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 (which is the realm of the legislative branch) but only to uphold them. The term originated in the 1980s but the concept is a formalist theory of law and a corollary of textualism.

Today, originalism is popular among political conservatives in the U.S., and is most prominently associated with Antonin Scalia, Clarence Thomas and Robert Bork. However, some liberals, such as Justice Hugo Black and Akhil Amar, have also subscribed to the theory.

Originalism is an umbrella term for two major theories, principally:

• The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it.
• The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be. It is with this view that most originalists, such as Justice Scalia, are associated.

Both of these theories share the view that there is an authority, contemporaneous with a constitution's or statute's ratification, which should govern its interpretation; the divisions relate to what exactly that authority is: the intentions of the authors or the ratifiers, or the original meaning of the text.

The primary alternative to originalism is most commonly described as the Living Constitution; this is the theory that the Constitution was written in flexible terms whose meaning is dynamic.