On The Debate Of American Constitutional Originalist Methodology In1970s And1980s

Originalist methodology is very important to American constitutional interpretive theory. Untill now, there are three stages of development of originalism:original intent,original understanding and original public meaning. First two is old originalism, the latter is new originalism. This article is concentrate on old originalism by one significant debate. The constitutional originalist methodology debate is useful for the research of originalism. First, originalist responded all the critique from its opponent, it is important to my research; Secondly, after the debate, new originalism replaced old originalism. This reflect the different stages of development of originalism; Finaly, there are three courses of originalist methodology debate. Before1985, the debate is amongst in the professors. Between1985and1987, the stage of the debate enlarge to political circles. After the lose of the nominate of Robert Bork, originalist methodology debate become a public topic. The debate of American originalist methodology is not only a academic issues, but a public issues. So, we can understand American constitutional interpretive theory in all-sided by researching this debate.In charpter1, we think there are three reasons which lead to the originalism debate. Warren Court and Burger Court is the direct reason because there judicial activism; Reagan Revolution and the revive of conservatism in1980s is the political reason for the debate. The two reasons is why the originalism debate happened in1970s-1980s. Beyond that, we consider there is a radical reason, it lead to a originalist methodology debate in the history no matter when. The conflict between the nature of written constitution and the creativity of constitutional interpretation is the main content of the radical reason.Charpter2is about the feasibility of origianlist methodology. First, is there one thing like original intent and what is the original intent? From the two sides of the debate, original intent is framer's intent. But is framer have a intent as a collective? Secondly, can we ascertain the framer's intent? Non-Originalist believe originalist can not ascertain the framer's intent from the historical date. The problem of historical date, institutional intent and levels of abstract are the three issuses of non-originalist. Originalist responds all critique from non-originalist. In a word, the non-originalist's problem is not a problem, originalist can ascertain the framer's intent.If there is one thing like framer's intent, and we can ascertain it from the historical research. There is another problem. It is the legitimacy of originalist methodology. Originalist give legitimate reasons to originalism from four sides. First, they think the nature of written constitution lead to the leading role of originalism in American Constitutional interpretive theory; Secondly, they believe the function of originalism ensure the legitimacy of originalism; Thirdly, originalist legitimized originalism from comparing constitutional interpretation to contract and statutory interpretation; Finaly, because there is not a principle theory can replace originalist methodology, so we must bind by originalism in judicial practice. Non-Originalist criticized the originalist's reasons and defended the democratic legitimacy of non-originalism. In short, originalist and non-originalist are not the final winner.In chapter4, we discuss the historical influence and value of the originalist methodology debate. For originalism, the debate lead to the transform of the originalism. New originalism replaced old originalism. But we must realize the old originalism is still alive. On the one side, there are still some scholar approve the old originalism. On the other side, although the new originalism replaced the old originalism, but there are some uniform assertion between the new originalism and the old originalim. After the debate, originalism is not any more a uniform theory, because the new originalism is different from the old originalism and there are varied new originalism, so we can not say which originalim is the new originalism. For non-originalism, the transform of originalism is the victory of originalist. But they can not proof the democratic legitimacy of non-originalism, so non-originalist is also not the final winner of the debate. Although some scholars criticized the academic contribution and practical influence of the originalist methodology debate, but we know there is a special times background for the originalist methodology debate. For constitutional theory, there are veried constitutional interpretative methods. In the different field and times bachgroud, the different method will hold the leading role.The proper role of framer's intent in constitutional interpretation is the core problem of the originalist methodology debate in1970s to1980s. Before berger's study result of fourteenth amendment, the important function of framer's intent is to legitimate the judicial review. But after berger's result, above function is no longer in existence. But we can not deny the value of framer's intent thorough. Even though is not the final point of constitutional interpretation, framer's intent is the best starting point of constitutional interpretation.