20:24, 11 April 2006 (UTC)
thread_title:  Simon Dodd 

message: While I'm a fan of having images in Wikipedia articles, I don't think the image of the signing of Constitution belongs here.  This is an article about an interpretation of the Constitution, not its signing.  How does the painting portray the meaning of the Constitution?  Couldn't the image just as easily go on the page for Original intent, Strict constructionism or even Living Constitution with an appropriate "supporters argue..." caption?  I think images of prominent Originalists, like Scalia, would be more appropriate. MorrisGregorian 08:18, 2 July 2006 (UTC)
thread_title:  Christy painting 

message: "Originalism leads to unacceptable results. For example, interpreting the 14th Amendment of the U.S. Constitution only to protect liberty recognized at the time it was ratified provides no protection to groups who were discriminated against at that time, particularly women and homosexuals. With originalism, the courts are extremely limited in their power to protect against discrimination."  This is only true if people refuse to ammend the Constitution.  —Preceding unsigned comment added by 143.111.22.21 (talk) 22:22, 2 October 2007 (UTC)
replies: text: I think advocating discrimination is one of the goals of "originalism". 209.91.15.10 (talk) 17:36, 29 May 2009 (UTC)
thread_title:  Con argument 

message: The text invokes "the example of the Twenty-seventh Amendment".  The 200 year ratification of the Twenty-seventh Amendment is sui generis, and not an example of anything.   Randall Bart    Talk   18:18, 1 October 2007 (UTC)
thread_title:  Twenty-seventh Amendment 

message: It seems to me that Bad originalism is either now a POV fork of this article or has great potential to become one. I'm not sure it would be best to completely integrate the text of the two, but it seems to me that at minimum, the bad originalism concept needs to be mentioned here and that should be treated as a subarticle somehow. Erechtheus (talk) 02:53, 19 May 2008 (UTC)
replies: text: I agree that Bad originalism should be merged into this article.  It's a POV fork.Ferrylodge (talk) 20:59, 14 April 2009 (UTC)
thread_title:  Merge with [[Bad originalism]] 

message: It's no coincidence that nearly all self-described "originalists" explicitly advocate positions that the writers of the Constitution strongly opposed. You'd be hard-pressed to find an "originalist" who doesn't support an extremely strong executive, even though the Founding Fathers intended for Congress to the more powerful branch. The absolute last thing they wanted was a President strong enough to act  as a king. 77.74.198.125 (talk) 00:50, 1 August 2008 (UTC)
replies: text: So if you are capable of writing, NPOV, fix it. Otherwise buzz off. 209.91.15.10 (talk) 17:34, 29 May 2009 (UTC)
thread_title:  Originalism is a fraud 

message: So do "originalists" seek to repeal amendments not drafted by the framers of the Constitution? I've never really heard a clear answer to this... If so, how would these people justify repealing very important amendments such as the 13th and 19th? 209.91.15.10 (talk) 17:43, 29 May 2009 (UTC)
replies: text: short ansewer? No they dont. Smitty1337 (talk) 20:06, 24 April 2010 (UTC)
thread_title:  Amendments Question 

message: * It is further argued that the specific intent in drafting the United Stated Constitution was to create a broad and flexible document which would be interpreted in this manner.  As Edmund Randolph set out at the Constitutional Convention, the goal was specifically "[t]o insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events."  The basis for now scrupulously trying to recreate 18th century meaning, thus, is often called into question, when it appears that the Constitution was written specifically to avoid binding future generations in this way.
* This view is also supported by the fact that a constitution itself is silent on the appropriate method of constitutional interpretation. For example, had the framers intended for the U.S. Constitution to be interpreted in a specific manner they could have indicated as much in the text of the Constitution itself.  The framers themselves, most of whom were lawyers and legal scholars, would presumably have known the confusion their lack of doing so would cause.  The absence of any such guidance suggests either implicit support for contemporary interpretation, or that they could not agree on the correct method, neither of which should bind future generations.
Aside from being uncited and wp: or, this is a personal interpretation. One could easily spin that in favor of originalism by saying that the constitution was the essential principals only, and that seeking "new rights" in amendments that are not explicitly listed in the amendment amounts to trying to trying to making them permanent an unalterable (for instance abortion rights), as opposed to allowing the times and events to accomodate them, I.E. legislation based on popular support for abortion rights. At any rate, its wp: or until somebody cites it this has no place in the article. Smitty1337 (talk) 20:04, 24 April 2010 (UTC)
replies: text: This section has been left unimproved for over two years (Apr 08). --THE FOUNDERS INTENT PRAISE GOOD WORKS 13:51, 18 August 2010 (UTC)
thread_title:  Removed material from opposing views 

message: "Originalism is a theory of interpretation, not construction"
Construction is the noun form of the verb "to construe"; to infer a meaning from.  Interpretation is.. mirabile visu: the exact same thing.  So, cited or not, this sentence -- on which the entire section, if not the entire article, seems to hang -- is inherently self-contradictory.  --baylink@en.w  —Preceding unsigned comment added by 65.34.90.32 (talk) 23:33, 13 June 2010 (UTC)
thread_title:  Conflict 

message: I find the premise in this section somewhat ridiculous. Since when do conservatives not believe in what this section says? Who says conservatives are against change? It's all about how the change is made. The section should be rewritten or deleted. --THE FOUNDERS INTENT PRAISE  17:17, 6 July 2011 (UTC)
thread_title:  Originalism is not conservatism 

message: * Originalists often argue that where a constitution is silent, judges should not "read rights into" it. Rights implicating abortion, sex and sexual orientation equality, and capital punishment are often thus described as issues that the Constitution does not speak to, and hence should not be recognized by the judiciary. Yet, the Ninth Amendment, provides that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Original intent thus calls for just the opposite of what the text of the Constitution and "original intent" of the founders arguably affirm, creating an inconsistency in the practice of at least one branch of Originalism. The subsequent Tenth Amendment, detailing non-enumerated rights as the sole property of the states and the people, is often cited as the clarification for this inconsistency and the reason why the federal courts have no say in affirming or denying said rights per the Ninth Amendment. 
This makes no sense at all, originalists saying that "judges should not read rights into" the amenments and that "the Constitution does not speak to, and hence should not be recognized by the judiciary" has no bearing on the ninth amendment. This appears to be a misunderstanding of Originalism, it is entirely accurate to state that abortion is not spoken of in the constitution and that the judiciary should not recognize it. Citing the ninth amendment in this manner shows bad interpretation of that amendment and why it was passed in the first place. It is not meant to extend new rights, infact it says as much in its text "others retained by the people" not other rights claimed by the people, ie. new rights. The ninth was passed so that the federal government would not be able to claim authrity over anything that was not explicitly named as forbiden to it by one of the amendments, it ensured that the bill of rights was not read as "the federal government my do anything except these few things." and was instead understood to be just a specific list of essential rights, but that other less essential rights existed or could be created by legilation. thats how an originalist reads it because thats why James madison wrote it. Smitty1337 (talk) 20:29, 24 April 2010 (UTC)
replies: text: That's because the Federalists consider the BoR an appeasement to the Anti-Federalists arguments in the state conventions, and that it goes without saying that rights exist and that Congress only had the powers specifically enumerated. --THE FOUNDERS INTENT PRAISE  17:39, 6 July 2011 (UTC)
thread_title:  This makes no sense... 

message: We should pay attention to some sources that have not be used. Especially from groups like the American Constitutional Society for example.   While they disagree with Orginalism, their insight would be useful for section on this page for criticism this particular view point has received.
In particular a book written by two of it members call Keeping Faith with the Constitution
http://www.acslaw.org/pdf/ACS_KeepFaith_FNL.pdf
Pages 9 & 10 briefly talk about some of their criticism of the Orginalist views on the constitution  — Preceding unsigned comment added by Laughingman543 (talk • contribs) 19:52, 27 August 2011 (UTC)
thread_title:  expanding sources used in this article 

message: This Statement: "...Original intent thus calls for just the opposite of what the text of the Constitution and original intent of the founders arguably affirm, creating an inconsistency in the practice of at least one branch of Originalism."
The writer attempts to take a part of the Constitution that leaves undelegated things to the states, and twist it to somehow find a inconsistency or allow people to empower the federal government.
There is no inconsistency, (except those so ignorant) because these things are left to LOCAL STATES to decide in their own;  NOT as something to grant the federal government more power, outside those things that were EXPRESSLY DELEGATED; 
Changes (using the ratifying and amendment process) in the Constitution are "LIMITED to the DELEGATED powers" and they cannot take "ONE STEP BEYOND" as the founders in the Virginia Ratifying Convention 6-16-1788 present Clearly; 
Neither federal government themselves, NOR CAN THE STATES, ARROGATE ANY NEW POWER UPON THE FEDERAL GOVERNMENT.
The Original Compact creates the Authorities of the Republic and the authorities cannot change. 
The People, states and local communities DO HAVE full powers (not exceeding the Law of Nature) how their local communities / societies can be run on all things not delegated to the federal government.
Read the Virgina Ratifying Convention 6-16-1788 and the Virginia and Kentucky Resolutions 1798
Find these documents in full under "founders documents" at www.americanpatriotparty.cc 02:06, 4 February 2013 (UTC)
thread_title:  Writers Show Ignorance of the Constitution 

message: The caption to the picture of Scalia says, "Supreme Court Justice Antonin Scalia is a firm believer in originalism." Except, of course, when he isn't. In the case of Gonzales v. Raich, 545 U.S. 1 (2005), Angel Raich was growing marijuana for her own medicinal use, which was legal under California law. The Supreme Court, in a 6-3 decision, held this to be illegal under Federal law. A concurring opinion was written by Scalia, based on the Interstate Commerce clause of the Constitution and the Necessary and Proper Clause, saying
Clarence Thomas, said that the majority was wrong, saying that Raich grew and used
Thomas wrote: "The Necessary and Proper Clause is not a warrant to Congress to enact any law that bears some conceivable connection to the exercise of an enumerated power". He went on to say "Congress presented no evidence in support of its conclusions, which are not so much findings of fact as assertions of power," and concluded: "Congress cannot define the scope of its own power merely by declaring the necessity of its enactments".
The gist of Thomas' dissent comes straight out of originalism:
{quote|Respondent's local cultivation and consumption of marijuana is not "Commerce ... among the several States". Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.}}
Clearly, Scalia supports originalism only when he feels like it. JHobson3 (talk) 16:17, 23 July 2014 (UTC)
thread_title:  Antonin Scalia and Originalism 

message: The first part is okay, but not perfect. But in then generates unto passionate speeches written for two opposing sides. The language is far to emotional and rhetorical to sound encyclopedic, and wiki articles are supposed to be NPOV...that's "NEUTRAL point of view", not "Two very distinct and passionate points of view dukeing it out to see which can be more persuasive". Its not supposed to be a contest. Its not supposed to sound personally involved. It's supposed to present the facts, and where there is controversy, what some people view as the facts. It should not sound like the article is written as an editorial, even if both arguments are provided. Less clever speech making, more unemotional statment of facts..45Colt 04:03, 26 November 2015 (UTC)
thread_title:  Totally unencyclopedic 

message: The article defines originalism by reference to 'the notion that an utterance's semantic content is fixed at the time it is uttered'.  I am struggling to see what conceivable alternatives there might be.  Of course, words do change their meanings, but surely no-one supposes that this changes the meaning of past *utterances* containing those words.  For example, the word 'nubile' originally meant just 'suitable for marriage', but in common usage it has come to mean almost the opposite!  If we came across a historical document containing the word, from a time when it unambiguously meant 'suitable for marriage', it would be absurd to suggest that the document had changed its meaning, especially if some legal issue (e.g. the provisions of a will or trust) depended on it.  If there are in fact serious alternatives to originalism, there should at least be some indication of what they are or how to find them.  (I have looked at the linked article on 'judicial interpretation', but nothing there seems to be strictly an alternative to originalism, just supplementary principles of interpretation, such as attention to context.)109.148.117.50 (talk) 15:28, 14 February 2016 (UTC)
thread_title:  What are the alternatives? 

message: This argument: 
"Originalism, as applied by its most prominent proponents, is sometimes pretext (or, at least, the "rules" of originalism are sometimes "bent") to reach desired ends, no less so than The Living Constitution. For example, Prof. Jack Balkin has averred that neither the original understanding nor the original intent of the 14th Amendment is compatible with the result implicitly reached by the Originalist Justices Thomas and Scalia in their willingness to join Chief Justice Rehnquist's concurrence in Bush v. Gore, 531 U.S. 98 (2000). Furthermore, while both Scalia and Thomas have objected on originalist grounds to the use of foreign law by the court (see, respectively, Thompson v. Oklahoma, 487 U.S. 815, 868 (1988), and Knight v. Florida, 528 U.S. 990 (1999)), both have allowed it to seep into their opinions at one time or another (see, respectively, McIntyre v. Ohio Elections Committee, 514 U.S. 334, 381 (1995) and Holder v. Hall, 512 U.S. 874, 904 (1994))",      is an ad hominem argument against certain originalist justices and has no bearing on the validity of the practice of originalism. Costatitanica (talk) 20:02, 25 February 2016 (UTC)
thread_title:  Originalism or originalists? 

message: Hello fellow Wikipedians,
I have just modified  on Originalism. Please take a moment to review my edit. If you have any questions, or need the bot to ignore the links, or the page altogether, please visit this simple FaQ for additional information. I made the following changes:
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thread_title:  External links modified 

message: "Some have suggested that Scalia's personal concept of "originalism" was actually a disguised theocratic agenda, in that he sees rights as coming from a deity rather than from the text of the Constitution."  This is problematic crticisms because the notion that rights come from a Diety or Providence or Nature or some outside overarching source is inherent to the Constitution. This is not "theocratic", but standard. The stated alternative, that the Constitution itself somehow creates the rights it protects is not tenable under any judicial construction. The position is always that the document protects extant rights and liberties, not that it is the source of them.  — Preceding unsigned comment added by Venqax (talk • contribs) 14:41, 9 October 2016 (UTC)
thread_title:  Arguments against some of the proponents of Originalism 

message: "I am certainly not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the  times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors." Source --Fb8cont (talk) 14:01, 20 November 2016 (UTC)
thread_title:  [[Thomas Jefferson]]'s stance towards  [[original meaning]] 

message: To add to article: a comparison with the philosophy of fundamentalist religionists: a belief that a literal reading of texts (such as the Bible) is the correct one.
From the lead paragraph of the Fundamentalism Wikipedia article:
::Fundamentalism usually has a religious connotation that indicates unwavering attachment to a set of irreducible beliefs. However, fundamentalism has come to be applied to a tendency among certain groups – mainly, although not exclusively, in religion – that is characterized by a markedly strict literalism as it is applied to certain specific scriptures, dogmas, or ideologies, and a strong sense of the importance of maintaining ingroup and outgroup distinctions, leading to an emphasis on purity and the desire to return to a previous ideal from which advocates believe members have strayed. Rejection of diversity of opinion as applied to these established "fundamentals" and their accepted interpretation within the group often results from this tendency.
173.88.246.138 (talk) 06:59, 23 October 2020 (UTC)
thread_title: Comparison to fundamentalism

message: https://www.vox.com/21497317/originalism-amy-coney-barrett-constitution-supreme-court
Not saying I necessarily agree, but I can't find - in the discussion on the evolution of originalism - this discussed. CapnZapp (talk) 11:22, 28 October 2020 (UTC)
thread_title:  "waves" of originalism 

message: I tried finding the best template to convey the sense this article only deals with the subject in a minimal way. There's a huge debate that appears to fly right past this article, as if its editors only add things both conservatives and liberals agree to. See previous talk sections for issues that just a few minutes of reading up on the concept triigered - things the article seems to completely miss.
It would be much better to expand the article to discuss criticism and defense and bring it into the 2020s. The article can still remain factual and neutral. Neutrality doesn't mean avoiding controversies - it just means reporting on them in a neutral/balanced manner. 
Note: As I said at the start, I'm open to finding a better tag template if you can suggest one.  is just what I though was best at the moment. I do not think it's appropriate to just remove it, however. The article comes across as so oddly lacking some form of cleanup tag is warranted. CapnZapp (talk) 11:33, 28 October 2020 (UTC)
replies: text: Can you be more specific? What do you mean by "only add things both conservatives and liberals agree to"? What type of thing should be included? — Swood100 (talk) 17:00, 17 November 2020 (UTC)
thread_title:  Unbalanced 

message: To avoid an edit war, I find the sentences recently forced into the introduction and later about originalism being rooted in resistance to Brown horribly out-of-place. A political science paper arguing that originalism's popularity as a distinct theory instead of the default method of constitutional interpretation grew as a result of Brown  is not the basic information with a neutral point of view that should be in lead sections, nor even in articles at all stated as it is. A plain reading of the added text basically implies originalism started because racism. Which is obviously not true, as legal sources discussing it go back far farther than Brown and the cited sources for the edits even acknowledge it wasn't the start. I would revert revision 1012458330, but it seems the editor is willing to just revert my revision, so I am looking for some consensus. Jumper4677 (talk) 15:54, 23 March 2021 (UTC)
replies: text: The paper is a peer-reviewed study in the top political science journal. The text adheres to what the study says. Your edit removed the study from the body and the lead without substantive explanation why and no suggestion on how to reword the findings of the study (if you disagreed with how the text was worded).  Snooganssnoogans (talk) 18:13, 23 March 2021 (UTC)
replies: text: @Jumper4677 I agree. Even the paper's abstract acknowledges that its assertion doesn't reflect general consensus. Oktayey (talk) 21:20, 23 March 2022 (UTC)
replies: text: @Jumper4677 is correct.  Just because a paper is in a major political science journal doesn't mean it's not arguing a particular point from a particular perspective. The paper's conclusion should not be presented as fact.  If the paper's conclusion is to be included, it should be presented as an argument. 2603:7000:2303:3F45:A161:5176:F5D0:F470 (talk) 22:32, 30 June 2022 (UTC)
thread_title:  Roots of Originalism 

message: Strict constructionism already has a page dedicated to it, and it doesn't seem necessary to give it its own section on this page, especially given that it's status as a form of originalism is contested (most famously by Antonin Scalia). I think it would be better that the section be removed or, at the very least, moved under "Forms". GuardianH (talk) 06:17, 1 August 2022 (UTC)
thread_title:  Deleting "Strict constructionism" section and/or moving it under "Forms"