On The Theories Of Originalism In The Interpretation Of Us Constitution

After numerous debates and contentions, the theory of originalism has come to occupy an important position in theories concerning US Constitution. This position manifests itself not only in the important guidance and determination originalism provides in actual practice of constitution interpretation, but in the fact that their attitudes towards originalism have become an inescapable question for relevant scholars. However, this does not necessarily mean the victory of originalism. With the acquiring of academic position and influence, originalism is faced with the danger of losing its essence as a theory. This theoretic essence determines the interpretative power of this theory and also determines the possibility of its becoming a theory with specific position and claim.Efforts have been made in this dissertation to present a theoretic"map"for the theory of originalism, which will reveal not only the viewpoint, position and transformation of argumentation in the process of the evolution of this theory, but also the profound theoretic and social causes behind these transformations. Efforts have also been made to trace the consensual characteristics in the"family"of originalism theories. With these as a basis, originalism is differentiated from other theories concerning constitution interpretation with these theoretic characteristics and consensus being employed. The difference of opinions in theories of originalism has also been further analyzed on the same basis. The purpose of this dissertation is not limited to the mapping of this theory, while at the same time, comments have been made concerning the debate and contention between originalism and non-originalism theories and difference among originalism. These efforts have been directed to the protruding problems in the development of theories concerning originalism and causes behind them. Examples of this sort include the core claims of original meaning and reasons for the fidelity to the original meaning of the Constitution. These descriptions and analyses are intended for the disclosure of the direction of future development of originalism theories.The first chapter dwells on the three typical incidents and cases in the evolution of the theory of originalism and the presentation of the history and present state of affairs of originalist theories in America. The core question of this dissertation has also been unfolded, together with relevant delimiting of the originalist theory in question.Chapter two of this paper centers on a historical investigation of the theory of originalism from perspectives of actual practice of constitution interpretation and related academic development, with a view to the mastery of the sources and theoretic development of this theory. With this as a basis, analysis has also been performed about the theoretic features and claims of originalism at its different stages of development. The causes of the transformation from old originalism to its new form have also been explored. This historical exploration of the actual practice of originalism in constitution interpretation and its theoretic development help reveal four transformations concerning the characteristics of originalism at different stages of its development: first, from its orientation of criticism to that of construction; second, from confusion to differentiation of interpretation and elucidation; third, from emphasis on respect of the democratic majority and autonomy of judicature to fidelity to the constitution; fourth, from singularity to pluralism of the original meaning of the Constitution. The reasons behind these transformations are as follows: on the one hand, the debates and contentions between originalism and non- originalism promote the innovation of the theory per se, while on the other hand, the practice and the constitution interpretation enriches relevant theoretic development.Chapter three focuses on the generalization and summary of the family similarity of originalism, and with this as a basis, three fundamental consensual theses in originalist theories have been put forward as their theoretic essence. At the same time, these consensual theses separate originalist theories from other ones, and the connections between them have also been analyzed. In the process of the delimitation and summary of originalist theories, the method presented by Mitchell N. Berman has been employed, which includes four standards, namely object, strength, status and subject. On this basis, three basic consensual theses have been put forward, namely, the meaning thesis, the origin thesis and the fidelity thesis. These three basic consensual theses constitute the family similarity of originalist theories. In other words, although different originalist theories have different ideas about the original meaning, they all insist on the objectivity of the original meaning; although they have different reasons, they all insist on the fidelity to the original meaning. Furthermore, these three basic consensual theses can soundly separate originalism from interpritivism, textualism, activism, historicism, conservatism and many other theories concerning constitution interpretation. Efforts have also been made to analyze the connection between originalism and these other theories of constitution interpretation.Chapter four is concentrated on the analysis of the arguments around the meaning thesis between originalism and non-originalism. The meaning thesis of originalism should provide answer to two questions, that is, what is the original meaning and how to get it. Due to the fact that different originalist theories define the original meaning differently, their conception of its acquiring is accordingly different. Concrete analysis has been performed via comparison between original intent originalism and original public meaning originalism. Non-originalist criticism of the originalist meaning thesis is focused on two aspects: first, ontological criticism, which holds that there is no single original meaning of the Constitution; second, hermeneutic criticism, which denies the possibility of obtaining the original meaning of the Constitution via interpretation. Originalists also respond from two respects. The first is that they hold that the original meaning can be obtained for hermeneutic perspective, and the second is that the original meaning exists objectively from semantic point of view and therefore obtainable. Chapter five centers around the analysis of the debates upon the fidelity thesis between originalism and non-originalism. The originalist fidelity thesis endeavors to answer three questions concerning the object of fidelity, the justifiable basis of the fidelity to the Constitution and the means for this fidelity. 1. in terms of the object of fidelity, due to that fact that different originalists define the original meaning differently, the objects of fidelity are also different. While consistency is kept on the origin thesis and the meaning thesis, that is, it is believed that the fidelity to the Constitution is fidelity to the original meaning. 2. in terms of the justifiable foundation of the fidelity to the Constitution, there are two approaches: first, to connect originalism with the problem of dead hands in constitutional theories. Originalism regards its justification of the a priori constraint from the Constitution as its justifiable foundation and holds that the a priori constraint of the Constitution comes from democracy and the text of the Constitution. Second, the balance of powers is viewed as the justifiable foundation for this fidelity. The reason is that after the court is granted to power to interpret the Constitution, it then shoulders the duties deriving from the balance of powers. As originalists see it, the institution of constitution interpretation based on the balance of powers makes it a must for courts to stick to the original constitution to realize their duties of judicial self-constraint and judicial review. However, analysis of different originalist theories shows that efforts of originalism with as its basis the balance of powers are futile, and District of Columbia v. Heller can serve as an excellent example. 3. concerning the problem of the means of fidelity, different originalists adopt different attitudes and poisitons. For weak originalism, the original means of the Constitution is only one of the factors for interpretation and the problems of fidelity of out of the question. While for exclusive originalism, to keep fidelity means that the change of the original means can only be achieved via amendment. Precedent cases falling short of the original meaning of the Constitution should not be followed and they should even be overturned. For lexical originalism, a relative position of fidelity is emphasized and the fact is acknowledged that courts can follow precedents when the original meaning is unobtainable.Chapter six concentrates on the prospect of originalism in future. The evolution of originalism is unfolded around the meaning thesis and the fidelity thesis and these two theses are inseparable. The meaning thesis emphasizes the fact that originalism is originalism in a legal sense, while the fidelity thesis emphasizes that in a political sense. These two senses mingle together and are mutually dependent. The simultaneous resolution of these two theses is the future direction of the development of originalist theories.