1answer.
Ask question
Login Signup
Ask question
All categories
  • English
  • Mathematics
  • Social Studies
  • Business
  • History
  • Health
  • Geography
  • Biology
  • Physics
  • Chemistry
  • Computers and Technology
  • Arts
  • World Languages
  • Spanish
  • French
  • German
  • Advanced Placement (AP)
  • SAT
  • Medicine
  • Law
  • Engineering
balu736 [363]
3 years ago
5

Define Originalism. What are the negatives and positives of Originalism?

History
1 answer:
andre [41]3 years ago
6 0

Answer:

hey Emana! i hope this will help you!

Explanation:

In the context of United States law, originalism is a concept regarding the interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding of the authors or the people at the time it was ratified.  

Pros and cons

Pros

• If a constitution no longer meets the exigencies of a society's "evolving standard of decency", and the people wish to amend or replace the document, there is nothing stopping them from doing so in the manner which was envisioned by the drafters: through the amendment process. The Living Constitution approach would thus only be valuable in the absence of an amendment process.

• Originalism deters judges from unfettered discretion to inject their personal values into constitutional interpretation. Before one can reject originalism, one must find another criterion for determining the meaning of a provision, lest the "opinion of this Court [rest] so obviously upon nothing however the personal views of its members". Scalia has averred that "there is no other" criterion to constrain judicial interpretation.  

• Originalism helps ensure predictability and protects against arbitrary changes in the interpretation of a constitution; to reject originalism implicitly repudiates the theoretical underpinning of another theory of stability in the law, stare decisis.

• Contrary to critics of originalism, originalists do not always agree upon an answer to a constitutional question, nor is there any requirement that they have to. There is room for disagreement as to what original meaning was, and even more as to how that original meaning applies to the situation before the court. But the originalist at least knows what he is looking for: the original meaning of the text. Usually, that is easy to discern and simple to apply.  

Cons

• Legal controversy rarely arises over constitutional text with uncontroversial interpretations. How, then, does one determine the original "meaning" of an originally broad and ambiguous phrase? Thus, originalists often conceal their choice between levels of generality or possible alternative meanings as required by the original meaning when there is considerable room for disagreement.

• Originalism allows the dead hand of prior generations to control important contemporary issues to an extraordinary and unnecessary level of detail. While everyone agrees that broad constitutional principles should control, if the question is whether abortion is a fundamental right, why should past centuries-old intentions be controlling? The originalist's distinction between original meaning and original intention here is unclear due to the difficulty of discussing meaning in terms of specific details that the Constitutional text does not clarify.

• In writing such a broad phrase such as "cruel and unusual", it is considered implausible by some that the framers intended for its very specific meaning at that time to be permanently controlling. The purpose of phrases such as "cruel and unusual," rather, is specifically not to specify which punishments are forbidden, but to create a flexible test that can be applied over future centuries. Stated alternatively, there is no reason to think the framers have a privileged position in making this determination of what is cruel and unusual; while their ban on cruel punishment is binding on us, their understanding of the scope of the concept "cruel" need not be.

• If applied scrupulously, originalism requires the country either to continually reratify the Constitution in order to retain contemporary standards for tests such as "cruel and unusual punishment" or "unreasonable searches and seizures," or to change the language to specifically state that these tests shall be administered according to the standards of the society administering the test. Critics of originalism believe that the first approach is too burdensome, while the second is already inherently implied.

You might be interested in
What is the political Center​
loris [4]

in politics, centrism -the center- is a political outlook that involves acceptance, or support of a balance of social equality.

5 0
3 years ago
The Vietnam War took place on a peninsula south of China known as Indochina. Which country is NOT a part of Indochina? (use the
Tresset [83]

Answer:

Indonesia

Explanation:

3 0
3 years ago
How did the rule of Francois "Papa Doc" Duvalier impact Haiti?
Nataly [62]
Many Haitians left the country to escape abuses and poor economic conditions.
8 0
2 years ago
Read 2 more answers
Why is horizontal integration important?
alina1380 [7]

Answer: Horizontal integration is important because it grows the company in size, increases product differentiation, achieves economies of scale, reduces competition and can access new markets. When many firms pursue this strategy in the same industry, it leads to industry consolidation which makes the companies stronger and more solid and even monopoly- which isn't the best for consumers but is really good for the sellers.

8 0
2 years ago
Question 4 of 5
Lera25 [3.4K]

Answer:

Republican district

Explanation:

because it is a conservative district

4 0
2 years ago
Read 2 more answers
Other questions:
  • Peter and Catherine The Great both instituted a lot of changes into Russian society. What is one that they both failed to accomp
    13·1 answer
  • The Articles of Confederation were written by
    6·1 answer
  • True or False : The republican radicals in congress disagreed with both Lincoln's and Johnson's reconstruction plans because the
    15·2 answers
  • Which of the following marked the end of the Spanish-American War?
    15·1 answer
  • What would make young people excited to vote?
    11·1 answer
  • How do you think dividing Germany into four parts affected Germans and those countries occupying the territory
    10·1 answer
  • In this close-up of a vase, what is the circled image suppose to represent in abstract form?
    15·2 answers
  • Read this quotation by Thomas Jefferson from a debate about the national bank. To take a single step beyond the boundaries thus
    12·2 answers
  • I need a REAL story about a missing person from the past they could be famous I don't care.
    7·1 answer
  • Where did englands explorations in North America largely take place
    5·1 answer
Add answer
Login
Not registered? Fast signup
Signup
Login Signup
Ask question!