Introduction
Originality is a philosophy that is associated with interpretation. It has been used since the 1980s after being coined by Paul Brest. In this case, originality can be termed as a hypothesis of explanation and interpretation. Originality is a theory that tends to shy away from construction. Basically, this philosophy is coined into two theories which include the original intent theory and the original meaning theory. According to the original intent theory, there ought to be consistency in a written constitution, this is in relation to what was intended initially by the initial writers (Locke, 1990, p.82).
To understand the intention, one has to study the writings so as to have a prior idea. The original meaning theory suggests that people should always make reasonable decisions regarding a constitution. This should be based on what those people who are living at that time see as the correct meaning of the laws. There is also an opposing law which is known as the common law. This law was developed in 1890 and it suggests that decisions must be carried out at the judicial level. This paper aims to discuss the philosophy of originalism and one opposing philosophy of constitutional interpretation. In addition, the paper will look at a particular philosophy and defend it well.
Philosophy of Originalism
According to the constitution of America, originalism is commonly referred to as a theory with some specific interpretations (Edward, 2007, p.94). This principle of originalism states that the judiciary should not be given the task of creating laws. Instead, the judiciary is only supposed to uphold laws within a country. It also tries to discover the original meanings and not give out interpretations that are foreign to the original intention of the authors. Furthermore, the philosophy of originalism suggests that a constitution is supposed to be interpreted by the people who created it (Currie, 2004, p. 112). In so doing, citizens of a country must therefore make reasonable decisions while interpreting the constitution.
The opposing philosophy of constitutional interpretation
The common law as an opposing philosophy of the constitution is where the state has a major role in making a decision (Currie, 2004, p. 70). Unlike the philosophy of originalism, this law suggests that decisions regarding a constitution must be made at the judiciary level. Here the law is developed by the judges in the process of making decisions in courts or tribunals. Decisions, therefore, are made according to the stipulated laws that govern the judiciary.
Discussion
In relation to the two philosophies, it is clear that a constitution can be affected either positively or negatively. Preferably, the decisions surrounding a constitution should be made by those people who composed it. Although the judiciary is an important arm of the government, it must not be entitled to make all decisions of a constitution. Locke argues that composers are supposed to make a reasonable judgment when addressing constitutional issues (Locke, 1990, p.47). Originalism is also based on the fact that nature allows men to freely undertake their daily activities. In other words, the philosophy of originalism is narrowed down to human nature which gives man his freedom to talk, move or perform other activities (Edward, 2007, p.54). Using the philosophy of originalism, people are therefore entitled to the freedom of making their own decisions. According to the principle of nature, all citizens are equal and can integrate in order to create a new constitution. Because of this reason, a constitution is supposed to be created by citizens of a country but not by the judiciary (Locke, 1990, p.101). The opposing view has a weakness since it seeks to recognize a country’s judiciary at the expense of its citizens. Naturally, people have their own views and so they should make decisions concerning the constitution.
Originalism is good for a country because, in the long run, it stops judges from inserting their personal interpretations into the constitution. In addition to these, it can maintain a country’s sovereignty as no one will try to interfere with the original work that was done by the original authors. Through Originalism, predictability will be possible and this will protect the citizens against unexpected changes in trying to interpret the constitution.
Conclusion
Creating a constitution is a critical issue since it involves matters that affect the citizens of a country. In this case, citizens should always make their own decisions when addressing constitutional issues. However, their decisions must be reasonable and not just for the sake of it. In relation to the two philosophies, it is clear that a constitution can be affected either positively or negatively depending on how one looks at them. Preferably, the decisions surrounding a constitution should be made by those people who composed it so as not to expose it to different opinions and interpretations that can distort it.
Unlike the philosophy of Originalism where the basis is on the original work of the author, common law suggests that decisions regarding a constitution must be made at the judiciary level.
Works Cited
- Currie D. (2004).The Constitution of the United States: A primer for the people. London: The University of Chicago Press.
- Edward, P. (2007).Originalism, federalism and the American constitutional enterprise: A historical inquiry. New Haven: Yale University Press.
- Locke, J & Macpherson C. (1990).Second treaties of government. US: Macpherson.