Original intent
Encyclopedia
Original intent is a theory in law
concerning constitution
al and statutory
interpretation. It is frequently—and usually spuriously—used as a synonym
for originalism
generally; while original intent is indeed one theory in the originalist family, it has some extremely salient differences which has led originalists from more predominant schools of thought such as original meaning
to castigate original intent as much as legal realists
do.
should determine what the authors of the text were trying to achieve, and to give effect to what they intended the statute to accomplish, the actual text of the legislation notwithstanding. As in purposivism, tools such as legislative history
are often used.
, other schools of Originalist thought have been as critical of original intent as non-Originalists.
, the predominant school of thought for legal interpretation is the living tree doctrine
, under which interpretations can evolve along with the society, to deal with new conditions that were different or did not exist when the Constitution
was framed.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
concerning constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
al and statutory
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
interpretation. It is frequently—and usually spuriously—used as a synonym
Synonym
Synonyms are different words with almost identical or similar meanings. Words that are synonyms are said to be synonymous, and the state of being a synonym is called synonymy. The word comes from Ancient Greek syn and onoma . The words car and automobile are synonyms...
for originalism
Originalism
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
generally; while original intent is indeed one theory in the originalist family, it has some extremely salient differences which has led originalists from more predominant schools of thought such as original meaning
Original meaning
In the context of United States constitutional interpretation, original meaning is the dominant form of the legal theory of originalism today...
to castigate original intent as much as legal realists
Legal realism
Legal realism is a school of legal philosophy that is generally associated with the culmination of the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical legal thought in the United States...
do.
Approach
Original intent maintains that in interpreting a text, a courtCourt
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
should determine what the authors of the text were trying to achieve, and to give effect to what they intended the statute to accomplish, the actual text of the legislation notwithstanding. As in purposivism, tools such as legislative history
Legislative history
Legislative history includes any of various materials generated in the course of creating legislation, such as committee reports, analysis by legislative counsel, committee hearings, floor debates, and histories of actions taken...
are often used.
Originalist criticisms of original intent
Despite the frequent (and often, insidious) conflation of Original Intent with OriginalismOriginalism
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
, other schools of Originalist thought have been as critical of original intent as non-Originalists.
- Original intent presumes that there is a single, unified intent behind a text. In the case of the Constitution, the Philadelphia ConventionPhiladelphia ConventionThe Constitutional Convention took place from May 14 to September 17, 1787, in Philadelphia, Pennsylvania, to address problems in governing the United States of America, which had been operating under the Articles of Confederation following independence from...
was composed of over fifty men, who spent an entire summer compromising and arguing over provisions that were interpreted very differently the moment the Constitution's text became public. It is far from clear, therefore, that those fifty-plus men had—i.e. agreed upon—a single original intent of the text, or if their purposes in drafting the Constitution were predicated on personal self interest. - Even if the Convention did have a single, unified intent, it is unclear how it could reliably be determined from two centuries' distance.
- Many of the clauses of the Constitution are relative, and thus specifically defy any claim that it is possible to divine a single, indisputable outcome to any specific problem or dispute. Key passages in the Constitution were originally cast as flexible evaluations, such as "due process," a phrase that suggests the definitions, requirements and dimensions of court or other governmental proceedings sufficient in any given context to permit citizens to be deprived of their rights were never intended to be fixed forever.
- In the case of US Federal LawFederal government of the United StatesThe federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
, law is made by majority vote in two chambers, and is then signed by the PresidentPresident of the United StatesThe President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
. 536 people are therefore potentially involved in this process, and not one of them needs to share the same intentions as any other of them in order to play their part in ratifying the bill. They need only vote; their vote will count the same if they share the same intent as their colleagues, if they do not share the intent of their colleagues, and indeed, if they have no particular intention, and are voting solely because their party whip handed them a note saying "be on the Senate floor at 9:36pm and say 'Aye'." Their vote will count even if they are falling-down drunk or if they have not even read the bill under consideration. All of which is to say that giving effect to the intent of the legislature not only presumes that there is a singular intent—no less dubious an assertion where statutes are concerned than where the Constitution is—but, worse yet, the very diversity of these bodies may permit a judge to corrupt his inquiry by finding a floor statement or committee report which suggests an intent that the Judge thinks would be a good result. - Original intent falls afoul of formalistLegal formalismLegal formalism is a legal positivist view in philosophy of law and jurisprudence. While Jeremy Bentham's can be seen as appertaining to the legislature, legal formalism appertains to the Judge; that is, formalism does not suggest that the substantive justice of a law is irrelevant, but rather,...
theories of law, which explicitly decline interest in how a law is made, an inquiry which is obviously at the core of an original intent inquiry. - Original intent cannot be reconciled against TextualismTextualismTextualism is a formalist theory of statutory interpretation, holding that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or...
. Most of those who are originalists in Constitutional matters are also textualists in statutory matters, and textualism rejects the value of the intentions of the legislature in passing a text. If one adopts originalism as an "error-correcting lens which fits over textualism to account for the passage of time," one cannot adopt an originalist theory which is incoherent with the underlying textualism.
Other schools of thought
In CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, the predominant school of thought for legal interpretation is the living tree doctrine
Living tree doctrine
In Canadian law, the living tree doctrine is a doctrine of constitutional interpretation that says that a constitution is organic and must be read in a broad and progressive manner so as to adapt it to the changing times....
, under which interpretations can evolve along with the society, to deal with new conditions that were different or did not exist when the Constitution
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
was framed.
See also
- Judicial activismJudicial activismJudicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
- Legal formalismLegal formalismLegal formalism is a legal positivist view in philosophy of law and jurisprudence. While Jeremy Bentham's can be seen as appertaining to the legislature, legal formalism appertains to the Judge; that is, formalism does not suggest that the substantive justice of a law is irrelevant, but rather,...
- OriginalismOriginalismIn the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
- Original meaningOriginal meaningIn the context of United States constitutional interpretation, original meaning is the dominant form of the legal theory of originalism today...
- TextualismTextualismTextualism is a formalist theory of statutory interpretation, holding that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or...