The term Originalism has become a common one around the Supreme Court and in the legal field. The concept, applied to the Constitution, means to interpret the text based on either the original intent of the Founding Fathers or what the text would have meant to people at the time of ratification. There have been several valid critiques of Originalism but it has captured a sizable audience. Scoffing at the Living Constitutionists’ amorphous interpretations, Justice Antonin Scalia brought the theory of Originalism into practice on the Court.

Failed Supreme Court Nominee Robert Bork would have been the second Originalist on the Court in a span of less than three years. However, it wouldn’t be until 1991 (Scalia was confirmed in 1986) when Clarence Thomas joined the Court did it have two full-fledged Originalists. Both powerfully conservative in their jurisprudence, Scalia and Thomas were frequent dissenters and managed to shift the argument to their battleground, on what the Constitution would have meant in 1791. This is no more on show in the famous gun rights case, District of Columbia v. Heller. In this case, Scalia argued, through textualism and Originalism, that the Second Amendment protected an individual’s right to bear arms. Previously, it had been understood that it only protected a more general, group-based right based on the operative “militia” clause. Scalia said the clause did not affect the base meaning of the text. Both Stevens and Breyer argued against this, saying that the militia clause only gave the right for States to have state-based militias with weaponry, not for an individual right to use guns for self-defense. Breyer went farther and used historical evidence to evince that the Founders never intended an individual right to weaponry for self-defense purpose, and historians who read the case generally agreed with Breyer. But that’s not the point. The point is they were fighting on Scalia’s turf. Doing this, albeit with several very conservative justices, Scalia moved the Court to the right.

One important distinction is between Scalia and Thomas’s views of Originalism. Scalia interpreted based on original meaning, what people at the time of ratification would have thought the text of the Constitution. The same follows for the people in 1868 with the Fourteenth Amendment. Scalia was willing to bend at times, conceding that he would have joined the majority in Brown v. Board even though Originalist views would not justify it. Thomas, however, took more of a hard-line approach to the Constitution, arguing for original intent. He’s always searching for what the Founders meant to say with their words in the Constitution, and is usually not willing to budge. Thomas will join majorities or dissents where he wants the same outcome, but will almost always write a concurrence or dissent with his own reasoning to arrive at that conclusion.


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s