Study On The Theory Of Originalism And Its Limitation

On June 26,2015,the U. S. Supreme Court confirmed the legalization of the same-sex marriage all over the nation in the case of Obergefell v. Hodges. It means that the theories of Originalism has been replaced by the theories of non-originalism gradually in the process of the constitutional interpretation. With the development of the society,the species and ranges of human rights have been enlarged,the desire to protect their fundamental rights has been become increasingly strong. However,using the method of originalism in constitutional interpretation simply can not satisfy the requirement. Meanwhile,due to the advantage and convenience of the theory of non-originalism, it has been widely used in the process of constitutional interpretation.The originalism is one of the most important theories of constitutional interpretation,it was used to against the prevalence of judicial activism initially and then been widely used in all areas. The failure to nominate Robert Bork as the Justice of the U.S. Supreme court in 1987,means that the originalism still took up the position of critics,but not the leader. Until John Roberts has been nominated as the chief Justice of the U.S. Supreme Court,the originalism began to be attached great importance in the process of constitutional interpretation. This essay base on the perspective of the legislation of the same-sex marriage,try to analyze the application of the originalism in the case of the same-sex marriage. In the early days,the judges often applied the originalism to confirm the constitutionality of the law which incriminate some same-sex acts. And then confirmed these laws unconstitutionality and overturned these judgments. Due to the acceptance of homosexuality,some states started to pass laws which involve the permission of the same-sex marriage. Through the application of the theory of non-originalism,the U.S. Supreme Court confirmed that the same-sex marriage is legal all over the nation.In the case of the same-sex marriage,the most disputed point between the originalism and the non-originalism is that,whether there exists “gay marriage rights”or not. The originalism hold the view that there does not exist an original meaning that involves gay marriage rights,according to the original intention of the framers of the Constitution,the justice can not infer the conclusion unduly,the justice should persist to the principle of judicial restraint. And this issue should be decided by the legislative institution. On the contrary,the theory of non-originalism hold the view that,considering all aspects,there exists the necessity to permit the gay marriage,the real issue which should be considered is that,whether there exists a reasonable reason to exclude those homosexual from legal marriage. Through the analysis of the fourteenth Amendment of the Constitution,confirm the legalization of the gay marriage is both legitimate and reasonable.There are four parts in this essay,in the first part,it mainly introduce the origin and the development of the theory of Originalism. Firstly,it limits the definition of “the origin meaning”as“constitutional interpretation by judicial organizations”. And then summarize the process of the application of Originalism in the judicial practice,to try to describe the development of the theory. Besides,through the analysis of the transformation of “the origin meaning”,to introduce different schools of the theories of Originalism. At last,it analyze three fundamental consensus propositions agreed by different schools.In the second part,describe the background of the case:Obergefell v. Hodges,through the summary of the human rights organization and the process of homosexual rights campaign,and the legislative process of the gay marriage in different states,try to offer an elaborate background of this case. In this part,it also includes the analysis of the judgment written by the justice Kennedy,and the analysis of the dissent written by the Chief Justice Roberts.In the third part,it concentrates on the analysis of the application of Originalism in the case of gay marriage. At first,it points out the most disputed issue is whether there exist a homosexual marriage right. Through the analysis of the Fourteenth Amendment of the Constitution,analyze the “due process clause”and the “equal protection clause”,try to make clear the meaning of “liberty”,and whether the Fourteenth Amendment could be used to support the homosexual marriage right.In the fourth part,it mainly analyze the transformation between the theory of Originalism and non-Originalism. In the early cases that concerned homosexual rights,the Judges often apply the method of Originalism to deny the request of homosexual rights,and confirm the constitutionality of the laws which regarded some homosexual acts as illegal. However,with the development of society and the gradually acceptance of homosexuality,the Judges began to use the theory of non-Originalism to support the request of homosexual rights. This part tries to analyze the reason of this transformation,and reveal the trouble that the theory of Originalism is facing.