Not all originalists are intentionalists. But all intentionalists are originalists. And certainly many originalists are intentionalists, for the impulses that lead scholars to embrace originalism in constitutional and statutory interpretation also often incline them to give it an intentionalist turn. Those who defend some form of originalism typically do so because they believe that the rule of law requires the past to rule the present. Some originalists take this thesis to be a conceptual truism: law is not law at all if those who are charged with its application can alter its scope or meaning by bringing to its interpretation things foreign to it at the time of its enactment. Other originalists take the bonds between originalism and the rule of law to be of a moral sort: the values that lie behind the rule of law – liberty, fairness, and equality – are best protected by interpreting laws in a manner that does not permit their meaning to change with time. Finally, some would cast their defence of originalism in political terms, arguing that democracy demands a separation between rule-making and adjudicative powers – a separation that makes it a judicial usurpation of the role of the lawmaker to interpret an enactment in ways that depart from its past meaning.All of these arguments for originalism have been advanced, as well, for intentionalism, and many intentionalists would insist that a theory of interpretation that appeals to authorial intentions best honors the reasons for defending originalism. While they must admit that originalists might appeal, instead, to authorial values, or to the mental states possessed by the original audience to an enactment, they commonly insist that intentionalist interpretation best protects against the sort of “judicial legislation” that threatens the values of liberty, fairness, and equality. Thus, while originalism and intentionalism are distinct, their marriage is so common as to make an inquiry into the one a useful means of gaining the measure of the other.
ASJC Scopus subject areas
- Arts and Humanities(all)