Constitutional Interpretation
In this essay I will try to explain and critique the two dominant methods of constitutional interpretation. Which are originalism and non-originalism. I will do this by taking help from “How to Read the Constitution” by Christopher Wolfe, and different source’s from Internet. I will start by giving what Wolfe says originalism is, and then I will give some background to other ways to interpret the constitution, and the founders and interpretation and I will finish up with my view on originalism and non-originalism and the critics to that.
Wolfe on Originalism
Wolfe says that originalism is a two-fold doctrine. First, it holds that the constitution is generally intelligible and with effort its meaning can be understood, its meaning is not simply and inevitable in the eye of the beholder. Second, it holds that in the absence of a clear meaning- since language cannot be perfect and the framers did not intend to provide rules for all possible future circumstances - the condition for the exercise of judicial review do not exist. The second aspect of originalism is derived from reflection on the foundations of judicial review. Judicial review is an implication of the constitution, fairly read, but it is an implication with a definite from: judges should prefer the constitution to act that is incompatible with it.
The Founders and Interpretation
Christopher Wolfe says that the difference of interpretation arise not from the application of different rules but from different conclusions drawn from applications of the same rules, he says that when he has this in his mind: The disagreement that quickly arose on important issues of interpretation that the appearance of general agreement ...
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...ion to keep it current.
Critics of Originalism
The judge own values may get in the way, epistemological, historical. We cannot know today in 1999 what the framers intended in 1789. We don’t have accurate historical document (material) representing political problems. Can we accurate apply original problems that the framers saw today, they couldn’t for example imagine that we would have something like Internet and how free speech would apply to that? We should Hamilton and Jefferson rule us from the grave. How does we know that what the framers intended and what the ratifiers understood the constitution to be, was the same.
Critics of Non- Originalism
What qualifies the judge to determine what is best for America? We should the courts making the law, when it is the Congress job to do that. The job of the Supreme Court is to promote justice.
Originalism, an orthodox principle of legal interpretation, focuses on interpretation pursuant to the original understanding of constitutional words . This incorporates arguments from the ‘text, context, purpose and structure of the constitution’. The originalist method of constitutional in...
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According to Sergio Fabbrini, "`Constitutionalism' means a set of procedures and principles used, in a given society and at a given historical period, to define the nature of the supreme law of the land (which constitution?), to promote the strategy of limitation of public powers (for which polity?) and to select the authors of the constitutional plan (which constitution making process?) (Pennock & Chapman 1979)." The following pages will examine this concept in the light of both American and European constitutionalism, by explaining the US constitution making process, giving examples, and comparing and contrasting between America and Europe.
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