Transcript Originalism v. Living Constitution

Judicial Philosophy
Judicial Restraint v.
Judicial Activism
Judicial Restraint
• Limit the exercise of their
own power.
• Go to great lengths to
defer to the legislature (or
executive) because they
represent the majority of
Americans.
• Respect stare decisis, the
principle of upholding
established precedent
handed down by past
judges.
• Plessey v. Ferguson
(1896)
– Stating that the
“separate but equal” is
okay.
– Let the legislatures
decide how to handle
it.
Judicial Activism
• Courts believe it is
their duty to uphold
liberties because the
leg. and exec.
branches won’t always
do that.
• Believe in “case law.”
– Courts making new
public policies.
• Brown v. Board of
Education (1954)
– Overturned the
precedent set in
Plessey.
– Expected the states to
act upon their ruling
– Brown II (1955):
“…with all deliberate
speed.”
Originalism v. Living
Constitution
Interpreting the Constitution
Originalism
• Staying true to the intent of the Founding
Fathers.
– Interpret the Const. based on what reasonable
persons living at the time of its adoption would
have declared the ordinary meaning of the text
to be.
Originalism
• “A judge has no authority to impose a
moral hierarchy upon society. People can
and do disagree about moral or ethical
principles. Because we disagree, we put
such issues to a vote and, where the
Constitution does not speak, the majority
morality prevails.”
Robert H. Bork
Originalism
• Constitution is the rules. Judges are the umpires.
They just call the play, they don’t change the rules.
• Strength:
– Proscribes to judges to stay above politics.
• Shortcomings:
– Hard time with new facets of society, such as
technology.
– The words of the Constitution are inherently
indeterminate—they can often be given more than one
plausible meaning.
Living/Evolving Constitution
• The Const. remains interdependent with the
society that implements it.
• Make it fit the times.
– Societal progress should be taken into account
when interpreting key constitutional phrases.
Living/Evolving Constitution
• The allure of originalism and of those who
claim to practice it—their ability to make
complicated issues sound simple and tough
decisions easy—is precisely what should
make us suspicious of it. For it threatens to
put us to sleep at the very moments when we
must be most alert to the choices that are in
fact being made about the Constitution and
its impact on our daily lives.
Laurence H. Tribe
Living/Evolving Constitution
• Constitution gives rules and boundaries
(guidelines) to make the process more fair. Must
expand on the boundaries.
• Strength:
– Let’s you make Const. fit the times.
– Prescribes certain principles—trying to make things
right. Limits are best determined by judges.
• Shortcoming:
– Expands the Constitution too much. Gets too far away
from what the founders intended or ever imagined.
• Justice Scalia is most famous for his belief
in originalism. He totally rejects the theory
of a “living” Constitution.