Saturday, July 24, 2010

Is Originalism Libertarian

Mikołaj Barczentewicz pens Is Orginalism Libertarian - It's a recommended read - part of which:

What is originalism?

Originalism is a method of interpreting the Constitution, apart from that there is no simple answer to the question "what is originalism?" The main reason is that there really is a variety of "originalisms." Historically, the first version of originalism was "original intent" originalism and it was based on an assumption that "constitutional interpretation should be guided by the original intentions of the framers." Of course, many questions arise as to what the "intentions" are, whose intentions we should be concerned with and so on. Overwhelming and arguably conclusive criticism rendered original intent originalism dead and buried in the eyes of academics.

However, this critique did not bury originalism for good. In 1986 Antonin Scalia called for changing the label "from the Doctrine of Original Intent to the Doctrine of Original Meaning." This event marks the advent of "New Originalism" or "original public meaning" originalism. New Originalism is not concerned with intentions or expectation of the Framers. Instead, it tries to establish original public meaning of the Constitution (as amended). What does it mean in practice? Usually, it means a tedious research in 18th-century dictionaries, newspapers and legal treatises in search of the meaning that was shared by users of English at the time of ratification.

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