The original intent theory is also referred to as originalism, or internationalism. Original intent is implemented by several judges in situations where they are required to apply the Judicial Review authority in an ongoing legal case. The judicial review power is the federal courts and state power to review and validate laws passed to law by the executive and legislative branches of the government but goes against the constitutional principle. While some lawyers use the theory of original intent, and a significant number of adherents do not apply it faithfully and uniformly. The lawyers who make an effort to apply the original intent theory agree that it is only through its use that courts are bound by the law and not what is desirable in their own views (Barton 2011, 25). These lawyers also come to the agreement that the courts need to apply the original intent to protect the democracy of representation that the federal Constitution created.
According to the originalists, the democracy brought forth by the American Constitution is represented by three major issues; (a) Bill of Rights, (b) Separation of Powers, and (c) Federalism. The Constitution further separates the federal government powers into three main branches, which help promote an accountable system. Article I of the American Constitution bestows the power to make laws to the legislative branch, constituting of two Congress houses. This law-creating power gives the authority to the Congress and the power to pass laws reflecting on the value of their voters, normally comprising of a majority and plurality of the grownups living in the home state of the representatives. In a situation where an elected law maker creates or supports a policy that is not consistent with the values of the voters, there are chances the leader could possibly not make it back to the office in the next general election (Higgs 2002, 13). The voters will make a replacement with who they feel would support their values through policy and simultaneously respect their electoral will. Congress has been created to be accountable to the Americans in this system, people who the originalists believe are the highest source of authority where the American Constitution retrieves its legitimacy.
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The Executive Branch of the constitution is also held to account by American citizens at the voting ballot. After every 4 years, the American citizens are given a special chance to elect a leader through a vote, who will be their president ( Whittington 1999, 45 ). Americans usually vote for a person they believe represents their societal, economic, and personal interests regarding numerous issues, including the health, economy, taxes, and rights protection.
Article II of the Constitution gives authority to the American President to append his or her sign to the congressional acts that gives an approval and vetoing others, allowing the executive to have an influence on country’s policy (Garraty 2009, 65-66). The American President may also have an influence the country’s policy through promulgating the executive decrees intended to implement federal law, constitutional provision or a treaty.
Article III bestows federal authority to the American Supreme Court and to additional federal courts created by the Congress- inferior courts. Unlike the members of Congress and the President, the federal judges are not accountable to the American electorate. After the federal judges are appointed by the President to the bench and confirmed by the Senate, they hold the office for a lifetime, unless the individual judge retires or removed from office for ‘bribery, treason, or misdemeanors and high crimes’ (U.S. Const. art. II, § 4). Even though Article III of the Constitution don’t grant judicial review powers, in the case of MARBURY V. MADISON, the Supreme Court made a ruling that it is entirely the work of the federal “judiciary to interpret the meaning of law” by finding solutions to operations of congregational legislation that is conflicting with the paramount American constitutional law (Danoff and Herbert 2011, 45). Marbury, as a result, emphasized the conventional roles of the court as the oracle of the law; it, however, gave small guidance regarding how the courts need to interpret and implement the specific provisions.
The originalists try to give a clear path. The originalists presents the argument that interpretation of the constitution, whether legal or not legal, involves a way of ‘communication.’ Where ‘the writer looks to have a conversation with the reader’, and the interpretation of the Constitution is not different. This is justified by the fact that it involves the efforts by the judges, to have an understanding of the constitutional meaning as is portrayed by the ratifiers and framers who wrote it. Therefore, according to originalists, the court judges who do not apply the original intent approach to interpretation changes the courts into just naked organs without functionality.
The originalists further agree that the judges deviating from the initial meaning of the Constitutional provision get replaced the constitutional interpretation with individual sympathies, and reasonableness notions ( Meese 1988, 11 ). Where the court judges replace personal choices for the written options in the Constitution, the federal courts transform to being super-legislators that are making decisions in regards to personal will of the court judges and not as provided in the law that is meant to guide the land (Day-Brite Lighting v. Missouri, [1952]).
As such, originators further argue that judges legislating from the bench are violating the separation of powers as provided in the constitution by making new laws instead of making interpretations of the law and using it appropriately. The judges further violate the principle of federalism, an essential aspects of the American constitutional democracy. Under the principles, the curt needs to find a balance between the federal government and the sovereign state.
References
Barton, D. (2011). Original Intent: The Courts, the Constitution, and Religion. Aledo, Texas, WallBuilders. ISBN: 9781932225631.
Danoff, B. & Herbert, L. J. (2011). Alexis de Tocqueville and the Art of Democratic Statesmanship. Lantham, MD: Lexington Books. ISBN: 9780739145319
Garraty, J. A., (editor). (2009). Quarrels That Have Shaped The Constitution. New York:Harper- Perennial. ISBN: 9780061320842.
Higgs, R. (2012). Crisis and Leviathan: Critical Episodes in the Growth of American Government. (Independent Studies in Political Economy) 25th Anniversary Edition. ISBN: 9781598131215.
Meese III, E. (1988). Toward a Jurisprudence of Original Intent. Harv. JL & Pub. Pol'y , 11 , 5.
Whittington, K. E. (1999). Constitutional interpretation: Textual meaning, original intent, and judicial review.
