Originalism Part I


Originalism is in its simplest terms, reading a text, any text, looking for and sticking to the meaning that the writer had in her/his head when it was originally written. Pretty simple idea, actually. When applied to a way of approaching the Constitution, it has been defined as, “a legal philosophy that the words in documents and especially the U.S. Constitution should be interpreted as they were understood at the time they were written.” (Miriam Webster) No real difference from Non-constitutional originalism, really.

It seems that reading and understanding some older documents is fairly straight forward and simple. Let’s look at the “Emoluments Clause” in Article I Section 9 Clause 8 of the US Constitution.

“And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. “ What did they mean? Firstly, that is the exact question we should first ask – what did the writers mean when they wrote it? Mostly it is understandable in plain English. What are “emoluments”? While this word is not commonly used, it is a word used today to mean, “profit, salary, or fees from office or employment; compensation for services” according to Dictionary.com. If one chooses, you can do a deep dive study into the history of the word and its usage in other documents at or before Oct. 1780 to see if had alternate meaning back there.

So, what we are asking is, “what specifically were the writers of the constitution guarding against?” for a good discussion on this go to: https://www.law.cornell.edu/wex/emoluments_clause. The Supreme Court has never had a case before it on the question of the meaning of the emoluments clause, so we are left to speculate and defend our position. It seems safe to say that the framers of the constitution did not want elected or appointed Senators or Representatives to make money for foreign Kings or Princes, or receive money from foreign states while holding office – without consent of of Congress. But even if it seems safe to say that, the way our system works is that truly only the Supreme Court gets to say what it means. We can speculate, but only they can legally declare it so.

What if the minds of U.S. citizens changed over time and they decided that in fact it was fine that this happened. How would they make such a thing possible? Well, they could try and take a case to the Supreme Court and convince them that the original meaning of the constitution was such that it did not prevent officials from getting money this way. That would be a tough sell, but they could try. If the court rejected the argument or the case, there are two other options. They could amending the constitution in either of the two ways (it has been tried before) that are set forth in the constitution. For a good read on how that is done, see the following: https://www.thoughtco.com/how-to-amend-the-constitution-3368310.

For the rest of us, we write stuff and we read stuff and expect that others will take up the meaning that we laid down and vice versa. We should respect each other enough to attribute to them the skill of saying what they mean and saying it in a way that is understandable.

Stay tuned for Part II


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For His Glory,


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