Nonoriginalist Adjudication: A Troubling Approach to Constitutional Interpretation In the 1980 law review, “The Misconceived Quest for the Original Understanding”, Paul Brest challenges traditional approaches to Constitutional interpretation by proposing non-originalist adjudication, a method that “accords the text and original history of the Constitution presumptive weight, but does not treat them as authoritative or binding” (p. 70). This method directly conflicts with originalism, the method of interpretation supported by Antonin Scalia, but generally agrees with semantic intentionalism, the approach proposed by Ronald Dworkin. The difference in the outcome of nonoriginalist interpretation is especially seen in cases involving morality and equality, for example, if applied hypothetically to the 1971 Supreme Court case, Roe v. Wade. The comparison of different approaches to Constitutional interpretation and the examination of the supposed legal outcome of nonoriginalist adjudication brings us to the realization that a method that allows the law to stray so far from the Constitution is truly dangerous to our traditional notion of government and threatens the stability of our Constitutional system. Nonoriginalism, Originalism, and Semantic Intentionalism Nonoriginalism and originalism, the approaches to constitutional interpretation put forth by Paul Brest and Supreme Court justice Antonin Scalia contrast as much in philosophy as they do in name; nonoriginalism allows the interpreter to stray from the purview of the Constitution for the sake of social progress, while originalism holds the interpreter within the limits of the text, in order to preserve traditional values. To begin with, Scalia’s originalist understandi... ... middle of paper ... ...nstitution allowed by nonoriginalism. These may go unnoticed or at least unaddressed seemingly without consequence, until one day we may be shocked to realize that our Constitution and our traditional system of government have been trampled by the enormous weight of many overlooked intrusions by nonoriginalist interpretation. References Dworkin, R. (1996). Freedom's law: The Moral Reading of the American Constitution. Cambridge, Mass.: Harvard University Press. Madison, J. (1788). Federalist No. 51: "The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments." New York Packet. Paul Brest, The Misconceived Quest for the Original Understanding 60 B.U.L. REV. 204 (1980) Scalia, A., & Gutmann, A. (2001). A Matter of Interpretation: Federal Courts and the Law.. Princeton: Princeton University Press.
Roland, J. (1998, October 18). The Federalist No. 51, The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments. Retrieved from Constition Society: http://www.constitution.org/fed/federa51.htm
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...
Levin, M. R. (2013). The liberty amendments: restoring the American republic. New York: Threshold Editions.
One reason we must have the second amendment is to protect the freedom for which our country fought so hard to win. The Declaration of Independence states: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”[1] However, if these rights were ‘self-evident’, why did the founding fathers need to grant them to the states? We might as well ask why man is the way that he is, imperfect. We all wonder about this sad truth, but the fact remains that man is fallen. These rights are self-evident, obvious to human reason, but because humans are fallen, we are sometimes blinded to these apparent truths and we err in our rationality. King George was blind to these unalienable rights, as were Na...
Dahl, R. A. (2001). Decision-making in a democracy: the Supreme Court as a national policy-maker. (Honorary Reprint). Emory Law Journal, 50(2), 563–582.
Justice Iredell, on the other hand, believed that courts couldn’t ignore or strike down statutes based solely on “social compact” or natural law. He said, “The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.” (56). He asserted the ability of the Supreme Court to review legislative acts, but on the basis of something more than the principles of “natural justice.” According to Iredell’s view, any act of the legislature that violates the constitution is
Wolfe, Christopher. The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law. New York: Basic Books, Inc., 1986.
Although the original constitution was designed to endure and last, ruling with the “original intent” would not be ideal due
In 1791, the Bill of Rights, consisting of 10 amendments, was ratified into the constitution. The document’s purpose was to spell out the liberties of the people that the government could not infringe upon. Considered necessary by many at the time of its development, the Bill of Rights became the cause for a huge debate between two different factions: The Federalists and the Anti-Federalists. The Federalists were those who thought that there should be a new Union created with a strong centralized government and individual regional governments. They felt that it was not necessary for there to be a bill of rights because it was implied that those rights the Constitution did not specifically state would be handed down to the states. On the other hand, the Anti-Federalists were opposed to such a form of government on the grounds that the Constitution, in which it was outlined, lacked clarity in the protections of the individuals. The Anti-Federalists—whose memory of British oppression was still fresh in their minds—wanted certain rights and guarantees that were to be apart of the constitution (Glasser 1991). A clear demonstration of the Anti-Federalist attitude was performed by Samuel Bryan, who published a series of essays named the ‘Cenitnal Essays,’ which “assailed the sweeping power of the central government, the usurpation of state sovereignty, and the absence of a bill of rights guaranteeing individual liberties such as freedom of speech and freedom of religion (Bran 1986).” Of course, the freedoms stated above are a portion and not the whole of The Bill of Rights. Ultimately, The Bill of Rights was adopted to appease the Anti-Federalists, whose support was necessary to ratify the constitution, and who believed that without the liberties granted therein, the new constitution—that they thought was vague and granted too much power to the central government—would give way to an elite tyrannical government.
Federalist Papers are arguably some of the most important documents in constitutional history. But it’s easy to forget that these essays were written under extreme deadlines and dire circumstances. The Federalist Papers as we know them today were penned only in order to convince the citizens of New York to vote for a then unpopular Constitution. In his article Epstein attempts to critique the profound nature of the essays and the vision which allowed them to transcend from their political origins. In essence: what makes the Federalist Papers so special?
Hall, Kermit L, eds. The Oxford guide to United States Supreme Court decisions New York: Oxford University Press, 1999.
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
Kay, H. H. (2004, Jan). Ruth Bader Ginsburg, Professor of Law. Columbia Law Review, 104, 1-20. doi:10.2307/4099343
John Stuart Mill discusses the concept of liberty in many ways. I’d like to focus on his ideas of the harm principle and touch a little on his thoughts about the freedom of action. The harm principle and freedom of action are just two subtopics of Mill’s extensive thoughts on the concept of liberty. Not only do I plan to discuss and explain each of these parts of the conception of liberty, but I also plan to discuss my thoughts and feelings. I have a few disagreements with Mill on the harm principle; they will be stated and explained.
Even though this model was favoured during the Federation, it is a technique where its practical utility and philosophical underpinnings was rejected by Justice Kirby. It is claimed that interpreting the constitutional terms by applying this technique may defeat the purpose for which they were incorporated in the Constitution. The drafters were said to be closely acquainted with common law’s evolutionary nature and it would be odd if they intended for the essential connotation of the constitutional words be frozen in 1900 for all time. Though, the actual application of this model seems to do exactly that, as it relies on the identification of ‘the set of attributes to which a word referred in 1900, when the Constitution was enacted’.