Question

Positives and negatives of originalism

Answer 1

Cons:     If one is then to look at the interpretation (or, meaning), which inheres at the particular time period, the question becomes: why is that reading the essential one?

Legal controversy rarely arises over constitutional text with uncontroversial interpretations.  

It could be argued (as, for example, Justice Breyer has) that constitutions are meant to endure over time, and in order to do so, their interpretation must therefore be more flexible and responsive to changing circumstances than the amendment process.

Originalists often argue that, where a constitution is silent, judges should not read rights into it (i.e. a textualist interpretation).

Originalism allows the dead hand of prior generations to control important contemporary issues to an extraordinary and unnecessary level of detail.

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.

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.

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.

Originalism deters judges from unfettered discretion to inject their personal values into constitutional 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.

If a constitution as interpreted can truly be changed at the decree of a judge, then "the Constitution… is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please," said Thomas Jefferson. Hence, the purpose of the constitution would be defeated, and there would be no reason to have one.

Sometimes the Ninth Amendment is cited as an example by originalism critics to attack originalism.

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.

If the people come to believe that the constitution is not a text like other texts

Hope This Helps!!!

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Answer 2

Originalism is based on the principle that it is not for the judiciary to create, amend or reject laws. This is a function of the Legislature. The function of the Judiciary is to declare the constitutionality or not of the laws, according to the original intent of the constitutional text and its amendments.

The positive point is that the originialism prevents the judges from interpreting a constitutional concept based on their personal values. In this way originalism guarantees that the judiciary will judge constitutional concepts impartially.

The negative point of originalism is that the judge interprets the constitutional text in its image and likeness, but the Judiciary can not be a positive legislator. That way, if the people come to the conclusion that the constitutional text needs to be changed, the people will have to look for the Congress, which is the representative of the population, not a magistrate, who has gone through a selection.