The arguments pro et contra the originalist theory of jurisprudence really come down to a disagreement of ideas. These ideas can only be attacked at abstract levels of interpretation,and speak toward the a priori intent of the theory to provide justification for decision. It is when the act of the decision is carried out that the more concrete examples of inconsistencies within an originalist theory present themselves a fortiori . As such, the focus must now be on analyzing Supreme Court cases that Justice Scalia has written either a majority opinion or a dissenting opinion on to see if his originalist theory holds up to scrutiny.
In Prinz v. United States, the slim (5-4) majority of the Supreme Court held that the Brady Handgun Violence
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In addition, the earlier Legislatures could have assumed that their goals could be achieved by direct federal action. Both of these theories hold just as much weight as an orginalist interpretation of the intent of historical congressional action. Consequently, to infer that earlier congressional inaction is a result of intent, is to assume that originalism is the only way to interpret the action. Thus, it is to assume the truth of one competing theory at the exclusion of many others. The absence of a specific law at a particular time does not translate into a mandate for unconstitutionality.
In presenting Justice Scalia 's majority opinion in Prinz v. United States, it is obvious that, using the principles of originalism, is no more than taking history out of context to support a conclusion that appears consistent only to support a predetermined conclusion. Justice Scalia 's brand of originalism only uses history when it supports a particular conclusion, and denies it when it doesn
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To extend his use of orginalism, it is easy to see that landmark Supreme Court cases such as, Brown v. Board of Education of Topeka, were wrongly decided, because the same historical Congress that approved the Fourteenth Amendment is the same Congress that enacted laws to segregate the public schools of the District of Columbia. In the word 's of Justice Scalia 's originalism, as evident in his dissent in United States v. Virginia, the Constitution provides no protection for women under the Equal Protection Clause (United States v. Virginia, 567). This seems very hard to fathom, that any interpretation of the Constitution that claims a case of the magnitude of Brown v. Board of Education of Topeka, or that women are not entitled to equal protection, is correct. One can only hear Justice Scalia 's response to this critique to be similar to any critique of his originalism, “[a]nyway, that’s my view. And it happens to be correct” (qtd. in Murphy,
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...
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 principle of stare decisis does not demand that we must follow precedents, which shipwreck justice.”
Hall, Kermit L, eds. The Oxford guide to United States Supreme Court decisions New York: Oxford University Press, 1999.
The two filed separate claims challenging the constitutionality of the Brady Act’s provision that used congressional action to compel state officers to execute Federal law. The NRA stood behind them, stating that this provision violated the 10th Amendment. However, instead of just arguing for the removal of the provision, the NRA argued that the whole law must be voided. This argument contradicted prior claims from the NRA that they did, in fact, support background checks. In 1997, the Supreme Court ruled to remove the portion of the Brady Law that required local police to conduct background checks as it was an unconstitutional mandate. The rest of the law remained in place
... argument because it shows the problems with the amendment and his argument complies with the constitution. Furthermore, Kennedy brings up more valid points, whereas Scalia mostly relies on the reasoning that Kennedy’s argument lacks the evidence of enough legal citation. Also, Kennedy believes the amendment is unconstitutional on the basis that it violates the equal protection clause because it denies homosexuals special rights that any other minority has access to, and it singles out one class that it affects instead of creating a general law that affects everyone. Thus, Kennedy’s argument should prevail because it relies on the constitution as its main evidence to show that the amendment is invalid and should not be permitted, and Kennedy believes that the amendment violates the rights of homosexuals, which is clearly does by singling them out as a specific class.
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 ...
Federal laws and regulations contain many loopholes, are inconsistently interpreted and may be repealed outright (NOW 1). Many supporters claim the Equal Rights Amendment is needed "to clarify law for the lower courts, whose decisions still reflect confusion and inconsistency about how to deal with sex discrimination claims (Francis 2). There is a supporting theory argument that "an amendment to equality would absolutely shift the burden away from those fighting discrimination and place it where it belongs, on those that deserve it.... ... middle of paper ... ...
Columbia Law Review, 104, 1-20. doi:10.2307/4099343. Reynolds, S. (2009). The 'Standard'. An interview with Justice Ruth Bader Ginsburg.
Following a refusal from the Supreme Court to hear an appeal from another assault-rifle-ban decision, Justice Clarence Thomas issued a dissent criticizing the Court’s inconsistency in reviewing decisions that clearly contradict previously established constitutional precedents. However, the Court’s refusal to review this decision came with no comment. According to the author, the Kolbe decision neglects the Supreme Court precedent governing Second Amendment cases to a far greater degree than those before it. Additionally, the Court passed on the chance to clarify for the lower courts how laws are judged under the Second
Introduction This submission will discuss the problems created by the Doctrine of Judicial Precedent and will attempt to find solutions to them. Whereas, English Law has formed over some 900 years it was not until the middle of the 19th Century that the modern Doctrine was ‘reaffirmed’. London Tramways Co. Ltd V London County Council (1898). Law is open to interpretation, all decisions made since the birth of the English Legal System, have had some form of impact whether it is beneficial or not The term ‘Judicial Precedent’ has at least two meanings, one of which is the process where Judges will follow the decisions of previously decided cases, the other is what is known as an ‘Original Precedent’ that is a case that creates and applies a new rule. Precedents are to be found in Law Reports and are divided up into ‘Binding’ and ‘Persuasive’.
In this essay, I will be talking about legalism. Legalism is a political philosophy, in other words, an absolute monarchy. I chose this philosophy because it has a different logic, and it is harder to understand than the other beliefs. I have come up with three main points to explain Legalism the best way possible.
The central aim of this essay will be to support the legal-positivist that law and morality are strictly separable. In its simplest form many understand legal positivism to be the existence and content of law, which depends on social facts, and not on its merits. I will engage closely with the work of John Austin and his concept of law, which offered a developed and progressive piece of work from Bentham, focusing on Austin’s The Province of Jurisprudence Determined (1832) in order to demonstrate one of the earlier accounts of legal positivism. By exploring Austin’s theory of sovereignty, in which he outlines that in every state there exists an authority to which a large mass of citizens show compliance, I will address the consideration that
Conversely, the pronounced influence of Confucian orthodox on the Code was paralleled by the pronounced influence of Legalist doctrines especially in the Code’s technical construction. Accordingly, Legalism’s prominent influence on the codification and administration of the Code is broadly separated into the three distinctive components of Legalism. In a representation of Fǎ, the set of rules embodied in the Code heavily reflects the conceptual notion of the usage of rewards and punishments to keep societal behaviour in check. Despite the failure to fulfil the original Legalist principle asserted by Ma as ‘objective and absolute standards of Fǎ’ with the gradation of punishments that emphasised levels of criminality and punishments based on individuals’ familial and societal rank, Fǎ was still noticeably influential in the Code. The separation of crimes into three notable categories based on the severity of the felony reflects Fǎ through severely punishing crimes that will undermine, obstruct and threaten the structure, authority and integrity of the state. The adoption of death penalties for crimes against the sovereign such as treason and sedition, hence evidences the prominent influence of Legalism in certain aspects of the penal code
The court made this observation at the conclusion of the case without either examining the previous case law in this regard (the more accepted position in law being that the Basic Structure doctrine is to be applied only for constitutional amendments) or providing detailed reasoning for the statement. ...