Is an originalist approach to constitutional interpretation legitimate? (PDF)

Seminar paper from the year 2012 in the subject Politics - International Politics - Region: USA, grade: 77%, Birkbeck, University of London, course: American Politics, language: English, abstract: Under Article III, Section 2 of the United States Constitution, the US Supreme Court is designated as the final court of appeal for all cases arising under the Laws, Treaties, and Constitution of the United States (U.S. Const. art. III, § 2). Although the Supreme Court's role in determining the constitutional legitimacy of those cases brought before it is not explicitly defined, this (largely unchallenged) authority became clear during the foremost years of the republic. In his opinion on Marbury v. Madison (1803), Chief Justice Marshall noted that it was 'emphatically the province and duty of the Judicial Department to say what the law is.'
Constitutional interpretation addresses 'how the meaning of the constitution should be discerned, thus allowing the application of substantive constitutional law to a particular set of facts or issues' (Thomas, 2011:1). Given the ambiguity of its language and the fact that the Constitution is a legal document written, for the most part, in 1787 under very different circumstances from today, this is a challenging undertaking and not without controversy. Indeed, the task of constitutional interpretation, and the different approaches taken by individual judges, is a major area of debate among the judiciary, the populace, and within the political and academic arenas.
The position judges adopt vis-à-vis constitutional interpretation lies at the centre of court rulings concerning constitutional law. Since individual judges will have different opinions, constitutional interpretation is unavoidably dependent on the subjective views of the judges involved, whether they be legalistic, attitudinal, or other views along Posner's spectrum of theoretical influences on judicial behaviour (Posner, 2008). This difference in approaches has been the driver of the politicisation of the judiciary and partly explains the often fractious nature of judicial confirmations.
While there is no consensus regarding a singular taxonomy for constitutional interpretation, most scholars agree on the differentiation between the Originalist approach (sometimes referred to, supportively, as the Interpretivist approach) favoured by Supreme Court Justice Antonin Scalia, and other non-Originalist approaches (often referred to as non-Interpretivist approaches by their detractors).
This essay considers whether the Originalist approach is the only legitimate and appropriate method of constitutional interpretation in the United States today.