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<!-- you can have any number of categories here --> [[Category:Wikipedia]] [[Category:Originalism]] <!-- 1 URL must be followed by >= 0 Other URL and Old URL and 1 End URL.--> {{URL | url = https://en.wikipedia.org/wiki/Originalism#Arguments_opposing_originalism}} <!-- {{Other URL | url = }} --> <!-- {{Old URL | url = }} --> {{End URL}} {{DES | des = 10 counter arguments against originalism. | show=}} <!-- insert wiki page text here --> <!-- DPL has problems with categories that have a single quote in them. Use these explicit workarounds. --> <!-- otherwise, we would use {{Links}} and {{Quotes}} --> {{List|title=Arguments opposing originalism (Wikipedia)|links=true}} {{Quotations|title=Arguments opposing originalism (Wikipedia)|quotes=true}} {{Text | If one is then to look at the interpretation (or, meaning), which inheres at the particular time period, the question becomes: why is that reading the essential one?. Or, restated, an essential reading, then, is owing to whom? Is it owing, then, to the meaning derived by the average person at that time? The collective intent of the voters who passed it? Or is it possible that they indeed entrusted the framers with the authority to draft the constitution; i.e., that the intent of the drafters should remain relevant? Originalism faces hermeneutic difficulties in understanding the intentions of the Founding Fathers, who lived 200 years ago (original intent), or the context of the time in which they lived (original meaning). Justice Scalia accepted this problem: "It's not always easy to figure out what the provision meant when it was adopted…I do not say [originalism] is perfect. I just say it's better than anything else".[33] Legal controversy rarely arises over constitutional text with uncontroversial interpretations. How, then, does one determine the original "meaning" of an originally broad and ambiguous phrase? Thus, originalists often conceal their choice between levels of generality or possible alternative meanings as required by the original meaning when there is considerable room for disagreement. It could be argued (as, for example, Justice Breyer has) that constitutions are meant to endure over time, and in order to do so, their interpretation must therefore be more flexible and responsive to changing circumstances than the amendment process. The Ninth Amendment is the exception in that it does establish a rule of constitutional interpretation ("The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people."). When interpreted using original intent or original meaning, it clearly protects rights which the founders had not thought to list explicitly—this could be interpreted as a direct rebuke to all Textualist or Formalist legal schools including originalism. Originalism allows the dead hand of prior generations to control important contemporary issues to an extraordinary and unnecessary level of detail. While everyone agrees that broad constitutional principles should control, if the question is whether abortion is a fundamental right, why should past centuries-old intentions be controlling? The originalist's distinction between original meaning and original intention here is unclear due to the difficulty of discussing meaning in terms of specific details that the Constitutional text does not clarify. In writing such a broad phrase such as "cruel and unusual", it is considered implausible by some that the framers intended for its very specific meaning at that time to be permanently controlling. The purpose of phrases such as "cruel and unusual," rather, is specifically not to specify which punishments are forbidden, but to create a flexible test that can be applied over future centuries. Stated alternatively, there is no reason to think the framers have a privileged position in making this determination of what is cruel and unusual; while their ban on cruel punishment is binding on us, their understanding of the scope of the concept "cruel" need not be. If applied scrupulously, originalism requires the country either to continually reratify the Constitution in order to retain contemporary standards for tests such as "cruel and unusual punishment" or "unreasonable searches and seizures," or to change the language to specifically state that these tests shall be administered according to the standards of the society administering the test. Critics of originalism believe that the first approach is too burdensome, while the second is already inherently implied. 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)) 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 that hence should not be recognized by the judiciary. However, 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. Another example is the centrality of the concept of "Person" to the Constitution and the fact that any claim by originalists such as Bork, Scalia, or Thomas that the Constitution does not speak to human rights and gender equality a fortiori reflects a judicial effort to legislate meaning into the term Person; for example, Justice Scalia's assertion that women's equality is entirely up to the political branches[34] ignores the use of the term "Person" rather than "Man" in the Constitution, and the common meaning of the term at the time,[35] and instead interprets the Constitution to say that only heterosexual men and male fetuses are "Persons" thus reading silence into the Constitution on a matter on which it is not silent for the purpose of narrowing the Constitution's meaning. The device of "originalism" is thus used to replace the original intent, the original meaning, and the text itself with Justice Scalia's subjective view or desires. 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 and the meaning of those words at the time of ratification or at the time of interpretation (to the extent those meanings differ). For example, Scalia said "It's a symbol of the fact that government comes—derives its authority from God."[36] }}
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