Original Intent is a judicial approach in which justices or judges attempt to understand a constitutional provision by considering what it was meant to mean at the time it was originally drafted. This is also called ‘intentionalism’ or ‘originalism’.
In the US, originalists believe that the Constitution, as written by the 55 Framers should be followed as closely as possible.
Originalists believe that any judges who attempt to deviate from the original understanding of the constitution are, by necessity of doing so, replacing it with their own subjectivity. Judges, they argue, are a product of their own background, education and history. They are therefore influenced by a variety of factors in making their judgements. By following the doctrine of original Intent, justices can help to limit the influence of these extraneous factors.
Originalists argue that the danger that comes from ignoring original intent is that judges ‘legislate from the bench’. This means that through their judgements they are making law, not interpreting and applying it as the Framers intended.
For originalists, it is important that the constitution does not become a vehicle for social change. They instead believe that the protections the Constitution offers should only extend to issues in society that are directly (or can reasonably be said to be implied) in the Constitution.
So, for example, in the 2015 Obergefell vs Hodges case the Supreme Court ruled by 5-4 that the 14th Amendment required all states to recognise same-sex marriage as a constitutional right. One of the judges who dissented against this decision was Justice Clarence Thomas, who is regularly described as an originalist.
In his dissent he argued that cases like Obergefell:
“…invite judges to do exactly what the majority has done here—roam at large in the constitutional field guided only by their personal views as to the fundamental rights protected by that document”
He also added that he did not believe that government was capable of bestowing dignity through its actions. He argued that this was inherent and was not something that could be taken away.
In particular, Thomas appeared to take issue with Justice Kennedy. Justice Anthony Kennedy is currently the key ‘swing-vote’ on the Supreme Court. This means the way that he votes normally decides the outcome of most cases. In Obergefell vs Hodges he wrote the majority opinion and said:
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
There are a number of criticisms of originalism:
1. It assumes that the Constitution was correct in the first place. It implies that the Framers were unanimous in their agreement, however, this was not the case. The Constitution is a product of the combined wisdom of the Founding Fathers and is by no means inherently correct.
2. The Constitution is very vague, it was impossible for the Founding Fathers to design constitutional mechanisms that would foresee all possible eventualities. The question arises as to whether a document that is deliberately vague can in fact be interpreted at all.
3. The Constitution was written 230 years ago. Any document written in the 18th century that seeks to define how society works is bound to be out of date in the 21st century. It is therefore the job of the judiciary to interpret the constitution in line with modern society. As Thomas Jefferson famously remarked – “The Dead should not rule the living”.
Despite these criticisms, Original Intent is a mainstay of judicial philosophies. Indeed, the newest justice of the Supreme Court, Neil Gorsuch, can be defined as as originalist, as was Antonin Scalia whom he replaced.
With one of the most liberal members of the court, Ruth Ginsburg, aged 84 and Anthony Kennedy aged 81, there is a significant chance that Donald Trump may have the chance to appoint another originalist to the Supreme Court. This would alter the balance of the court significantly.