So, at least in theory, Originalism as a doctrine of legal interpretation says "We should understand laws and constitutional provisions in a manner consistent with how they were applied and understood when they were originally written" When the second amendment protects the right to bear 'arms', we should try to understand what constitut…
So, at least in theory, Originalism as a doctrine of legal interpretation says "We should understand laws and constitutional provisions in a manner consistent with how they were applied and understood when they were originally written" When the second amendment protects the right to bear 'arms', we should try to understand what constituted 'arms' to the understanding of someone when the constitution was ratified in 1790, not necessarily what we would think of with the word. I'm only using a single word in a single amendment to illustrate, but Originalists claim that this method can encompass all of constitutional review.
Now, when the Bill of Rights were passed, the understood to be a restriction on the powers of the federal government and nothing else. That reading was blatantly stated in the 1833 case Barron vs Baltimore, but it reflects certain other understandings. For instance if you look at this https://undergod.procon.org/religion-in-the-original-13-colonies/
You can see that every single one of the original 13 states had an official, taxpayer funded, State Church. That is an absurdly obvious breach of the Establishment Clause of the 1st amendment banning the establishment of an official religion, and today it would be impermissible. But back then, nobody cared if a state or municipal government did something that violated the Bill of Rights unless there was a similar provision in that state's constitution or town charter or what have you.
Now, eventually, in 1925, you have a case Gitlow vs New York hit the Supreme Court. IIRC, it was someone raising 1st amendment protections after the state of New York arrested him for protesting WW1. But when it got appealed up to SCOTUS, you had a decision that the 1st amendment could be invoked to protect you against actions of a state government, using reasoning that hearkened back to the 14th amendment. Bit by bit more cases came forward and bit by bit, more of those protections found in the Bill of Rights were ruled to apply to actions taken by lower levels of government.
But you'll notice a long gap between 1790 and 1925. In fact, there's quite a big gap between 1925 and 1868, when the 14th amendment was ratified. (And it's an aside, but I want to mention that the basis for this "Incorporation" has been tied to the due process clause of the 14th amendment, every single case expanding Incorporation references this). And in between those two dates you have various court cases like Cruikshank vs U.S. or the Slaughter-house cases which affirm the original understanding of Barron v Baltimore; the Bill of Rights is nothing more than a restriction on the powers that the government in Washington holds.
An honest Originalist would look at this and say "You know, Incorporation was one of those judicial overreaches we hate and constantly rail against. We should put an end to it and go back to the days when it was only a restriction on the federal government." I have never heard an Originalist of any stripe actually say this, because it's completely insane and nobody would want the outcomes of effectively ending half of the constitutional protections. The personal conclusion I draw from this is that there is no such thing as an honest Originalist. It is ALWAYS a skew to try to get some sort of policy aim through the courts.
Minor correction: Only eight of the thirteen original colonies had established churches. Delaware, Rhode Island, Georgia, Pennsylvania, and New Jersey had none.
Adam, thank you for this explanation. It’s helpful to hear these histories about early interpretations of our constitution. I have personally felt this originalism mantra was skewed and applied in an outcome oriented way. Again thanks for taking the time for this important legal history lesson. Illuminating!
So, at least in theory, Originalism as a doctrine of legal interpretation says "We should understand laws and constitutional provisions in a manner consistent with how they were applied and understood when they were originally written" When the second amendment protects the right to bear 'arms', we should try to understand what constituted 'arms' to the understanding of someone when the constitution was ratified in 1790, not necessarily what we would think of with the word. I'm only using a single word in a single amendment to illustrate, but Originalists claim that this method can encompass all of constitutional review.
Now, when the Bill of Rights were passed, the understood to be a restriction on the powers of the federal government and nothing else. That reading was blatantly stated in the 1833 case Barron vs Baltimore, but it reflects certain other understandings. For instance if you look at this https://undergod.procon.org/religion-in-the-original-13-colonies/
You can see that every single one of the original 13 states had an official, taxpayer funded, State Church. That is an absurdly obvious breach of the Establishment Clause of the 1st amendment banning the establishment of an official religion, and today it would be impermissible. But back then, nobody cared if a state or municipal government did something that violated the Bill of Rights unless there was a similar provision in that state's constitution or town charter or what have you.
Now, eventually, in 1925, you have a case Gitlow vs New York hit the Supreme Court. IIRC, it was someone raising 1st amendment protections after the state of New York arrested him for protesting WW1. But when it got appealed up to SCOTUS, you had a decision that the 1st amendment could be invoked to protect you against actions of a state government, using reasoning that hearkened back to the 14th amendment. Bit by bit more cases came forward and bit by bit, more of those protections found in the Bill of Rights were ruled to apply to actions taken by lower levels of government.
But you'll notice a long gap between 1790 and 1925. In fact, there's quite a big gap between 1925 and 1868, when the 14th amendment was ratified. (And it's an aside, but I want to mention that the basis for this "Incorporation" has been tied to the due process clause of the 14th amendment, every single case expanding Incorporation references this). And in between those two dates you have various court cases like Cruikshank vs U.S. or the Slaughter-house cases which affirm the original understanding of Barron v Baltimore; the Bill of Rights is nothing more than a restriction on the powers that the government in Washington holds.
An honest Originalist would look at this and say "You know, Incorporation was one of those judicial overreaches we hate and constantly rail against. We should put an end to it and go back to the days when it was only a restriction on the federal government." I have never heard an Originalist of any stripe actually say this, because it's completely insane and nobody would want the outcomes of effectively ending half of the constitutional protections. The personal conclusion I draw from this is that there is no such thing as an honest Originalist. It is ALWAYS a skew to try to get some sort of policy aim through the courts.
Minor correction: Only eight of the thirteen original colonies had established churches. Delaware, Rhode Island, Georgia, Pennsylvania, and New Jersey had none.
Adam, thank you for this explanation. It’s helpful to hear these histories about early interpretations of our constitution. I have personally felt this originalism mantra was skewed and applied in an outcome oriented way. Again thanks for taking the time for this important legal history lesson. Illuminating!