On The Research Of Originalism In The American Constitutional Interpretation

The research on constitutional interpretation has been the frontier of constitutional theory and the significant problem which is necessary to be resolved for the Chinese constitutional theory urgently. Interpretation is connected with the instruction and restriction of interpretation methodology, since methodology can make sure the objectivity of interpretation. Therefore, the research on constitutional interpretation methodology should be the core problem of constitutional interpretation theory. The domestic research on constitutional interpretation methodology has just put the show on the road, however, the American research on constitutional interpretation methodology has become mature and systematical on the basis of the nature of the written constitution and abundant demands of constitutional interpretation practice. The debate over originalism in American constitutional interpretation has been enduring up to the present. Originalists have been arguing against nonoriginalists, however, originalists cannot agree with each other. From the point of view of originalism, we can grasp the American constitutional interpretation theories and methods roundly. The author makes a comprehensive and systematical analysis and argumentation of originalism. The paper enumerates the varieties of originalism for the first time, traces the historical development of originalism, expounds original understanding and textualism, illustrates originalism's legitimacy and originalism's refutation towards the criticism, and elucidates originalism's posivtive senses of maintaining democracy and rule of law, and its theoretical limitstions. The research may make progress towards the perfection of the Chinese constitutional interpretation methodology. The paper contains six chapters.Chapter 1 expounds the concept of originalism. Originalism should be defined as a theory of how judges should decide constitutional cases, or a sort of judicial constitutional interpretation theory. Originalism has evolved from original intent, original meaning into semantic originalism. Originalists of all sorts share a core conviction that the Supreme Court is bound to adhere to the framers'original intent and the Constitution's original meaning in interpreting the Constitution. We can divide originalism into strong originalism and originalism, strict originalism and moderate originalism according to the role of precedent and different attitudes towards interpretive objectives. The two important varieties of originalism are referred to as original textualism and original intentionalism. The most defensible form of originalism should be a sort of moderate originalism which combines the advantages of original textualism and original intentionalism together.Chapter 2 traces the historical development of originalism in American constitutional interpretation theory and practice. From the founding era to the late nineteenth-century, axiomatic textual originalism remained as the orthodoxy constitutional interpretation methodology. After the early twentieth-century, the modern intellectual revolt against formalism and the rise of modern judicial power brought on the marginalization and eclipse of originalism. Since the New Deal coalition disintegrated and the new conservative political movement emerged in 1980s, these changes created the political space for the reemergence of originalism. Although President Reagon's nomination of Robert H. Bork to the U.S. Supreme Court in June 1987 was vetoed by the Senate, originalism reached a climax with the steady development and became a more subtle and complex doctrine unfailingly. We can discover clearly that the evolution of originalism is much connected with the American developing history of constitutionalism, the profound combination of social holistic revolution, political movement development and moral conception's vicissitudes through the analysis of originalism's origin and evolutionary period in the American constitutional theory and constitutional adjudication practice.Chapter 3 expounds the two typical originalism theories. Bork insisted that only the approach of original understanding met the criteria that any theory of constitutional adjudication must meet in order to possess democratic legitimacy. Only that approach is consonant with the design of the American Republic. Bork's original understanding approach requests judges to search the framers' intent and the Constitution's meaning understood at the time of the law's enactment. The philosophy of original understanding is capable of supplying neutrality in all three respects in deriving, defining and applying principle so as to make sure the legitimacy of the authority of judges. Scalia's textualism is neither strict constructionism nor textual nihilism. Textualism is a sort of reasonable construction methodology. The Great Divide with regard to constitutional interpretation is not that between Framers' intent and objective meaning, but rather that between original meaning and current meaning. Scalia criticized "the living constitution" as an evolutionary approach, and proposed that originalism is a sort of historic standard without judges' own prejudice, and at the same time is compatible with the very principle that legitimizes judicial review of constitutionality.Chapter 4 analyzes the legitimacy foundation of originalism from the four respects. First of all, the legitimacy of originalism is derived from the demand of popular sovereignty. The Constitution emphasizes "the people's consent on the limited government", and the judiciary is set up as the enforcer of the people's concrete will. Therefore, the judiciary can only apply these principles on the basis of the consent of the people at the time of enactment objectively so as to obtain its authority. Originalism is helpful to resolve the "counter-majoritarian difficulty" and improve democracy by maintaining the authority of the Constitution. Secondly, the legitimacy of originalism is derived form the demand of the written constitution. The written nature of the constitution indicates stability and determinability inherently, so the meaning of the Constitution has been fixed at the time of enactment. Courts cannot make an interpretation which was forbidden by the written Constitution according to the framers' intent. The written Constitution is a law document as the fundamental law, and this fact requests interpreters to interpret the Constitution by the law method according to the original meaning. The Constitution as a legal text embodies the author's intent. The interpreters of the Constitution have to explore the reason and intention of the author of the text strictly so as to assure the objectivity of the interpretive results. Thirdly, the legitimacy of originalism is derived from the demand of the separation and balance of powers. The separation and balance of powers requests the non-elected courts to adhere to the original intent of the framers and not to arrogate the limits of the judiciary power, or else it would make the hidden trouble of judge-made law. Lastly, the legitimacy of originalism is derived from the demand of the constitutional neutral principle. The power of judicial review should be the judicial power strictly, and the judiciary should pay careful respect to the other branches' decision in their ranges of authority. Courts have no authority to change the law or the Constitution. The Constitution must be interpreted according to the original intent of the framers and the original meaning of the Constitution, so the courts must choose the neutral principles in order to prevent the Constitution from being politicized excessively.Chapter 5 analyzes originalist's refution towards the criticism which they encountered. The first criticism is based on the view of methodology. Originalism isnot workable in practice because of the scarce historical materials and the courts' limited ability of making historical research. Originalists think that this kind of criticism testifies the difficulty of the historical research only, and cannot reach the conclusion that originalism isnot workable directly. The second criticism is based on the view of democracy. The 1787 Constitution has many democratic defects and the constitution amending procedure is very complex. If originalism forces the courts to adhere to the original intent of the framers under this circumstance, it is the dead hand controlling the country. According to the potential sovereignty, originalism doesnot impose the political prejudice of the dead on the alive simply and arbitrarily, and retains the recurrent expressive system of the sovereignty in the modern time so as to assure the continuity of the sovereignty. The third criticism is based on the text as indeterminate. All the arguments of the indeterminate text deconstruct the author's control on the text more or less, destroys the stable and determinate meaning of the text. In order to maintain the tradition of rule of law, originalism undertakes the theoretical mission of "anti-deconstruction". Originalism thinks that the remedy of the textual indeterminacy isnot the errand of constitutional interpretation, but the duty of constitutional construction of the political departments. The fourth criticism is based on the view of the separation and balance of powers. Judicial activists insist that the Court should play a sort of substantial and active policy-oriented role in the political life, and the courts should make creative interpretation according to social reality and real needs. Originalism thinks that the judicial power is the power of decision, so the Court should obey the law and policy made by the political departments with the loyalty to the Constitution and prevent the justices from applying their value determination into decisions. The nature of the debate between originalism and judicial activism lies in the different opinions about the proper role of the judicial power in the constitutional system. Excessively judicial activist role will bring the Court a heavy political burden, erode the foundation of its legitimacy. The Court should implement moderate judicial activism in the framework of judicial restraint. Additionally, nonoriginalists have proposed that the framers themselves did not expect their own intentions to control subsequent interpretation of the Constitution and there are anti-originalist clauses in the Constitution. Originalists make powerful refutation from their own standpoints.Chapter 6 makes an overall and comprehensive evaluation of originalism. Originalism is the pursuit of objectivity. Adherence to the originalist interpretational method can assure the predictability of the decisions and the invariability of the law. Since originalism is aimed to maintain the popular sovereignty and the authority of constitutional text, it is the constitutional interpretation theory which conforms with democracy and the rule of law in the constitutional system. The theory of Originalism has also its own limitations. Originalism emphasizes the determinability so excessively that constitutional interpretation is deprived of flexibility. At the same time, originalism ignores three factors' influence to the constitutional interpretation, such as interpreters' subjective value determination, social reality, and the common law tradition of judge-made law. The essence of the debate between originalism and nonoriginalism is the relationship between predeterminate obligation and subsequent democracy, the relationship between the objectivity of constitutional interpretation and the creativity of constitutional interpretation, the relationship between stability and adaptability. Any exclusive interpretation theory cannot solely define the Court's interpretive practice, and simultaneously the Court's interpretive practice hasnot followed any exclusive interpretive theory. The Court not only adheres to constitutional text, the framers' intent, constitutional precedent and constitutional history, but also considers the reasonable demands of the social reality, public policies and moral ethics so as to realize accommodation of the objectivity and creativity of constitutional interpretation. In doing so, the Court can maintain the authority and stability of the Constitutional text, at one time make the Constitution adaptive to the various social demands.