Stevens states that the jurisprudence of original intent has changed from being focused on "the motivation of lawmakers" to being focused on "the understanding of readers of newly enacted legal text".
But a focus on either misses the point for "it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." The text, not the motivation detemines the law and "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils."
Issues arise before the court today that are outside of the scope of the original intent of either the lawmakers or the population at the time.
"That is why a jurisprudence of original intent cannot provide the correct answer to novel questions of constitutional law ...."
2023-09-25: Stevens Originalism and History 2014
Table of Contents
- Meese's comments on original intent are somewhat ambiguous. As I read his speech, he seemed to place more emphasis on the motivation of lawmakers than on the community's understanding of recently enacted laws. (692)
- Over the years, however, I believe scholars advocating adherence to a jurisprudence of original intent have given more attention to the understanding of readers of newly enacted legal text than to the motivation of the authors of the text.
- Second Amendment .... the text merely responded to the States' narrow concern about possible federal disarmament of state militias rather than to a broader interest in protecting an unmentioned individual interest in using guns for purposes of self-defense. (692) [Witness seizure of militia stores at Williamsburg VA 1775-04-21 and failed seizure at Concord 1775-04-19]
- In other words, I applied what I think of as the original version of the jurisprudence of original intent rather than the more modern version. (693)
- ... I shall identify some of the problems associated with the use of history when interpreting legal text, .... (693)
- My conclusions are twofold: first, history is at best an inexact field of study, particularly when employed by judges; second, the doctrine of original intent may identify a floor that includes some of a rule's coverage, but it is never a sufficient basis for defining the ceiling. (693)
- [examples of shortcomings in our knowledge of history: Rufus Bullock, Governor of Georgia; voter suppression in the South 1876]
- When areas of uncertainty apply to the work of the most disinterested and best qualified historians, lawyers, and judges who are not specially trained in that field must exercise caution whenever they are asked to apply a so-called jurisprudence of original intent to the process of interpreting the Constitution. (698) [One example is a history by Rehnquist!?]
- In his opinion for a unanimous Court, Justice Scalia wrote: "As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." (699)
- A study of the original intent of legal draftsmen, or the original understanding of the relevant community, will identify the principal evil that gave rise to a new rule, but countless rules go well beyond the specific evil that was the proximate cause of their enactment. (699)
- It is for that reason that a jurisprudence of original intent [of the lawmakers], though always relevant and important, can play only a limited role in the Court's adjudication of constitutional issues. (699)
- Although the fact that non-Christians such as atheists and Jews are members of the class protected by the Establishment Clause may not have occurred to its draftsmen, it is the meaning of that law, rather than the principal concerns [original intent] of its draftsmen described in the Rehnquist dissent by which we are governed. (701)
- A study of the original intent of the framers of the Fourteenth Amendment will not identify an interest in desegregating public schools as one of their principal concerns. Much of our jurisprudence interpreting that rule [Equal Protection] concerns issues unrelated to the principal concerns of its draftsmen. (701)
- Much of our jurisprudence interpreting that rule concerns issues unrelated to the principal concerns of its draftsmen. That is why a jurisprudence of original intent cannot provide the correct answer to novel questions of constitutional law-questions such as whether the duty to govern impartially curtails a state's power to prohibit same-sex marriages cannot be answered by historians, or by judges who limit the scope of their inquiry to a study of history. (702)
- A study of what earlier students and leaders have had to say about an issue will inform the judgment that the Court must make, but will not dictate the answer. (702)
- I am more troubled, however, by the majority's failure to apply the rule against racial gerrymanders to political gerrymanders. Tolerating that invidious practice cannot be justified even by using a jurisprudence of original intent to search for the principal concerns of our lawmakers. If, instead, we correctly define the duty to govern impartially, we would put an end to a practice that neither scholars, legislators, nor judges even attempt to defend. (702)