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In the context of United States constitutional interpretation, originalism is a principle of interpretation that views the Constitution's meaning as fixed as of the time of enactment. The originalist enterprise, then, is a quest to determine the meaning of the utterances, the meaning of which cannot change except through formal amendment.〔(B. Boyce, "Originalism and the Fourteenth Amendment", 33 ''Wake Forest L. Rev.'' 909 )〕 The term originated in the 1980s〔Brest, Paul. (1980). ''The Misconceived Quest for the Original Understanding''. Boston University Law Review, 60, 204–238.〕 but the concept resonates with formalist theory and is a special example of textualism. Today, originalism is popular among some political conservatives in the U.S., and is most prominently associated with Antonin Scalia, Clarence Thomas, and Robert Bork. However, some liberals, such as Justice Hugo Black and Akhil Amar, have also subscribed to the theory. Originalism is an umbrella term for interpretative methods that hold to the "fixation thesis"—the notion that an utterance's semantic content is fixed at the time it is uttered.〔(L. Solum, "Semantic Originalism", ''Illinois Public Law Research Paper '' No. 07-24 )〕 There are two broad source of meaning that originalists seek: * The ''original intent theory,'' which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it. This is currently a minority view among originalists. *The ''original meaning theory,'' which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be. It is this view with which most originalists, such as Justice Scalia, are associated. These theories share the view that there is an identifiable original intent or original meaning, contemporaneous with a constitution's or statute's ratification, which should govern its subsequent interpretation. The divisions between these theories relate to what exactly that identifiable original intent or original meaning is: the intentions of the authors or the ratifiers, the original meaning of the text, a combination of the two, or the original meaning of the text but not its expected application. ==Originalism and strict constructionism== Bret Boyce described the origins of the term ''originalist'' as follows: The term "originalism" has been most commonly used since the middle 1980s and was apparently coined by Paul Brest in ''The Misconceived Quest for the Original Understanding''.〔 It is often asserted that ''originalism'' is synonymous with ''strict constructionism''.〔(The University of Chicago, The Law School ) "I am not a strict constructionist, and no one ought to be."〕〔(Can Bush Deliver a Conservative Supreme Court? By JEFFREY ROSEN )〕〔(Jurist.Law.Pitt.Edu )〕〔(Who Would Bush Appoint to the Supreme Court? )〕 Both theories are associated with textualist and formalist schools of thought, but there are pronounced differences between them. Justice Scalia differentiates the two by pointing out that, unlike an originalist, a strict constructionist would not acknowledge that ''he uses a cane'' means ''he walks with a cane'' (because, strictly speaking, this is not what ''he uses a cane'' means).〔See ''Smith v. United States'', (508 U.S. 223 ) (1993)〕 Scalia has averred that he is "not a strict constructionist, and no-one ought to be"; he goes further, calling strict constructionism "a degraded form of textualism that brings the whole philosophy into disrepute".〔A. Scalia, ''A Matter of Interpretation'', ISBN 978-0-691-00400-6, Amy Guttman ed. 1997, at p.23.〕 Originalism is a theory of ''interpretation'', not ''(construction )''.〔Barnett, ''(The Original Meaning of the Commerce Clause )''〕 However, this distinction between "interpretation" and "construction" is controversial and is rejected by many nonoriginalists as artificial. As Scalia has said, "the Constitution, or any text, should be interpreted ()either strictly ()or sloppily; it should be interpreted reasonably"; once originalism has told a Judge what the provision of the Constitution means, they are bound by that meaning—but the business of Judging is not simply to know what the text means (interpretation), but to take the law's necessarily general provisions and apply them to the specifics of a given case or controversy (construction). In many cases, the meaning might be so specific that no discretion is permissible, but in many cases, it is still before the Judge to say what a reasonable interpretation might be. A judge could, therefore, be both an originalist ''and'' a strict constructionist—but he is not one by virtue of being the other. To put the difference more explicitly, both schools take the plain meaning of the text as their starting point, but have different approaches that can best be illustrated with a fictitious example. Suppose that the Constitution contained (which it obviously does not) a provision that a person may not be "''subjected to the punishments of hanging by the neck, beheading, stoning, pressing, or execution by firing squad''". A strict constructionist might interpret that clause to mean that the ''specific'' punishments mentioned above were unconstitutional, but that other forms of capital punishment were permissible. For a strict constructionist, the specific, strict reading of the text is the beginning and end of the inquiry. For an originalist, however, the text is the ''beginning'' of the inquiry, and two originalists might reach very different results, not only from the strict constructionist, but from each other. "Originalists can reach different results in the same case" (''see'' What originalism is not—originalism is not always an answer in and of itself, ''infra''); one originalist might look at the context in which the clause was written, and might discover that the punishments listed in the clause were the ''only'' forms of capital punishment in use at that time, and the only forms of capital punishment that had ''ever'' been used at the time of ratification. An originalist might therefore conclude that capital punishment ''in general'', including those methods for it invented since ratification, such as the electric chair, are ''not'' constitutional. Another originalist may look at the text and see that the writers created a list. He would assume that the authors intended this to be an exhaustive list of objectionable executions. Otherwise, they would have banned capital punishment as a whole, instead of listing specific means of punishment. He would rule that other forms of execution ''are'' constitutional. Note that originalists would agree that, if the original meaning of the text could be ascertained, that meaning governs. Where they disagree, as in this example, is about exactly how to find that meaning. For example, any originalist or even a strict constructionist might apply the canon of construction ''expressio unius est exclusio alterius'', which presumes that when an author includes one example he intends to exclude others. If that canon is appropriate in the example here, all originalist interpreters would likely reach the same result. Contrast this with a "living constitutional" interpretation, which might find that, although the text itself only prohibits certain methods, those methods are examples of particularly unpleasant methods of execution; therefore, the text invites modern readers to extend its principle to those forms of punishment we ''now'' find particularly unpleasant. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Originalism」の詳細全文を読む スポンサード リンク
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