'Original' Means Old, 'Original' Means New: An 'Original' Look at What 'Originalists' Do
67 National Lawyers Guild Review 135 (2010)
31 Pages Posted: 22 Jan 2011 Last revised: 3 Jun 2012
This article explores two different forms of Constitutional "originalism." One form (espoused by Justice Thomas in 2008) purports to embrace the intent of a specific oracular group while the other form (that of Justice Scalia) purports to embrace the original meaning of the Constitution’s text. Though originalism in either form may have initial common sense appeal, both forms of originalism founder upon analysis. Deconstructing such flawed doctrines proves useful in constructing a more sensible approach to Constitutional interpretation. This more sensible approach recognizes and respects, among other things, three levels of Constitutional meaning: purpose embodied in the Constitution's Preamble, the non-Preamble textual frame, and solutions to the issues framed. The landmark civil rights case of Lawrence v. Texas serves as a good example of such three-tiered analysis and demonstrates how “original” means both old and new in Constitutional interpretation.
Keywords: Originalism, Original Intent, Original Meaning, Interpretation, Constitutional Interpretation, Semantics, Semiotics, Judicical Activism, Meaning, Declaration of Independence, Constitution, Preamble, Lawrence v. Texas, Gay Rights
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