An Analysis of the Theory of Original Intent
Russell F. Pannier
William Mitchell College of Law
William Mitchell Law Review, Vol. 18, p. 695, 1992
The theory of original intent is based upon the assumption that judicial discretion in the interpretation of laws subverts the democratic process. Originalists seek to guarantee completely determinate legal rules by eliminating the possibility of adjudicative discretion. In contexts in which the application of a legal rule is uncertain, the originalists recommend that judges apply the rule in accordance with the specific intentions of the rulemakers.
This essay states and evaluates the theory of original intent as a principle of judicial interpretation of legislative and constitutional rules, and draws three conclusions. First, the objectives of the theory cannot be achieved by the means of the principle of original intent. Second, in any case, those objectives themselves are based upon an inadequate understanding of the nature of legal rules and, consequently, cannot be achieved by any means. Third, the theory is based upon an inadequate understanding of the nature of a democractic order.
Number of Pages in PDF File: 35
Keywords: Constitution, Democracy, Intent, Legal Rules, OriginalismAccepted Paper Series
Date posted: November 30, 2005
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