The reading The Judiciary: How Should It Interpret Our Constitution? consists of two essays written by Justice Antonin Scalia and Justice Stephen Breyer. Scalia explains why we should interpret the constitution based on how our founding fathers intended it to be executed. On the other hand, Breyer points out the flaws in Scalia’s point of view and then develops his claim that a living constitution is much more favorable. Both these judges present arguments for what is considered a heavily debatable topic regarding our government. Scalia’s essay Textualism and the Constitution explores the theme of Textualism, which is a method of interpretation where the plain text of a statute is used to determine the meaning of the legislation without delving …show more content…
Breyer believes it is important to have a democratic theme run throughout an interpretation, since a judge’s language, history, tradition, precedent, purpose, and consequence do not tend to result in an obvious decision. He also points out that depending on the court and time period, cases ruled in that era are mostly regarding the same section of the constitution. An example of this would be how shortly after in the case Lochner v. New York (which discussed the “freedom of contract”) the 19th century court followed a course of highlighting the constitution and sections where it mentions the protection of private property. Furthermore, Breyer begins to unravel his claim by attacking Scalia’s, as he argues that textualist have one thing in mind and that is a consequence and desire anything against a judge's favor in creating a non-democratic interpretation. However, if judges continue to interpret the constitution in such a way that is strictly based off of text, there will be a time where they run into a wall because one cannot take into account what the framers meant with all the ambiguity and they are not here to be asked. This claim is proven when he
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...
Holmes’s dissent in Lochner, criticizes the majority for essentially creating a new right through their substantive reading of the Fourteenth. The Court, by deeming the New York Bakeshop Act unconstitutional, does not take into account the beneficial qualities of the act. For example, protecting public health and welfare and providing proper working regulations for an industry that has a substantial need for it. The Court also overlooks the fact that the Act passed with a unanimous vote in the New York legislature. The decision is also an example of the court playing the role of the legislature by basing their decision not on law but on their own personal or political beliefs. The courts judicial activism becomes the main issue with the court’s decision in Lochner which greatly influences future decisions the court makes.
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.
The majority therefore held that the detainees are entitled to challenge their detention by the writ of habeas corpus whereas Justice Scalia is still restricting himself on the interpretation of text of Constitution. By comparing the view of Justice Scalia and majority, it can be said that Justice Scalia had focused on the text of the Constitution (which is rigid and restricted) whereas the majority focused on the individual liberty (a more flexible view by allowing wider interpretation of the Constitution).
When the rights of the American citizen are on the line than the judiciary should utilize the powers invested in them to protect and enforce what is constitutional. However, in times of controversy, where personal preference or aspects of religious or personal nature are at hand, the judiciary should exercise their power with finesse, thereby acting out judicial restraint. An example of such is in the case of Engel v. Vitale where Mr. Justice Black delivered the opinion of the court directing the School District’s principal to read a prayer at the commencement of each school day. In cases that do not regard whether an action is constitutional or not, the judiciary should suppress their power of judicial review.
In one case talked about in the textbook, which was Roe v Wade, the outcome ruled that Texas’s view that abortion was a criminal act was unconstitutional. The majority of justices believed that right to privacy includes the right to have an abortion and this wasn’t found in written words in the constitution. The outcome of this decision was influenced from the other Supreme Court case of Griswold v Connecticut. Another important case we discussed in class was Brown v Board of Education and this was an example of judicial activism. This is an example of that because the ruling in the Plessy v Ferguson case that facilities are in fact “separate but equal” was over turned in the Brown v Board of Education case defying the stare decisis (textbook) of letting the ruling stand and incorporating the ruling in this case. People who oppose these rulings back their claim by stating that the judges took their own beliefs into consideration and ignored the rule of law. Therefore, they are undermining democracy and not strictly following the text of the constitutions. More importantly many who oppose this bring up the point that the justices are those who are suppose to strictly follow the text of the constitution and not base decisions on their perspective on the
The Constitution of the United States is one of the most iconic and important documents of all time. However, when it was first generated, its writing and ratification caused some major concerns. The purpose of the Constitution was to address the great number of issues of a new nation. To be more specific, the Constitution was meant to resolve the political, economic, and social problems of the country. Nevertheless, the document spurred much discussion and concern over people’s rights, the economy, and political corruption.
Through the years many changes have taken place, and technologies have been discovered, yet our Constitution remains. Some say that the Constitution was written for people hundreds of years ago, and in turn is out of step with the times. Yet its principals and guidelines have held thus far. The framers would be pleases that their great planning and thought have been implemented up until this point. However this does not compensate for the fact, that the we the people have empowered the government more so than our fore fathers had intended. Citizens were entrusted with the duty to oversee the government, yet so many times they are disinterested and only seem to have an opinion when the government’s implications affect them. As time has changed so has the American people, we often interpret our freedoms in a self serving manner, disregarding the good of the whole and also the good for the future. Thus there are no true flaws in the Constitution, it appears that the conflict emerges in the individual and their self, and poses question when we must decide when to compromise the morals that our Constitution was founded on, or when to stick to what we know is right and honest.
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 ...
Everyone in America likes the constitution but it’s vague. The Supreme Court has their way of interpreting the constitution. The judicial interpretation of the constitution consists of five different interpretations. The Judicial Branch job is to uphold the constitution however; their view about the constitution is different in interpreting what it says or doesn’t say. The Supreme Court is presented with cases that they have to decide if it has constitutional validity, this task is known as judicial review. They make this decisions based on their own judicial interpretation theory. The five judicial interpretation theories are Natural Law theory, Pragmatist, Internationalist and Originalist that includes textualist and intentionalist. At of all these five theories the best one is the Originalist, textualist theory. Why make the constitution vague if it can be simplified into the real words the founders said? We can narrow the constitution interpretation into one theory and it would be beneficial to all.
When a case advances to the Supreme Court, the court asks a strange question: Is the law constitutional? The court is not overly concerned with the morality of the law. Admittedly, ethics are always a consideration, but when the time comes to make a ruling, the court bases its decision chiefly on Constitutionality. Amazingly, two hundred years after its conception, citizens of the United States remain fixated on the Constitution as the foundation of their society. And this happens on both sides of the aisle, on one side conservatives claim the second amendment provides them with a constitutional right to own an AK-47, while on the other, liberals argue that net neutrality protects their right to the freedom of speech. However, if the framers
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
views as to whether or not Judicial review, and the Supreme Court as a whole,
The Constitution or “the supreme law of the land”, as stated in article six in the constitution is very complex. It is complex not only in its actual text full of ambiguities and vagueness, but it becomes more complex when used in practice and interpreted. Constitutional interpretation is significant because it is what decides what the constitution actually means. Constitutional interpretation is a guide judges use to find the legal meaning of the constitution. The interpretation of the constitution and amendments can make a big impact on outcomes. In our government and Judiciary, we see commonly see originalism being used to interpret the constitution and amendments, but there
The significant impact Robert Dahl’s article, “Decision-Making in a Democracy: the Supreme Court as a National Policy-Maker” created for our thought on the Supreme Court it that it thoroughly paved the way towards exemplifying the relationship between public opinion and the United States Supreme Court. Dahl significantly was able to provide linkages between the Supreme Court and the environment that surrounds it in order for others to better understand the fundamental aspects that link the two together and explore possible reasoning and potential outcomes of the Court.