When most people think about the history of the United States legal system, they think about things that happened in the past century or so. However, if we go back further into American history, we see that there were several watershed moments that led to the way the legal system is today. One of these watershed moments was the rise of originalism and textualism in the 1980s. This movement transformed jurisprudence in the United States' courts, especially at the federal level. The law and economics movement has also played a significant role in influencing the way lawyers and judges think. The law and economics approach has also changed the way in which judges decide cases before them.
It is important to understand the different approaches to constitutional interpretation before discussing how originalism and textualism became so popular. There are three main approaches to constitutional interpretation: originalism, living Constitutionalism, and textualism.
Originalism
Originalism is a legal theory that holds that the meaning of a legal text should be based on the intent of the original authors of that text. Under this theory, judges should interpret the law according to the understanding of those who wrote it, not according to their own personal views or what they believe the law should be. Proponents of originalism argue that it provides a more stable and predictable basis for legal interpretation than other approaches, such as textualism or living constitutionalism.
Originalism in the United States is the belief that the Constitution should be interpreted in a way that is consistent with the original intent of the Framers. This approach relies heavily on historical sources, such as The Federalist Papers, to determine what the Framers meant when they drafted the Constitution.
Living Constitutionalism
Living Constitutionalism is the belief that the Constitution should be interpreted in a way that reflects the changing needs of society. Proponents of this approach believe that the Constitution is a living document that should evolve as society changes.
Historically, the Constitution was understood to be a document that set forth certain fundamental principles that would guide the nation. However, over time, the interpretation of the Constitution has become more flexible, and there is now a school of thought known as "living constitutionalism" that holds that the Constitution should be interpreted in light of changing times and social values.
There are a few key ideas behind living constitutionalism. First, it is held that the Constitution is not a static document, but rather one that can evolve over time. Second, living constitutionalists believe that it is important to look at the history and intention behind each provision of the Constitution in order to better understand its meaning and to adapt its meaning to the times, so say, if those congresspeople who wrote and passed the Fourteenth Amendment intended it to ensure equal treatment to formerly enslaved person, to adapt the Amendment to our times would mean treating the Amendment as intending that all formerly oppressed persons be protected by the Fourteenth Amendment's Equal Protection Clause. Finally, living constitutionalists maintain that it is necessary to consider the impact of constitutional interpretation on society as a whole.
Textualism
Textualism is a legal theory that holds that the meaning of a legal text should be based on the plain meaning of the words used in that text. Proponents of textualism argue that this approach provides greater clarity and predictability than other approaches, such as living constitutionalism.
In the United States, textualism is often associated with "originalism," or the belief that the Constitution should be interpreted in a way that is consistent with the original intent of the Framers. However, there are important differences between these two approaches. Textualists believe that the meaning of a legal text should be based solely on the plain meaning of the words used in that text, without reference to the intent of the drafters or the historical context surrounding the text.
There are a few key ideas behind textualism. First, textualists believe that the meaning of a legal text should be based solely on the plain meaning of the words used in that text. Second, textualists argue that this approach provides greater clarity and predictability than other approaches. Finally, textualists maintain that this approach is more objective than other approaches, such as living constitutionalism.
The Law and Economics Movement
The law and economics movement has also played a significant role in influencing the way lawyers and judges think. The law and economics approach has also changed the way in which judges decide cases before them.
Law and economics is the application of economic analysis to the law. The law and economics movement began in the early 20th century, but it gained popularity in the 1970s and 1980s.
The key idea behind law and economics is that economic analysis can be used to understand and predict human behavior. This approach has been applied to a wide range of legal issues, such as antitrust law, contract law, property law, and tort law.
Law and economics has had a significant impact on the way courts decide cases. In particular, courts have begun to use economic analysis to assess whether a particular legal rule is efficient or not. If a court finds that a rule is inefficient, it will often strike down that rule.
Conclusion
The watershed moments in the history of jurisprudence have led to significant changes in the way that lawyers and judges think about law. Originalism and textualism have transformed how courts decide cases, while the law and economics movement has had a significant impact on how judges approach legal reasoning. These movements are indicative of the ways in which American jurisprudence is constantly changing and evolving to meet new challenges.