According to Wikipedia, The term "originalism" has been most commonly used since the middle 1980s and was apparently coined by Paul Brest in The Misconceived Quest for the Original Understanding. It is often asserted that originalism is synonymous with strict constructionism.
Not surprisingly, that is controversial.
Justice Scalia differentiated the two by pointing out that,
unlike an originalist, a strict constructionist would not acknowledge
that he uses a cane means he walks with a cane (because,
strictly speaking, this is not what he uses a cane means). Scalia averred that he was "not a
strict constructionist, and no-one ought to be"; he goes further, calling
strict constructionism "a degraded form of textualism that brings the
whole philosophy into disrepute".
Strict construction requires a
judge to apply the text only as it is written. Once the court has a clear
meaning of the text, no further investigation is required. Judges—in this
view—should avoid drawing inferences from a statute or constitution and focus
only on the text itself. Justice Hugo Black (1886-1973) argued that the First Amendment's injunction, that Congress
shall make no law (against
certain civil rights), should be construed strictly: no law, thought Black, admits no exceptions. However,
"strict construction" is not a synonym for textualism or originalism. Antonin Scalia, a major proponent of originalism, said that "no one ought
to be" a strict constructionist.
The term often contrasts with
the phrase "judicial activism" (a characteristic of The Warren Court),
used to describe judges who seek to enact legislation through court rulings.
The Wikipedia article describe three Forms of Originalism
1. Original intent
a.
Problems
with intentionalism
2. Original meaning
a.
Semantic
originalism
3. Framework originalism
See the Wikipedia article for descriptions of the two "subforms". There may well be more when you look. Without going into more detail about originalism, let's switch to a comparison of the interpretations in the title.
Strict (Jefferson)
versus Broad (Hamilton) Interpretation
- Strict constructionists:
Congress should be allowed to exercise very few implied powers so that
government will remain small
- Broad constructionists:
Congress should be allowed to exercise many implied powers so that
government can take a greater role in shaping events
- Americans have disagreed about
this since the beginning; Jefferson (strict constructionist) vs. Hamilton
(broad constructionist) was first major political dispute in US history
Almost immediately following the creation of the
Constitution, the Founding Fathers split into two opposing camps over the
question of how loosely or strictly to interpret the Necessary and Proper
Clause.
One faction, the strict
constructionists, was led by Thomas Jefferson. Arguing that "that government is best which
governs least," the strict constructionists desired a small federal
government, one that would leave most power to the states and to the people.
Thus they argued that Congress should only be allowed to exercise those
expressed powers specifically listed in the Constitution, recognizing few or
any other implied powers as legitimate. Jefferson wanted to ensure that
government would charge few or no taxes, mostly leaving the people at liberty
to pursue their own objectives free from government interference. Only a very
strict reading of the Necessary and Proper Clause, he thought, would prevent
the government from giving itself more and more unnecessary power over
citizens' lives.
The other faction, the broad constructionists led by Alexander Hamilton, argued for a much more powerful federal government and a much broader reading of the Necessary and Proper Clause. Hamilton, unlike Jefferson, wanted to use the federal government to pursue an aggressive strategy of industrialization and economic development. Hamilton's vision called for the government to organize banks, build roads, and invest in other useful infrastructure, all in the interest of transforming the young United States from a country of farmers into a thriving economic powerhouse. But the Constitution did not expressly grant the government the power to do most of those things; only a liberal interpretation of the Necessary and Proper Clause would allow Hamilton's vision to be considered constitutional. Hamilton and the broad constructionists argued that the national interest could be best served by creating a powerful government able to exercise a wide variety of implied powers, all justified by a loose reading of "necessary and proper."
The argument that began with Jefferson and Hamilton split George
Washington's government, leading to the formation of the very first American
political parties—Jefferson's Democratic-Republicans opposing Hamilton's
Federalists. And the argument has continued, in one form or another, all the
way to the present. Should the government be large and strong, able to exercise
powerful influence over many areas of American life? Or should it stay small
and restrained, leaving the people free to manage their own affairs? Does the
Constitution require sharply limited government, or does it allow government to
gain broad new powers as needed to deal with new challenges as the world
changes?
It all depends on what your definition of "necessary and proper" is.
It all depends on what your definition of "necessary and proper" is.
The strict constructionists have won plenty of victories over
the years. Jefferson won the election of 1800 by promising to limit the size
and scope of government. The Supreme Court enforced a very narrow reading of
the commerce clause from the 1870s through 1937, blocking many federal attempts
to regulate economic activity. However, the general trend in American history
has been toward the broad constructionist view. In times of war, economic
upheaval, and other crises, most people have tended to favor granting the
government wide powers of action; over the decades, those gradual expansions of
power have led to a government much larger—and an interpretation of the
Necessary and Proper Clause much broader—than anything Jefferson or Hamilton
could have ever imagined.
Unfortunately, today one can find statements such as:
"Almost all of us now accept that the federal
government has a huge array of implied powers—powers to impose environmental
rules, labor regulations, educational policies, and a hundred other kinds of
interventions into American life, even though those powers are explicitly
mentioned nowhere in the Constitution. Perhaps our definition of 'necessary and proper' will change again in the future, but for now,
there seems to be a broad consensus in favor of broad constructionism among
most Americans."
http://www.shmoop.com/legislative-branch/strict-constructionism-broad-constructionism.html
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