Dena Asfour
Professor Buchman
POL 500
October 12, 2017
2. Justice Antonin Scalia, in A Matter of Interpretation, and Justice Stephen Breyer, in Active Liberty, offer conflicting visions as to how legal texts should be interpreted. First, explain the key points on which the two approaches conflict. Then, select any two issue areas Breyer discusses in the “Applications” section and explain how each justice’s approach might lead to a different interpretations of the constitutional provisions at issue.
Justice Antonin Scalia. The United States constitution is widely considered to be a living working document. That since its creation on July 4th, 1776 including the bill or rights have been in place to allow for a proper functioning government.
Scalia makes a valid point that the laws as well as amendments that we have needs to be understood the way our founding fathers understood them when they were creating the constitution. I get the sense that Justice Antonin Scalia is a conservative on the aspect that he wants amendments and laws to be treated as they were when they were originally created. That Justice Scalia values the traditional aspect of the laws and wants to leave them as they are and not create and or give new meaning to them. When Scalia says, “Judges, should be interpreters, not lawmakers” from his standpoint it makes sense because the nine supreme court justices that we currently have, are present to uphold the law of the land and that is it. They are there to maintain that the government and that the general public are adhering to the statues and precedents that are in place for our safety as well as our
Justice Scalia once said, “ To be a textualist in good standing, one need not be too dull to perceive the broader social purposes that a statue is designed, or could be designed; or too hide-bound to realize that new times require new laws” and that being said you get the sense that Justice Scalia favored leaving texts of law as they were. To ask one to interpret the laws and amendments for what they are and not dissect and relate them to ones mind is a challenge in its self. I appreciate the fact that Justice Scalia is able to interpret and understand the constitution but it seems like a hard task to
The court case of Marbury v. Madison (1803) is credited and widely believed to be the creator of the “unprecedented” concept of Judicial Review. John Marshall, the Supreme Court Justice at the time, is lionized as a pioneer of Constitutional justice, but, in the past, was never really recognized as so. What needs to be clarified is that nothing in history is truly unprecedented, and Marbury v. Madison’s modern glorification is merely a product of years of disagreements on the validity of judicial review, fueled by court cases like Eakin v. Raub; John Marshall was also never really recognized in the past as the creator of judicial review, as shown in the case of Dred Scott v. Sanford.
Conservative jurisprudence can be understood as an agenda of conserving existing conditions, upholding restricted rights in cases concerning individual, society, and sexual liberty interests in order to retain in its traditional style as similar in the past as possible whereas liberal jurisprudence place itself with a constitutional theory that expand individual rights. By applying these ideologies in the interpretation of the legislation, it can be said that conservatives will interpret the text as a rulebook to be followed strictly as possible and they are able to justify employing the narrowest level of generality in their analyses of
... “inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice”? (Hamilton.Jay.Madison 105) With an end reminding us of the tough qualifications judicial offices must have met to get into office. “Hence it is that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the station of judges.” (Hamilton.Jay.Madison 106)
1. Does the Supreme Court have the responsibility to interpret the constitutionality of a case, that is brought up for review as it is presented at its face value, or should it consider the ultimate impact that it could have ...
was Burger, and he reaffirmed that “it is emphatically the province and duty of the judicial department to say what the law is.” The Supreme Court is the superior symbol of the U.S. law, so it has duties to protect the justice t...
Judicial Tyranny was a very thought-provoking read and even though the reader may agree with Mr. Sutherland’s view point, a rational thinker must admit that he and his colleagues do the very same thing they accuse the federal courts are doing - forcing their beliefs and opinions (court rulings) on the reader. It can be reasonably argued that some of the statements written were just as radical and antagonistic as it accused the judiciary of being. Even though I may agree with most of what was written, as an unbiased reader I have to admit that the work was presumptive and does not fully address other important issues concerning the federal court system.
Justice Thomas agreed with Justice Scalia’s analysis and, join his opinion, however wrote separately, to reiterate the rule: that unless the Congress explicitly states (otherwise), “the court interprets a statutory term in accordance with its natural meaning.” FDIC v. Meyer, 510 U. S. 471, 476 (1994)5. Thus, in absence of a congressional directive to the contrary, “shall” must be construed as a mandatory command. Justice Thomas states that “If the Congress wants the Court to give “shall” a nonmandatory meaning, it must explicitly state that by specifying the consequences for noncompliance or explicitly defining the term “shall” to mean something other than a mandatory directive by choosing words that carry such meaning; ‘should’, ‘preferably,’
This type of interpretation to cases can potentially be detrimental to whole of society. In some cases, the pragmatic dissenting opinion would be the most logical ruling because it would be the least harmful to the greatest number of people, since it would look at all of the potential outcomes when deciding on a case. One case in particular that corresponds with this is Lochner v New York. This case was ruling on if the New York Bake Shop Act- setting a maximum work hour limit for bakers- was in violation of liberty to contract. The majority rule of the Supreme Court ruled that this act was in fact unconstitutional because it violated the 14th amendments due process clause by interfering with right for an employer and employee -who are on equal footing- to negotiate and create their own contracts. The Court believed it is given liberty for an employee and employer to do this by themselves without interference. It was also concluded that the job of a baker had no heath risks or dangers involved, which is not true. This ruling is not following the fundamental beliefs of the Constitution because it is disregarding the protection of people in the bakery work force. The justices with the majority opinion overlook the problem that without any guidelines set in place, employers can take advantage of
The U.S. constitution is the foundation of our national government. On September 17, 1787 it was signed by the delegates at the Constitutional Convention in Philadelphia. ("The U.S. Constitution") By signing this, the Constitution replaced the first national governing document called the Articles of Confederation. Before it could be passed, it had to be ratified by nine of the thirteen states. Soon after the constitution was finally ratified, in 1791 the government decided to add the Bill of Rights to the Constitution. (Bill of Rights of the United States of America (1791)) After the Constitution was written, many of the great delegates or "framers" called it a miracle.
In today 's world, there are a lot of hot topics in the world of politics and social standings. Some that have been issues for decades. A great example is gun control that can be traced back to the 1939 case of "US vs Miller" that dealt with the where the line was drawn for the 2nd amendment. Some, however, are debates that have sparked up more recently like cell phone privacy. Regardless, many of these cases that are talked about so much today can be traced back to court cases dating back to 1857. All of them hold something in common, the fact that they attempt to most perfectly define the writing of the constitution. All Supreme Court decisions try their best to balance the two sides of a cases: Individual rights and the common good of everyone.
Hall, Kermit L, eds. The Oxford guide to United States Supreme Court decisions New York: Oxford University Press, 1999.
The Constitution has been around for 228 years since the ratification, which is a long time. Times are very different now as compared to those, many years ago. Today, the world is different in so many aspects such as technological and medical advances, population growth, and minorities rising. These are things that the founding fathers would have never thought to be possible. So nowadays, the Supreme Court has to interpret the Constitution a lot more to be able to decide on subject matters because they have a hard time relating today’s problems to back then. For instance, the Third Amendment which states that citizens will not be forced into providing their home as shelter to the soldiers is not really useful today because it was created for
Constitutional interpretation is the principle job of the Judicial branch, and citizens have a variety of earnest beliefs based off of the document as well. There were several incidents where Hennessey’s own opinions were present in his writing. While discussing the Second Amendment, he states, “ So, if “people” have the right to bear arms, government has the power to impose fair qualifications on that right” (p.95). I don’t have to disagree with this assertion to know that readers deserve to learn from unbiased materials. This is a fierce issue in our government, and many people contend that Second Amendment rights are absolute and should not be infringed upon. Other times, Hennessy presents both sides of an issue like whether the Constitution is a “living document” that changes as time passes, or what Textualists believe, which is that the constitution should be accepted exactly as it is written. The value of reading the
Columbia Law Review, 104, 1-20. doi:10.2307/4099343. Reynolds, S. (2009). The 'Standard'. An interview with Justice Ruth Bader Ginsburg.
views as to whether or not Judicial review, and the Supreme Court as a whole,