Political Theory21 Jan 2009 11:00 pm
Originalism vs. Living Constitution
For those who have no clue about judicial philosophy or the different ways to interpret the U.S. Constitution, this video is great. Take a look and leave comments if you’d like.
For my conservative and libertarian friends, most of you would probably be originalists, while the other side would choose the always changing “living constitution.”
April 18th, 2009 at 8:23 am
The Constitution is a “living” document, but not in the way those who espouse the “living Constitution” perspective of interpreting the Constitution. It is true that the founding fathers intended for the Constitution to evolve. However, they provided for that evolution through the orderly process of Constitutional amendment. It was not their intent that the meaning of the Constitution be altered through interpretation alone without the consent of the American people. As a democratic nation, it is we, the people, who are to have the ultimate say as to when, how, why and in what ways the Constitution evolves. Judicial activism and the “living Constitution” interpretation of the Constitution intentionally circumvents the ultimate authority of the American people and denies to us the very rights that the Constitution expressly grants to us. Judicial activism, therefore, is contrary to American democracy and freedom. It allows a small group of individuals to dictate to the entire citizenry when the Constitution itself guarantees majority rule.
M. J. Ryan, Ph.D.
June 16th, 2009 at 12:29 pm
Mr. Ryan, you point out that “Judicial activism and the “living Constitution” interpretation of the Constitution intentionally circumvent the ultimate authority of the American people and denies to us the very rights that the Constitution expressly grants to us.”
I have two questions for you. Do you believe you have a right to privacy? Is that right expressly granted to you by the Constitution?
I’ll answer the second one for you. No. I hope you do realize that the right to privacy is a product of such “judicial activism.” I’d go back and read the Supreme Court’s decision in Griswold v. Connecticut if I were you. Sure Douglas’ “penumbra” approach is frightening, but we must remember that some of the rights we hold so dear to us are products of “judicial activism.”
June 19th, 2009 at 9:16 pm
Student, you hit the nail on the head. Many of our so-called “rights” are huge products of judicial activism. For example, Miranda Rights are not in the Constitution at all, but were simply made up by the SCOTUS. I recall the late Justice Rehnquist upholding Miranda for the simple fact that the principle had been socialized into American society for so long. It was simply a judicial solution for a legislative and political problem, which is a role in which the courts should not partake.
July 22nd, 2009 at 3:20 pm
Student: Yes privacy is a constitutional provision as granted in the 4th Amm. This is distinct from the current judicial understanding of privacy which forbids laws that prohibit actions done in private. They are two separate things, and Isubmit that the former interpretation is mucher closer to the the common meaning of privacy to begin with.
July 23rd, 2009 at 7:05 pm
Hayes, while the 4th may imply a right to privacy (a person may be secure in their papers etc and free from unreasonable search and seizure), there is NO mention of privacy in the constitution. I believe you’re referring to the “penumbras and emanations” as mentioned in Griswold v. Connecticut, which is the right to privacy basis in Roe v. Wade and subsequent cases. For those who take a more open look at the Constitution, this may be quite true. But for strict constructionists, your argument has no ground. Personally, I would defer to the 9th amendment, along with Congressional legislation that may actually recognize other rights retained by the people.
July 27th, 2009 at 9:31 am
It is certainly true that the term “privacy” never is mentioned, but the text of the 4th Amm. certainly provides the same protections that an explicit “right to privacy” would.
My point is this: The scope that the “right to privacy” covers in contemporary jurisprudence goes beyond the actual provisions of the 4th Amm. For example, before Griswold the 4th Amm. applied to the issue of contraceptives, not by voiding any law than forbade them, but by preventing unwarranted searches etc… in order to ascertain evidence of possession. The same may be applied to the question of abortion.
July 29th, 2009 at 2:54 pm
Hayes, I appreciate the response. I do see your point of view, but where I am disagreeing with you is the basis of which you derive the scope of the “right to privacy” in terms of contemporary jurisprudence. I believe a much better interpretation can be derived from the 9th Amendment, in which the Congress or the people of the states may recognize other undefined rights that are consistent with a republic, be it via common law or historical/traditional precedent. Even the 10th may do justice on the state level. In terms of the 4th, history shows us exactly what the framers intended for the amendment to prevent (Government or soldiers seizing papers, searching homes, etc. without a legitimate and lawful mandate).
October 18th, 2009 at 10:08 pm
I agree that the Constitution was supposed to have been amended, and not just ignored. But what we have in America now is a combination of the Constitution and the judicial descions that have been made since the ratification of the Constitution, which could almost be considered modern American common law. The idea that you have the right to privacy is not in the Constitution, but it is part of how America has progressed and has thus become part of common law. This is a good system. I would not want to go back to strict interpretaton of the Constitution.