Interpreting the Constitution

The constitution is over 200 years old. It has impacted americans when it was first made, and it is still impacting me and many other americans. The reasons it impacts me are I will get to vote who runs america, and let's americans rights to bear arms.

Government was created, and has always been, to enforce law and order. “Governments almost certainly originated with the need to protect people from conflicts and to provide law and order” (Purposes, 2016, par. 2). Without government, the people would fall into disorder and chaos, causing unhappiness and hardship throughout the nation they live in; it would be anarchy. Constitutional governments not only protect citizens from foreign threats, but also domestic threats from within. In America, a citizen’s freedoms extend as far as they want until they infringe upon the rights of another citizen. Life, liberty, and the pursuit of happiness are only some of the many rights promised to the American people. These rights are set forth by a well-

A constitution is a written document that sets forth the fundamental rules by which a society is governed. Throughout the course of history the United States has lived under two Constitutions since the British-American colonies declared their independence from Great Britain in 1776. First in line was the Articles of Confederation (1789-1789) followed by the Constitution of United States of America (1789-present). The Articles of Confederation was the first formal written Constitution of America that specified how the national government was to operate. Unfortunately, the Articles did not last long. Under the words of the Article’s power was limited; Congress could make decisions, but had no power to enforce them. Also the articles stated

Americans elect two-thirds of the government, both the president and congress. As for the supreme court justices, the president nominates someone and congress reviews them. This is how the system should stay, for the American public would not choose the best people if justices had to run and be elected.

In the dissenting judgment made by Callinan J in the landmark New South Wales v Commonwealth (“Workchoices’ Case”), a strong criticism was mounted against constitutional interpretation methods employed in the judicial forum. Explicitly, this conjecture was focused at Isaacs J’s judgement in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“Engineers’ Case”), where a textualism approach to constitutional interpretation was adopted. Callinan J expressed the Engineers’ Case as “less than satisfactory”, using “detached language” to discredit its literal methodology of interpreting the constitution.

The adversarial nature of Australia’s court system deal with facts and legal implications. Here lies the establishment of such principles that make the law

A judicial originalist “holds that judges should decide the cases before them solely through application of principles derived from the written text of the Constitution” and views that “any interpretation…should be based on the ‘original intent’ of the framers” (88). This contrasts with a judicial pragmatist, who

     When the Federalist party was organized in 1791, those people who favored a strong central government and a loose constitutional interpretation coagulated and followed the ideals of men such as Alexander Hamilton. The first opposition political party in the United States was the Republican party, which held power, nationally, between 1801 and 1825. Those who were in favor of states rights and a strict construction of the constitution fell under the leadership of Thomas Jefferson. These Jeffersonian republicans, also known as anti-federalists, believed in strict adherence to the writings of the constitution. They wanted state’s rights and individual rights, which they believed could only be granted under

The Legal Approach: This approach is very tricky to control the president, and therefore, it is very important to block and prevent any tyrannical regime because it is all about laws and legislatures. In here, the American constitution is very important and leads the way. It shows that how the constitution plays a role in presidency. Through this, the significant advantage of this approach is that the president and his or her presidency is controlled by the constitution, laws, legal precedents and customs. The legal approach limits the power of the president, and put some boundaries of the presidential warrant, reach and powers to prevent any tyrannical kind of regimes. This approach also determines that how a president uses his or her authority with other branches of the federal government, such as judiciary, the congress and bureaucracy.

Here, McHugh J suggests the basis of constitutional interpretation lies within the “natural meaning of its text, read in the light of its history.” This particular assertion also finds further support in Victoria v Commonwealth where the scope of “the external affairs power” was established via historical references regarding 19th century treaty execution in Australia. Taking such obiter’s into account, it appears the ‘Race Power’ encompasses a more beneficial role - yet, the literalist approach opposes such. Consisting of those who are hesitant to progress outside of the confines of the Constitution, as they believe it should be “interpreted…according to [the words] natural sense and in documentary context,” literalists struggle to comprehend the requirement of Historical reference in such vague sections like that of section 51 (xxvi). Here, the Engineers’ Case acts as further evidence of the High Court’s tendency to negate the use of theoretical analysis via the suggestion that

It is recognised that Australia’s System of decision making in the court is in need of reform, if the

Teacher, L., 2017. Law Teacher. [Online] Available at: https://www.lawteacher.net/free-law-essays/constitutional-law/distinguishing-features-of-the-australian-legal-system-constitutional-law-essay.php [Accessed 5 May 2018]. TransferWise, 2017.

While I find the Originalist view of constitutional interpretation to be compelling and considered very carefully, I do not think it is enough to say that the Obergefell decision was incorrect because of the lack of democratic opportunity this issue was given prior to this case. I also think that Gallagher, Girgis, George, and Anderson all have valid points to why marriage should be between a man and a women with that it is better for children and it is not natural, there are issues to their argument that I must address.

According to Antonin Scalia there are two types of approaches to interpreting the Constitution: originalist and living. Which approach do you believe the Court should take? Why? How does this approach affect the policymaking process?

Though there are many different methods of interpreting the Constitution, originalism is not the most effective approach. Originalism is the method where judges try to clarify the original meaning of the Constitution. Originalists argue that originalism is the only faithfully democratic mode of constitutional interpretation. This can be looked at separately because the Constitution was not