题目内容

The importance of the Bill of Rights in twentieth-century United States law and politics has led some historians to search for the original meaning" of its most controversial clauses. This approach, known as "originalism, " presumes that each right codified in the Bill of Rights had an independent history that can be studied in isolation from the histories of other rights, and its proponents ask how formulations of the Bill of Rights in 1791 reflected developments in specific areas of legal thinking at that time. Legal and constitutional historians, for example, have found originalism especially useful in the study of provisions of the Bill of rights that were innovative by eighteenth-century standards, such as the Fourth Amendment`s broadly termed protection against "unreasonable searches and seizures." Recent calls in the legal and political arena for a return to a "jurisprudence of original intention. "however, have made it a matter of much more than purely scholarly interest when originalists insist that a clause's true meaning was fixed at the moment of its adoption, or maintain that only those rights explicitly mentioned in the United States Constitution deserve constitutional recognition and protection. These two claims seemingly lend support to the notion that an interpreter must apply fixed definitions of a fixed number of rights to contemporary issues, for the claims imply that the central problem of rights in the Revolutionary era was to precisely identify, enumerate, and define those rights that Americans felt were crucial to protecting their liberty.

Both claims, however, are questionable from the perspective of a strictly historical inquiry, however sensible they may seem from the vantage point of contemporary jurisprudence. Even though originalists are correct in claiming that the search for original meaning is inherently historical, historians would not normally seek to determine exactly what a specific clause or right meant when the Bill of Rights was adopted in 1791, because historians would not normally feel compelled to support attempts to make that "original meaning" binding today. The strictly historical purpose for an inquiry into the original meaning of specific rights would be to determine why a particular clause was adopted and to establish a baseline from which its subsequent evolution could be traced and evaluated.

Because of its proponents' pressing need to find determinate meaning at a fixed historical moment, originalism cannot capture everything that was dynamic and creative-thus uncertain and problematic-in Revolutionary constitutionalism, nor can it easily accommodate the diversity of views that explains why the debates of the Revolutionary era were so lively. A strictly historical approach, on the other hand. makes it clear that the framers and ratifiers of the Bill of Rights were struggling with complex questions, the novelty of which had carried them away from the received wisdom of their time and was forcing their ideas about rights and the protection of those rights to continually evolve.