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Originalism is a method for interpreting law by enforcing what the text meant to the people who originally wrote it.

Following originalism rights are adjusted to the current values of people by passing laws, which seems to be reasonable in practice. However from what I've read of it the Constitution is very broad. It rarely dives into specifics but rather gives a high level statement, seemingly to be carried out by legislation and the judicial process.

For example "cruel and unusual" in the 8th amendment. Justice Anthony Scalia, one of the biggest proponents of originalism, stated that the death penalty wasn't included under it because it was legal at the time the text was written. Under originalism modern society needs to amend the Constitution if it wants to include the death penalty or anything else under "cruel and unusual".

Do proponents of originalism suggest the new amendment use the phrase "cruel and unusual" but with the understanding that those words now mean something different? Or that it specifically call out the death penalty and everything else?

I wonder because the former would be strange and possibly confusing, and the latter greatly restricts amendments by not allowing them to paint with a broad stroke as the original text did.

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The actual method of amending the Constition is spelled out in Article V – originalism would reject the position that there are other ways to amend it. We can see the result in the ratified amendments. Originalism is a theory of interpretation, not a theory of drafting, and it hold that the words of the law, be it the Constitution or a particular statute, are to be understood as would be understood by people originally. (There are numerous versions of originalism, so one can't be more precise than than until you decide whether you mean original understanding or original intent, the latter now being a minority viewpoint). It does not hold that new laws should be drafted in the language as it existed in the 18th century, as indeed they are not. Thus the 26th Amendment is written in contemporary style befitting the fact that it was drafted recently, and the 27th Amendment is written in older style befitting the fact that it was drafted in 1789.

As for "changing values", each ratified amendment represents some change of values, whereby originally a right was not recognized (or was), and by the amendment, that value changes. The 18th Amendment represents on change in values, and the 21st reflects a change in that value, though not back to the status quo.

  • And some interpretations of originalism hold that the original meaning of some clauses explicitly direct us to read those clauses in the context of our time. "Cruel and unusual" from the 8th, and "reasonable" from the 4th, for example. See William Baude's paper: "Is Originalism Our Law". – K-C Apr 12 '17 at 4:57
  • @K-C That's interesting. My question actually comes from Justice Anthony Scalia saying the opposite. That the death penalty isn't covered by "cruel and unusual" punishment because at the time it was written all of the states had the death penalty so they clearly didn't intend for it to be included. cnn.com/videos/tv/2016/02/13/… – JonK Apr 12 '17 at 11:40
  • My wording might have been poor. I'm not questioning the process that would be used to amend the Constitution but what the amendment text would actually be in practice. – JonK Apr 12 '17 at 11:45
  • That article is really interesting as a case-study in conceptual jelly-to-a-tree, see section I(B)(4). – user6726 Apr 12 '17 at 15:17

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