Original understanding

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In United States constitutional law, original understanding is one of several approaches to interpretation. It is usually seen as a basic supplement or complement to original intent in U.S. constitutional law. Where original intent deals with the writings and recorded speech of the Framers themselves, original understanding deals with the deliberations of the state conventions that ratified the Constitution.

The understandings are most associated with deliberations between the Philadelphia Convention that proposed the Constitution in 1787, to its ratification in 1789, and the ratification of tbe Bill of Rights in 1791. The Anti-Federalist Papers were also major arguments in these discussions. [1] Robert Bork disagreed with the entire approach, writing
It is asserted...that the judicial philosophy of original understanding is fatally defective in any number of respects. If that were so, if the Constitution cannot be law that binds judges, there would remain only one democratically legitimate solution: judicial supremacy, the power of the courts to invalidate Statutes and executive actions in the name of the Constitution, would have to be abandoned. For the choice would then be either rule by judges according to their own desires or rule by the people according to theirs.[2]

John Yoo examines this and other doctrines in a manner that maximizes Presidential authority. [3]

References

  1. Jon Roland (28 May 2001), Original understanding and interpretive doctrines, Constitution.org
  2. Robert H. Bork (1991), The Tempting of America, Sinclair-Stevenson Ltd, ISBN 978-1856190329
  3. John Yoo (2005), The Powers of War and Peace: the Constitution and Foreign Affairs since 9/11, University of Chicago, ISBN 0226960315, pp. xviii-ix