originalism vs living constitution pros and cons originalism vs living constitution pros and cons

The common law is a system built not on an authoritative, foundational, quasi-sacred text like the Constitution. Of course, the living constitutionalists have some good arguments on their side. Intersectionality: Strengths & Weaknesses, Strengths and Weaknesses of the World Bank, Strengths and Weaknesses of the supreme Law of the Land, Strengths and Weaknesses of Reason as a Way of Knowing, Strengths and Weaknesses of American Democracy, What does Kings Speech i have a Dream Mean. of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare . Originalism is an attempt to understand and apply the words of the Constitution as they were intended. The common law approach requires judges and lawyers to be-judges and lawyers. Scalia maintained decades-long friendships with stalwart living constitutionalists who vehemently disagreed with his interpretive methods. [9] Swindle, supra note 1. [13] Morrison v. Olson, 487 U.S. 654, 697 (1988). And instead of recognizing this flaw, originalism provides cover for significant judicial misadventures. It is a jurisprudence that cares about committing and limiting to each organ of government the proper ambit of its responsibilities. He accused living constitutionalism of being a chameleon jurisprudence, changing color and form in each era. Instead, he called for a manner of interpreting the Constitution based on its original language: in other words, originalism. v. Sebelius, 567 U.S. 519, 519 (2012). The command theory, though, isn't the only way to think about law. [20] Griswold v. Connecticut, 381 U.S. 479, 483 (1963) (noting that the Supreme Court utilized different Amendments in the Constiution to guarantee a right to privacy). . Originalism, as applied to the controversial provisions of our Constitution, is shot through with indeterminacy-resulting from, among other things, the problems of ascertaining the original understandings and of applying those understandings to the modern world once they've been ascertained. The best way to understand textualismand how it differs from a strict constructionists hyper-literal readingis through a case example Justice Scalia once presented: The statute at issue provided for an increased jail term if, during and in relation to (a) drug trafficking crime, the defendant uses a firearm. The defendant in this case had sought to purchase a quantity of cocaine; and what he had offered to give in exchange for the cocaine was an unloaded firearm, which he showed to the drug-seller. at 2595 (highlighting Justice Kennedys use of change in marriage over time which is a key componenent of a Living Constitutionalists interpretation). Second, the historical meaning of the text has legal significance and is authoritative in most circumstances. A nonoriginalist may take the texts historical meaning as a relevant data point in interpreting the demands of the Constitution, but other considerations, like social justice or contemporary values, might overcome it. Am. Living constitutionalists believe the meaning of the Constitution is fluid, and the task of the interpreter is to apply that meaning to specific situations to accommodate cultural changes. And it seems to work best if the Constitution is treated as a document with stable principles, ideals, and guidelines. 1. It is quite another to be commanded by people who assembled in the late eighteenth century. But because it is legitimate to make judgments of fairness and policy, in a common law system those judgments can be openly avowed and defended, and therefore can be openly criticized. [I]t is just not realistic to expect the cumbersome amendment process to keep up with these changes. 13. The phrase uses a gun fairly connoted use of a gun for what guns are normally used for, that is, as a weapon. [10] Aaron Blake, Neil Gorsuch, Antonin Scalia and Originalism, Explained, Wash. Post (Feb. 1, 2017) www.washingtonpost.com/news/the-fix/wp/2017/02/01/neil-gorsuch-antonin-scalia-and-originalism-explained/?utm_term=.2b4561514335 (illustrating that Justice Scalia is commonly associated with Originalism and Textualism; Textualism falls under Originalism). 6. In any well-functioning legal system, most potential cases do not even get to court, because the law is so clear that people do not dispute it, and that is true of common law systems, too. Read More. The current debates are generally either conceptual or normative: The conceptual debates focus "on the nature of interpretation and on the nature of constitutional authority." Originalists rely on an intuition that the original meaning of a document is its real [] Justice Scalias expansive reading of the Equal Protection Clause is almost certainly not what it was originally understood to mean, and Scalias characterization of Justice Harlans dissent in Plessy is arguably contradicted by Justice Harlans other opinions. The difference between them is one of scope, not philosophy: Originalism specifically refers to interpreting the Constitution based on the meaning the words carried at the time of writing, whereas textualism refers to interpreting all legal texts by the ordinary meaning of the text, setting aside factors not in the text itself. I imagine that the debate between originalism and living constitutionalism will get some attention during the confirmation of Judge Amy Coney Barrett, because originalism appears to be at the core of Judge Barretts judicial philosophy. For an originalist, the command was issued when a provision became part of the Constitution, and our unequivocal obligation is to follow that command. But when a case involves the Constitution, the text routinely gets no attention. Give me your paper requirements and I connect you to an academic expert. But for the originalist, changes must occur through the formal amendment process that the Constitution itself defines. Living Constitution Sees the the constitution we having a dynamic meaning. In the face of that indeterminacy, it will be difficult for any judge to sideline his or her strongly held views about the underlying issue. This Essay advances a metalinguistic proposal for classifying theories as originalist or living constitutionalist and suggests that some constitutional theories are hybrids, combining elements of both theories. If we want to determine what the Constitution requires, we have to examine what the People did: what words did they adopt, and what did they understand themselves to be doing when they adopted those provisions. J. L. & Liberty 494, 497 (2009). In other words, living constitutionalists believe the languageand therefore, the principles that language representsof the Constitution must be interpreted in light of culture. Those who look at the Constitution similarly to other legal documents or a contract, are often times called or refer to themselves as originalists or strict constructionists. First, Scalia pointed out that one important purpose in having a constitution in the first place is to embed certain rights in such a manner that future generations cannot readily take them away. Scalia then explained how living constitutionalism defeats this purpose: If the courts are free to write the Constitution anew, they will write it the way the majority wants; the appointment and confirmation process will see to that. Present-day interpreters may contribute to the evolution-but only by continuing the evolution, not by ignoring what exists and starting anew. Its liberal detractors may claim that it is just a . It is modest because it doesnt claim to rewrite the Constitution with grand pronouncements or faddish social theories. Justice John Marshall Harlan took this position in his powerful (and thoroughly originalist) dissent in Plessy v. Ferguson. It is an act of intellectual hubris to think that you know better than that accumulated wisdom. so practical in itself, and intended for such practical purposes, a matter which requires experience, and even more experience than any person can gain in his whole life, . It can be amended, but the amendment process is very difficult. The originalism versus living Constitution controversy arose in the early 20th Century. Because of this evolving interpretation is necessary to avoid the problems of applying outdated views of modern times. Don't we have a Constitution? There is a variation of this theory wherein we ratify the Constitution every time we vote, or least when we decide not to vote with our feet by moving elsewhere. Originalists often argue that where a constitution is silent, judges should not read rights into it. Where the precedents leave off, or are unclear or ambiguous, the opinion will make arguments about fairness or good policy: why one result makes more sense than another, why a different ruling would be harmful to some important interest. But there is unquestionably something to the Burkean arguments. Originalist believe in separation of powers and that originalist constitutional interpretation will reduce the likelihood of unelected judges taking the power of those who are elected by the people, the legislature. It is just some gauzy ideas that appeal to the judges who happen to be in power at a particular time and that they impose on the rest of us. As the most well-known advocate of originalism, Justice Scalias thoughts on Brown are also worth mentioning. Reasoning from precedent, with occasional resort to basic notions of fairness and policy, is what judges and lawyers do. 1111 East 60th Street, Chicago, Illinois 60637 Hi! Originalism. Seventy-five years of false notes and minor . If a constitution no longer meets the exigencies of a society's evolving standard of decency, and the people wish to amend or replace the document, there is nothing stopping them from doing so in the manner which was envisioned by the drafters: through the amendment process. Originalists think that the best way to interpret the Constitution is to determine how the Framers intended the Constitution to be interpreted. Originalism helps ensure predictability and protects against arbitrary changes in the interpretation of a constitution; to reject originalism implicitly repudiates the theoretical underpinning of another theory of stability in the law, stare decisis. But even more noteworthy than his staunch philosophical convictions is the way he engaged with his ideological opponents. When originalism was first proposed as a better alternative to living constitutionalism, it was described in terms of the original intention of the Founders. One is original intent that says we should interpret the Constitution based on what its drafters originally intended when they wrote it. started to discuss the "original intent" of the nation's founders and proposed that the Supreme Court adopt "originalism" when interpreting the Constitution. What are the rules about overturning precedents? Legal systems are now too complex and esoteric to be regarded as society-wide customs. Our written Constitution, the document under glass in the National Archives, was adopted 220 years ago. These attitudes, taken together, make up a kind of ideology of the common law. It comes instead from the law's evolutionary origins and its general acceptability to successive generations. Both versions of originalismoriginal intent and original meaningcontend that the Constitution has permanent, static meaning thats baked into the text. The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. One of the main potential advantages of living constitutionalism is the possibility that it can facilitate societal progress. Why should judges decide cases based on a centuries-old Constitution, as opposed to some more modern views of the relationship between government and its people? Be careful, this sample is accessible to everyone. But it does mean giving consideration to what the words and phrases in the text meant when a particular constitutional provision was adopted. You can order an original essay written according to your instructions.