The most common form is so-called "original meaning" originalism. This form that focuses on how ordinary people at the time would have understood the language of the constitutional provision. A largely-discarded form of orginalism is so-called "original intent" originalism, which focuses on what the authors of the constitution might have meant.
The philosophical basis of originalism is that a constitution only has force because it was approved by the people when it was ratified. Thus, the understanding of the constitution by the people who ratified it is the only valid interpretation.
Originalists reject the "evolving standards of decency" approach to constitutional interpretation that allows judges to effectively amend the constitution based on their own views of what the constitution "should" say. Instead, originalism is anchored in one certain interpretation.
Originalism is closely associated with Justices Hugo Black, Antonin Scalia, Justice Clarence Thomas, and scholar Robert Bork, all of whom have publicly supported its use and produced scholarship in support of it. Justice Neil Gorsuch is also considered to be a proponent of originalism.
- Justice Hugo Black felt that the Founders' actual intent dictated constitutional interpretation.
- Justice Antonin Scalia felt that it was the original meaning as understood by intelligent, informed people of that time
- Justice Robert Bork preferred the original meaning as understood by the public at the time
For a general survey of the different forms of originalism, see Jeffrey Omar Usman, "GOOD ENOUGH FOR GOVERNMENT WORK: THE INTERPRETATION OF POSITIVE CONSTITUTIONAL RIGHTS IN STATE CONSTITUTIONS," 73 Alb. L. Rev. 1459 (2010).
Judge Posner sharply criticized originalism in his following concurrence to extend Title VII of the Civil Rights Act of 1964 to create a new federal right based on sexual orientation, despite the lack of any such right in the statute passed by Congress:
|“||I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of “sex discrimination” that the Congress that enacted it would not have accepted. This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch. We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963-1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught.||”|
Kimberly Hively v. Ivy Tech Community College, 2017 WL 1230393 (7th Cir. Apr. 4, 2017) (Posner, J., concurring).
- Joe Carter (20 Mar 2017). 9 Things You Should Know About Neil Gorsuch and Supreme Court Confirmations. The Gospel Coalition, Inc.. Retrieved on 21 Mar 2017. “In his judicial philosophy, Judge Gorsuch is considered a proponent of originalism, a manner of interpreting the Constitution that begins with the text and attempts to give that text the meaning it had when it was adopted,...”
- A. Scalia, A MATTER OF INTERPRETATION, ISBN 0-691-00400-5, Amy Guttman ed. 1997, at p.23.