Origin Originalism traces to Robert Bork's 1971 proposal and was advanced most prominently from the 1980s onward by Justice Antonin Scalia; living constitutionalism has early twentieth-century roots associated with jurists including Oliver Wendell Holmes Jr.
Constitutional interpretation is the doctrine concerned with the method a court uses to give legal meaning to a constitution's text. In United States constitutional practice two enduring and rival schools dominate the debate. Originalism holds that a constitutional provision's meaning is fixed at the time of its adoption and that judges should read the text according to that original understanding. The rival living constitutionalism, also called judicial pragmatism, holds that the constitution's meaning can develop over time alongside the needs of society even without formal amendment. This atlas records both positions as they are argued by their own proponents rather than declaring either the correct method; which interpretive theory should govern is a live scholarly and judicial dispute, not a settled question.
Facts
Origin PeriodOriginalism traces to Robert Bork's 1971 proposal and was advanced most prominently from the 1980s onward by Justice Antonin Scalia; living constitutionalism has early twentieth-century roots associated with jurists including Oliver Wendell Holmes Jr. 1 Core PrincipleCourts must choose between reading a constitutional provision by the meaning it held at adoption and reading it as capable of evolving with society; the named alternative to originalism is living constitutionalism, or judicial pragmatism. 2 Cross-Tradition Connections
Associated With
Originalism's most prominent modern judicial advocate.
Formulated By
Credited with proposing the first modern theory in 1971.
In Legal System
Sources
1. Originalism (Wikipedia)
WikipediaLead paragraph - entity-description, on originalismQuote, Lead paragraph - entity-description, on originalism
Originalism is a legal theory in the United States which bases constitutional, judicial, and statutory interpretation of text on the original understanding at the time of its adoption.
1. Originalism (Wikipedia)
WikipediaBody: proponents section - origin-periodQuote, Body: proponents section - origin-period
Originalism was advocated most prominently by Justice Antonin Scalia, whose opinion in District of Columbia v. Heller (2008) became a defining-and divisive-statement of originalist reasoning.
1. Originalism (Wikipedia)
WikipediaIn Category: Doctrines, Category placement - in-categoryView the Source 1. Originalism (Wikipedia)
WikipediaIn Legal System: Law of the United States, Lead paragraph - in-legal-systemQuote, In Legal System: Law of the United States, Lead paragraph - in-legal-system
Originalism is a legal theory in the United States which bases constitutional, judicial, and statutory interpretation of text on the original understanding at the time of its adoption.
1. Originalism (Wikipedia)
WikipediaFormulated By: Robert Bork, History section - formulated-by borkView the Source 1. Originalism (Wikipedia)
WikipediaAssociated With: Antonin Scalia, Proponents section - associated-with scaliaView the Source 2. Living Constitution (Wikipedia)
WikipediaLead paragraph - cited for the rival living-constitutionalism positionQuote, Lead paragraph - cited for the rival living-constitutionalism position
The Living Constitution, or judicial pragmatism, is the viewpoint that the U.S. constitution holds a dynamic meaning even if the document is not formally amended.
2. Living Constitution (Wikipedia)
WikipediaContrast sentence - core-principleQuote, Contrast sentence - core-principle
The primary alternative to a living constitution theory is "originalism".
Dissenting Readings (1 dissenting reading)
Core Principle
Living constitutionalists reject the premise that a constitutional provision's meaning is fixed at adoption. They hold instead that the constitution deliberately uses broad, flexible language capable of developing alongside society's needs even without formal amendment, so that judges may read its guarantees in light of contemporary understanding rather than being bound to eighteenth-century practice.
A dissenting reading, from Living constitutionalist scholarship (judicial pragmatism), e.g. the tradition running from Oliver Wendell Holmes Jr.Living Constitution (Wikipedia), Wikipedia
Reader Challenges (0 open reader challenges)
No disputes yet. Spotted an error or a better source? Open the first one.
Sign in to dispute this or suggest a correction.
View At A Past Year
The atlas records no dated fact of its own for this entry, so there is no other year to choose.