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Originalism

Student’s Name

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Tutor’s Name

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Originalism

Originalism is the perspective regarding constitutional interpretation that mandates all

statements in the Constitution to be interpreted based on the initial understanding of the people at

the time it was ratified. Therefore, the concept considers the Constitution as stable from the time

of enactment with legislators only allowed to change its meaning by following procedures

outlined in Article Five. Originalism exists in stark contrast to the idea of the Living Constitution

which holds that the Constitution should be interpreted based on the current times, even if the

context differs from that of the original interpretations. Nevertheless, originalists seek to either

define the original intent or original meaning of the Constitution's framers.

Furman v. Georgia

The 1970s

The court held that the state death penalty (with Georgia as a dominant example) were

unconstitutional violations of the Eighth Amendment's limitation on "cruel and unusual"

punishments. Furthermore, most jurisdictions lacked rational and objective standards for when

the death penalty was appropriate. Judge Brennan interpreted the Bill of Rights as a guideline to

determine the compliance of punishments with human dignity, which the arbitrary application of

the death penalty did not. In response to the ruling, 35 states changed their sentencing guidelines

to increase objectivity and fairness in the process. However, in Greg's case, his sentencing was

later found to be Constitutional.

McCleskey v. Kemp

The 1980s
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In this case, the defense employed sociological jurisprudence to defend Warren McCleskey

because Georgia's sentencing practices were racist and had a disproportionate impact on African

American offenders. The defense argued that Georgia's courts applied the death penalty with

disproportionate frequency when black people were accused of killing white people which

represented a violation of equal protection provisions under the Eighth Amendment. A

subsequent review of Georgia's criminal justice system confirmed that the use of the death

penalty in the state relied on the races of the victim and accused. However, the federal district

court dismissed McCleskey's suit as he could not prove purposeful discrimination in his case.

Regents of the Univ. of Cal. v. Bakke

The 1970s

In this case, Bakke sued the school on grounds of discriminatory admission processes that

favored certain racial groups. The Supreme Court ruled that the use of racial “quotas” in school

admissions was unconstitutional but schools could employ affirmative action to admit additional

minority applicants. While the court ordered the admission of Bakke, it also established some AA

programs as constitutional when they aligned with government interests (such as positive

educational outcomes associated with student diversity), and when they were tailored

holistically.

Grutter v. Bollinger

The 2000s
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The court held that the use of race as a significant factor in school admissions policy does not

violate the Equal Protection Clause in the Fourteenth Amendment if such procedures are

specifically aimed at promoting student diversity and employ holistic processes during applicant

evaluation. Therefore, race only functioned as an extra during student evaluations rather than the

main trait. The Bakke decision has been cited as precedent for upholding affirmative action that

seeks reasonable goals. The appellate court also rejected the district court’s finding that the Law

School’s “critical mass” was functionally equivalent to a quota.

United States v. Virginia

The 1990s

The court held that the segregation of men from women in military training facilities without

adequate reason was a violation of the Equal Protection Clause of the Fourteenth Amendment

even if the women's facilities were comparable to the men's. Since the Virginia Military Institute

had failed to provide "exceedingly persuasive justification" for its sex-based admissions policy

that favored men while women would go to Virginia Women's Institute for Leadership (VWIL).

This ruling represented a milestone in ending gender segregation in the military unless it was to

serve national interests.

Conclusion

Since its founding, the US has grappled with issues of originalism and the interpretation of the

constitution. Multiple cases over the last century provide an adequate precedent that supports the

founder's original intent by considering the context in which a case is decided. Furman v.
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Georgia reinforced the necessity of maintaining human dignity even in sentencing criminals

through rational and fair processes. In Regents of the Univ. of Cal. v. Bakke, the court held that

the use of racial-based quota was constitutional as long as it helped to support larger societal

interests such as the positive effects of diversity in student bodies. The precedent was upheld in

Grutter v Bollinger which upheld the constitutionality of affirmative action policies meant to

improve equality for disenfranchised groups. However, the court noted that such policies must be

applied holistically, with the applicant's race being only one factor among many rather than the

dominant consideration.

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