4
In his article entitled “The New Originalism”, Professor Whittington said that
“Originalism regards the discoverable meaning of the Constitution at the time of its initial
adoption as authoritative for purposes of constitutional interpretation in the present”.
(“The New Originalism”,1)
Originalisim, as Professor Whittington pointed out, “has a long history”. (“The
New Originalism”,1) Thomas Jefferson advocated originalism. In a letter to William
Johnson, dated June 12, 1823, Jefferson said:
On every question of construction (of the Constitution) let us carry
ourselves back to the time when the Constitution was adopted, recollect
the spirit manifested in the debates, and instead of trying what meaning
may be squeezed out of the text, or invented against it, conform to the
probable one in which it was passed.
5
As vilified in history as Chief Justice Roger B. Taney has been because of his
opinion in Dred Scott v. Sandford in 1856, he applied an originalist interpretation to the
Constitution in that case. In the Dred Scott opinion, he reasoned that:
It is not the province of the court to decide upon the justice or injustice,
the policy or impolicy, of these laws. The decision of that question
belonged to the political or law-making power; to those who formed the
sovereignty and framed the Constitution. The duty of the court is, to
interpret the instrument they have framed, with the best lights we can
obtain on the subject, and to administer it as we find it, according to its
true intent and meaning when it was adopted.
6
William Whiting, a solicitor for the War Department under President Lincoln, in his
War Powers under the Constitution, published in 1864, in describing how the Constitution
should be interpreted, said:
The question as to the meaning of the constitution depends upon what the
people, the plain people who adopted it, intended and meant at the time of its
adoption. (138)
Convention