Minimal Extrapolation Non-Originalism

My Judicial Philosophy: Minimal Extrapolation Non-Originalism

The two main prevailing legal philosophies when it comes to constitutional interpretation are originalism and non-originalism. Originalists believe in interpreting the constitution based directly on the framers’ intent when writing it and other Amendments while non-originalists view the Constitution in the context of the time it is applied, referring back to the spirit of the framers’ intent, not the intent itself. Both these ideologies alone are seriously flawed and no one would ever argue that historical intent alone or modern context and consequences alone would lead to smart legal opinions.

The intent of the Second Amendment, for example, was derived from the Lockean ideals

But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right... We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”

Even he recognized that blatant originalism truly doesn’t work.

Simultaneously, non-originalism can run into the problem of over-extrapolation and judicial legislation, a power the framers specifically did not want the Judicial Branch to have. In Federalist Paper 78, Alexander Hamilton explains how the Judiciary is the least dangerous and powerful branch of government:

“Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the

One clear example of over-extrapolation is in Griswold v. Connecticut(1965) which secured a woman’s right to contraception as an issue of privacy. In this case, the court concluded seven to two that although the Constitution doesn’t explicitly state a right to privacy, it is implied in the spirit of the constitution by other Amendments such as the Self-Incrimination Clause in the Fifth Amendment: “nor shall be compelled in any criminal case to be a witness against himself,” the Freedom of Association Clause in the First Amendment: “or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances,” and the Due Process Clause of the Fourteenth Amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” While Griswold v. Connecticut may have resulted in a more progressive and pleasing result and was a win for personal freedoms, the Supreme Court over-extrapolated, creating a “fundamental right” that didn’t exist from legal basing or precedent, even if it was in line with the classical liberal ideals of the framers.

While over-extrapolation can lead to unconstitutional judicial legislation, at times extrapolation is necessary to protect the Constitution