“The term original intent refers to the notion that the judiciary should interpret the Constitution (including its amendments) in accordance with the understanding of its framers.” Original Intent | The First Amendment Encyclopedia.
In addition to the USA, which other countries follows this notion/doctrine ?
The Japan constitution hasn’t been ammended in 70 years since it was handed down to them by General MacAuther.
The US does not follow this doctrine. Occasionally, individual judges say they are following the doctrine although other commenters regularly accuse them not merely of false interpretation but of hypocrisy in not following the doctrine at other times, when doing so wouldn’t help their cause.
There must be many judges in many countries who use this as an excuse when it suits their purposes. However, that is the exact opposite of a country following this doctrine as an official policy.
I’d like to keep this thread to stay factual and would like a list of countries where “original intent” is followed (either completely or as one of the guiding modes) in interpreting the constitution.
“Original Intent” is listed as ONE of the modes of Constitutional Interpretation in the USA :
But what do you mean by “original intent”?
For example, when the Canadian Charter was being considered by Parliament, the Minister of Justice said that he could not predict how the equality clause would be interpreted, because it was broad and open-ended.
So when Canadian courts give broad and open-ended interpretations of the equality clause, is that an original intent approach?
This does not answer the OP’s question. It’s perfectly possible that, despite amendments to the text of the constitition, Japanese courts might not interpret it in the light of the 1947 intent but rather of a present-day understanding of its words.
Agreed, but I believe that it shows that they have not found it necessary to change or add to the original intent. The question itself appears ill defined as no one has provided any other possible examples because laws are always open to some sort of interpretation.
And Japan has actually reinterpeted their constitution to allow for the maintaining of a standing peacetime military force (defensive as it may be), something that for years was interpretated as not allowable.
So I withdraw my response.
Since you seem to be making a big list, I’ll offer Australia as another example similar to Canada where it is up to the Supreme Court as it is composed on the day to decide whether they want to make up their own minds, or be literal [‘black letter law’] or pretend to be psychic or be guided by the historical conventions and discussions as to what the drafters of the Constitution had in mind.
I’m not a lawyer so won’t be fussed if you want a proper take on it.
I’m trying to avoid pulling this into GD, but it seems to me that before the factual question can be answered, there is a need to define the concept of “original intent”. I think that’s very tricky.
For example, in Canada in the latter 19th century, the big issue was the balance of powers between the federal and provincial governments. Prime Minister Macdonald advocated for a very strong central government, with the provinces being glorified municipalities. Premier Mowat of Ontario argued that the provinces were equally sovereign to the federal government, within their assigned provincial powers.
The courts eventually ruled in favour of Mowat’s interpretation.
Now, Macdonald was one of the main drafters of the Quebec Resolutions which formed the basis for the Constitution. If the courts don’t accept his view, does that mean that Canada doesn’t follow original intent?
But, Mowat was also a delegate to the Quebec Conference, and also had a hand in the Quebec Resolutions. Does that mean that when the courts followed Mowat’s interpretation, they were applying original intent?
So you have two Fathers of Confederation, both participants at the key conference where the constitution was hammered out, taking fundamentally different views of the constitution. How does original intent deal with that issue? And, until we resolve that fundamental question of meaning, how can we answer the factual question posed by the OP, at least with respect to Canada?
That’s as much as I think I can say without hijacking it into GD. But: to answer a factual question, we need to have a working definition of the concept of original intent.
@Northern_Piper and mods - I am not an expert in this area, and am probably wrongly asking a FQ answer. Please move to GD as suggested.
No debate is framed, if it isn’t deemed an FQ thread, IMHO would be the other option.
Happy to move it to IMHO, if you wish.
Please do, thank you.
done.
It’s impossible to follow this doctrine. We lack both the time travel and the telepathy which this method would require to be valid. Nobody knows what the authors of the Constitution were thinking when they wrote the text over two hundred years ago.
Any time a judge strays from the text and bases a decision on what they claim is the original intent, they are just making things up.
As far as I can tell, no other country’s court system has embraced original intent. I did an online search and I couldn’t find any cite for it being invoked outside the United States.
Well the founders never meant for it to be a static document. They would be confused as to why we would even think that it was. They thought we were smart enough to figure it out.
And that is a doctrine of original intent, that the original intent was that it was not to be considered a static document.
There’s a couple of people wanna talk to you. They’re just the first in line.
This notion that the origins of our country and it’s primary governing document are somehow lost in the mists of ancient antiquity, as though written on clay tablets in some obscure dialect of ancient Babylonian that only a few select scholars can read and interpret for us today, is beyond ridiculous. There are journals and entire books written from the personal notes and minutes of the meeting of the Constitutional Convention explaining exactly what they were thinking, and meant.
So while the issue of the applicability of the original thoughts and intentions of the Constitutional Convention, and various Amendments, over the two-plus centuries of legal, social, and cultural evolution can be (and is) debated, the actual issue of their original intent is practically a library of open books.