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.
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.
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
In Eric Foner’s book, The Story of American Freedom, he writes a historical monograph about how liberty came to be. In the book, his argument does not focus on one fixed definition of freedom like others are tempted to do. Unlike others, Foner describes liberty as an ever changing entity; its definition is fluid and does not change in a linear progress. While others portray liberty as a pre-determined concept and gradually getting better, Foner argues the very history of liberty is constantly reshaping the definition of liberty, itself. Essentially, the multiple and conflicting views on liberty has always been a “terrain of conflict” and has changed in time (Foner xv).
Kay, H. H. (2004, Jan). Ruth Bader Ginsburg, Professor of Law. Columbia Law Review, 104, 1-20. doi:10.2307/4099343
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...
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
Wolfe, Christopher. The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law. New York: Basic Books, Inc., 1986.
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
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.
Although the original constitution was designed to endure and last, ruling with the “original intent” would not be ideal due
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?
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’.