Original meaning

Original meaning is the dominant form of the legal theory of Originalism today. It was made popular by Supreme Court Justice Antonin Scalia. It contends that the terms of the United States Constitution should be interpreted as meaning what they meant when they were ratified, which is to say, it asks the question: "What would a Reasonable person living at the time of ratification have understood these words to mean?"

The theory stands in equal opposition to interpretivist theories like Original intent and legal realist theories like living documentarianism.

Theory

Original meaning is a Formalist theory, and a logical extension of Textualism. Textualists believe that a statute means whatever the plain meaning of its words is, as opposed to other potential meanings, such as what those who drafted the law or voted for it intended it to say. Formalists would point out that it is unnecessary for any member of the legislature to share the intentions of any other member of the legislature, or even to have a particular intent; what counts is their vote, just as if a voter enters a polling station while inebriated, and indicates a preference for the wrong candidate, their vote will count as a vote for the person they indicated on the ballot paper, not for the candidate for whom they intended to vote before they started drinking. Likewise, even if not a single member of the legislature has read and comprehended the effect of a given bill, once it becomes law, it is a law no more nor less valid than one which was passed with every member of the legislature of the same mind and understanding. This being the case, it is the text of the law which governs.

This is an entirely self-executing theory when dealing with a statute passed, say, in the last ten years. However, it should be obvious to anyone that language and its use changes through time. What is a textualist to do when confronted with a statute that is a hundred years old? Or with the Constitution, which is over two hundred years old? The principles that undergird textualism urge that the statute (or Constitution) means whatever the plain meaning of its words at the time at which it was ratified says. Original meaning is no more than this.

Practice

An Originalist inquiry into the original meaning of the Constitution is able to cast a much broader net than an inquiry into the original intent.

For example, Originalists of all stripes cite the Federalist Papers. It is fairly tenuous to suggest that this represents a good source for the original intent - after all, Alexander Hamilton, who wrote the lion's share of those essays, was absent for the greater part of the Philadelphia Convention, and John Jay did not attend it at all. The collected anti-Federalist papers, of course, will be no use at all to a person searching for the original intent of the framers. But as evidence of how a reasonable person at the time would have understood the words of the Constitution, the Federalist Papers and the antifederalist essays are evidence of direct relevance.

Likewise, neither John Adams nor Thomas Jefferson attended the Convention; ipso facto, they are not framers, and thus two of the most prolific writers of the founding era are necessarily excluded (or, at best, abstracted) from an original intent inquiry. But as reasonable contemporaries of the founding, their writings are entirely valid to an original meaning inquiry.

One of the primary virtues of original meaning over original intent is that the original meaning is a fairly discernible thing, while the original intent is nebulous and uncertain. This is well-illustrated by the use of dictionaries. Even contemporaneous dictionaries are of dubious value to an original intent inquiry, but of high value to an original meaning inquiry: we can establish what the words the Framers chose meant, but that is not necessarily conclusive as to what they intended to say (see Law of unintended consequences).

Origins

The theory was arguably pioneered and popularized by Justice Antonin Scalia; whether Scalia can take credit for inventing it, he remains one of its most forceful and high-profile proponents, although he is also accused of deviating from the method (he has himself admitted that "in a crunch I may prove a faint-hearted originalist") (Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 at 864) into the territory of Bad originalism.

See also

• Originalism
• Cf. Original intent
• Legal formalism
• Textualism
• Bad originalism