Original meaning refers to a legal theory of constitutional interpretation, which holds that the US Constitution should be interpreted consistent with what its words would have meant to a reasonable man 1700s America. The theory, sometimes referred to as “originalism,” also relies on historical evidence to determine the meaning of particular words at the time they were used. Originalism is in opposition to the concept of a “living Constitution,” in which the meanings of the words in the Constitution change over time as society changes. It is also different from original intent theory of constitutional interpretation, which looks to what the Framers would have intended the words to mean.
Originalism looks not at what the Framers would have intended words to mean, but what an ordinary citizen of reasonable intelligence would have understood them to mean at the time they were written. Phrases in the Bill of Rights like “the right to bear arms,” "freedom of speech," or “cruel and unusual punishment” must be looked at in their historical context. In particular, current events, articles, and opinions of the time are relevant to an interpretation of the original meaning of the words.
For instance, with regard to the phrase “cruel and unusual punishment,” originalism does not look at the contemporary meaning of that phrase, as might a living Constitution interpretation. Additionally, originalism would not examine the Framers’ intent to determine the original meaning of the phrase. A particular type of punishment could be considered cruel and unusual even if the Framers had never considered it, as long as a reasonable person in the historical context of 1700s America could have thought it to be so.
Similarly, as it regards free speech, early constitutional cases treated verbal statements and symbolic acts the same. That this was the original meaning of “freedom of speech,” originalists note, was determined in large part from historical events surrounding the drafting of the Constitution. Many colonists participated in political protests which involved such things as burning flags, laws, and effigies of government officials. Often public gatherings were disguised political protests in which symbols and secret signs were used instead of words.
In situations where the Constitution is silent on a subject, originalism holds that the Ninth Amendment allows states to handle any issue that the Constitution does not address or prohibit. Further, matters that the Constitution does not speak to should not be decided by the Supreme Court. Any expansion of the scope of the Constitution should come through a constitutional amendment as provided under Article V of the Constitution. Under the provisions of Article V, an amendment must be approved by three-fourths of the states, demonstrating a consensus among the people after time for debate and deliberation.
