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Originalist

External video
Booknotes interview with Jack Rakove on Original Meanings: Politics and Ideas in the Making of the Constitution, July 6, 1997, C-SPAN

In the context of United States constitutional interpretation, originalism is a way to interpret the Constitution's meaning as stable from the time of enactment, which can be changed only by the steps set out in Article Five. The term originated in the 1980s.

Today, originalism is popular among some political conservatives in the U.S., and it is most prominently associated with Justice Clarence Thomas, Justice Neil Gorsuch, the late Justice Antonin Scalia, and the late Judge Robert Bork. However, some liberals, such as late Justice Hugo Black and jurist Akhil Amar, have also subscribed to the theory.

Originalism is an umbrella term for interpretative methods that hold to the "fixation thesis," the notion that an utterance's semantic content is fixed at the time it is uttered. Originalists seek one of two alternative sources of meaning:

Such theories share the view that there is an identifiable original intent or original meaning, contemporaneous with the ratification of a constitution or statute, which should govern its subsequent interpretation. The divisions between the theories relate to what exactly that identifiable original intent or original meaning is: the intentions of the authors or the ratifiers, the original meaning of the text, a combination of the two, or the original meaning of the text but not its expected application.

Bret Boyce described the origins of the term originalist as follows: The term "originalism" has been most commonly used since the middle 1980s and was apparently coined by Paul Brest in The Misconceived Quest for the Original Understanding. It is often asserted that originalism is synonymous with strict constructionism.

Both theories are associated with textualist and formalist schools of thought, however there are pronounced differences between them. Justice Scalia differentiated the two by pointing out that, unlike an originalist, a strict constructionist would not acknowledge that he uses a cane means he walks with a cane (because, strictly speaking, this is not what he uses a cane means). Scalia averred that he was "not a strict constructionist, and no-one ought to be"; he goes further, calling strict constructionism "a degraded form of textualism that brings the whole philosophy into disrepute".


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