In his essay, “A Matter of Interpretation,” Justice Antonin Scalia lays out three key elements of textualism, which are explicitly present in two other competing approaches of statutory interpretation. The meaning and the intent of the law, are two of the key elements of textualism which are present in the living Constitution and strict constructionism approaches. In addition, the context of the law is an element of textualism which is present in the living Constitution approach. When Justice Scalia speaks about the context of the law, he states “in textual interpretation, context is everything” (Scalia 37), however, context is also present in the living Constitution approach. An equally important element of textualism, is the meaning of the law and it is present in the living Constitution and strict constructionism approaches. Furthermore, the intent of the law is an element of textualism which is also present in the other two competing approaches of constitutional interpretation. This essay will discuss the key elements of textualism that are explicitly present in the living …show more content…
Justice Marshall argues, that in the Constitution the original intent of “we the People” did not include black slaves (O’Brien 227). Furthermore, Justice Marshall argues that blacks were “enslaved by law, emancipated by law, disenfranchised by law and segregated by law” (O’Brien 228), therefore the meaning of the text can be changed. As a result, in the living Constitution approach, the meaning of the law evolves as society develops. As Justices Thomas and Marshall explained, the meaning of the law is an element of textualism that is present in the living Constitution approach, and functions as an interpretive tool. Additionally, the context of the law helps Justices determine the meaning of the
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.
Conservative jurisprudence can be understood as an agenda of conserving existing conditions, upholding restricted rights in cases concerning individual, society, and sexual liberty interests in order to retain in its traditional style as similar in the past as possible whereas liberal jurisprudence place itself with a constitutional theory that expand individual rights. By applying these ideologies in the interpretation of the legislation, it can be said that conservatives will interpret the text as a rulebook to be followed strictly as possible and they are able to justify employing the narrowest level of generality in their analyses of
... “inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice”? (Hamilton.Jay.Madison 105) With an end reminding us of the tough qualifications judicial offices must have met to get into office. “Hence it is that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the station of judges.” (Hamilton.Jay.Madison 106)
“When contemporary Americans cite “The Constitution,” they invoke a concept that is vastly different from what the framers barely began to construct two centuries ago” (Marshall 611). This quote from Thurgood Marshall conveys his message in “Reflections on the Bicentennial of the United States Constitution.” Thurgood Marshall is the first Black Supreme Court justice, and he wrote these reflections in 1987. He does not believe that the Founding Fathers’ idea of The Constitution should be highly celebrated, as it no longer exists in that state. His essay is filled with historical context and substance. Using a clever delivery, his message is conveyed emotionally and with logic. The method of organization allows the reader to better absorb
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
This amendment was created during the reconstruction phase attempting to reunite this country after the brutal battles of the Civil War. Henretta and Brody emphasize how the Republicans were progressing in a direction to sanctify the civil rights of the black community. These authors contend the vital organ of the document was the wording in the first section. It said “all persons born or naturalized in the United States were citizens.” No state could abridge “the privileges or immunities of citizens of the United States”; deprive “any person of life, liberty, or property, without due process of law”; or deny anyone “the equal protection of the laws.”2 Imagine the problems that could arise in the country if repeal were to come to a realization. Henretta and Brody point out how the wording in section 1 of the document was written in a way that could be construed as inexplicit. The reason for this was for the judicial system and Congress could set an example for balance in due process here in the
“The law on the side of freedom is of great advantage only when there is power to make that law respected”. This quote comes from Fredrick Douglas’ book, Narrative of the Life of Frederick Douglass, an American Slave, written in 1845. Fredrick Douglas who was born into slavery in 1818 had no understanding of freedom. However, his words shed light on the state of our country from the time he made this statement, but can be traced back fifty-eight years earlier to when the Constitution was drafted and debated over by fifty-five delegates in an attempt to create a document to found the laws of a new country upon. However, to eradicate the antiquated and barbaric system of slaver would be a bold step to set the nation apart, but it would take a strong argument and a courageous move by someone or a group to abolish what had enslaved thousands of innocent people within the borders of America for centuries. There was an opportunity for the law to be written within the Constitution, which would support this freedom Fredrick Douglas alluded to. However, the power, which controlled this law, would as Douglas stated, “make that law respected”.
The life of every American citizen, whether they realize it or not, is influenced by one entity--the United States Supreme Court. This part of government ensures that the freedoms of the American people are protected by checking the laws that are passed by Congress and the actions taken by the President. While the judicial branch may have developed later than its counterparts, many of the powers the Supreme Court exercises required years of deliberation to perfect. In the early years of the Supreme Court, one man’s judgement influenced the powers of the court systems for years to come. John Marshall was the chief justice of the Supreme Court from 1801 to 1835, and as the only lasting Federalist influence in a newly Democratic-Republican government, he and his fellow justices sought to perpetuate their Federalist principles in the United States’ court system. In one of the most memorable court cases of all time--the case of Marbury v. Madison-- Marshall established the idea of judicial review and strengthened the power of the judicial branch in the government. Abiding by his Federalist ideals, Marshall decided cases that would explicitly limit the power of the state government and broaden the strengths of the national government. Lastly, the Marshall Court was infamous for determining the results of cases that dealt with the interpretation of the Constitution and the importance of contracts in American society. The Marshall Court, over the span of a mere three decades, managed to influence the life of every American citizen even to this day by impacting the development of the judicial branch, establishing a boundary between the state and national government, and making declarations on the sanctity of contracts ("The Marshall Court"...
In “The Fish” by Elizabeth Bishop, the narrator attempts to understand the relationship between humans and nature and finds herself concluding that they are intertwined due to humans’ underlying need to take away from nature, whether through the act of poetic imagination or through the exploitation and contamination of nature. Bishop’s view of nature changes from one where it is an unknown, mysterious, and fearful presence that is antagonistic, to one that characterizes nature as being resilient when faced against harm and often victimized by people. Mary Oliver’s poem also titled “The Fish” offers a response to Bishop’s idea that people are harming nature, by providing another reason as to why people are harming nature, which is due to how people are unable to view nature as something that exists and goes beyond the purpose of serving human needs and offers a different interpretation of the relationship between man and nature. Oliver believes that nature serves as subsidence for humans, both physically and spiritually. Unlike Bishop who finds peace through understanding her role in nature’s plight and acceptance at the merging between the natural and human worlds, Oliver finds that through the literal act of consuming nature can she obtain a form of empowerment that allows her to become one with nature.
This concept was later expanded upon in the Declaration of Independence by Thomas Jefferson and became the motto of American democracy: “life, liberty, and the pursuit of happiness”. However, the founding fathers and their influential Enlightenment Era philosophers often referred to blacks as “savages” and “inferior humans”, denying them these “inalienable” rights. It is through this manipulation of language and human understanding that African Americans were denied the most basic elements of freedom. The Constitution itself is highly influenced by Enlightenment thought and meant to serve as the mark of an egalitarian republic. However, it includes no mention of the word “slave”, yet directly condones the foreign importation of slaves for at least 20 years after its ratification. This is evidence that African Americans were marginalized in their aspirations for freedom, strictly because their subjugated position in society benefited
The framers of our great nation all had their own interpretation of how the States should run and after many proceedings, debates and ratifications; the Constitution was born. Too many, there are aspects of the law that cannot be understood simply by reading that document. Much of the confusing interpretations to this document are in part because of customs in the early establishments of the States. Additionally, state and federal laws have been filled in due to the absence of details that were left vague or because the meaning of words and phrases have changed over time. Because of this, the Constitution is continually reinterpreted as it is applied to concrete situations. There are numerous methods for interpreting the Constitution. Through the centuries, legal scholars and justices have advocated to fit the needs of specific cases. The most prominent methods include those that rely on textual interpretation, original intent, precedent, constitutional principles, logical reasoning, or the living constitution. Many judges rely on a combination of these methods to reach their decisions. (Constitutional Interpretation, 2015). In American History. Retrieved from
“Prodigy” is an exciting post apocalyptic science fiction novel written by Marie Lu. It is told by the two protagonists, Day and June. They attempt to discover the truth about the rebels they are working with, and The Republic. The Republic is their main form of government who killed both of Day and June’s families. They find that the leader of the patriots, and the antagonist of “Prodigy” is planning to become the Elector; the main leader of The Republic. Day and June travel throughout the plague swept Vegas, and the flooded west coast seeking safety from the wars. Marie Lu has written a wonderful 347 page novel filled with courageous characters, who must face many dangerous obstacles. The reader will be astonished by the resolution of the book, and will be left with a powerful theme.
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
Leslie G. Scarman, ‘Codification and Judge-made Law: A problem of co-existence’ [1967] 42(3) Indiana Law Journal http://www.repository.law.indiana.edu/ilj/vol42/iss3/3 accessed 12 February 2012