Nonoriginalist Adjudication

Laurence H. Tribe and Michael C. Dorf wrote the article “How not the Read the Constitution” in an attempt to investigate the intended interpretation of the Constitution. It was commonly agreed form both wings of the American political system the wording of the constitution was vague weather left that way purposely or not. What the writers aim to state is that the Constitution was mean to serve as a guide to feature generations, and was left vague in order to reflect the continually changing American society. Other groups to this day who oppose this view, in favor of constitutional interpretation as the framers would have seen it. In order to be more applicable to society today though, It seems more appropriate that the constitution reflects

The main purpose behind the book Unruly Americans and the Origins of the Constitution, by Woody Holton is to demonstrate the authors view on the true intent of the Framers when writing the Constitution. Although at first glance the book may seem to uphold the idea that the framers wrote the Constitution in order to protect civil liberties, Holton has a different opinion. To avoid a one sided book, the author not only looks at the framers intent, but the struggles facing the American people.

The court observed that the ‘legal meaning’, i.e. meaning the legislature is taken to have intended, may not correspond to the literal or grammatical meaning. As four justices put

The Constitution is a living, breathing document. It was recognized that each future generation would be facing new challenges that would have never occurred to the older ones, so it had the flexibility available by both interpretation and revisement to allow the newer generation to use the document as it was intended. As society and government grows, additions must be made to the Constitution to keep with the times. The Constitution is also governed by the thoughts of society at that time, seen in the implementation of the 18th amendment because of the urgings of religious and Women’s Suffrage movements. As it is also seen when the government grows weary of one president in office too long, seen in the creation of the 22nd amendment.

Statutory purpose is a paramount tool in Breyer’s pragmatism. Indeed, it is one of the two tools (the second we will see later) that he has found to be “the most useful” (Yale 12) because it conduces one of pragmatism’s central values: sustaining the work of democracy. Ordinarily, the pragmatist turns to statutory purpose “when statutory language does not clearly answer the question of what the statute means or how it applies” (Breyer 85). However, the majority uses purpose in a slightly different way here. Rather than using it to modify its interpretation of the CSA, the majority uses statutory purpose to analogize it with the AAA: “Just as the [AAA] was designed ‘to control the volume

The ability of The Constitution to be amended is what still allows it to be relevant today. The updates that are made reflect the attitude of the nation. An example of this being the

Such implied rights are only applicable if they are “plainly arising from the text of the Consititution, rather than assumptions upon which it is based, but which is does not express”. This supports a more recent trend to a purposive approach to interpretation of the constitution.

The Supreme Court decision in Buck v. Bell displays some clues to the values of early twentieth century American society. The interpretation of the 14th Amendment of the United States Constitution is the lynchpin of the decision, and the values of the court can be derived from it. In this essay I will demonstrate that the ambiguity of the Amendment in question has significant consequences, the ethics of the interpretation of the Amendment is derived form the paternalistic nature of the Constitution, and that equality of the law is subservient to the desire for a homogeneous and comfortable cultural environment.

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.

Legal cases are generally decided upon when a judge applies the law to the facts of the case; however, the Constitution is ambiguous which means it can be comprehended differently. The way the Constitution is translated in today 's society and applied to modern laws is a responsibility that the Supreme Court justices must uptake. Many factors are believed to play a role in how exactly justices finalize and make their decision, which is why political sciences created three different models of judicial decision making. The legal model, attitudinal model, and strategic model help us grasp a better understanding of what may influence the decision making process. As stated earlier, some decisions are based on the law being applied to the facts, and this decision process is explained in the legal model. The legal model also expresses how justices, in addition to using facts and the law, can use information from previous and almost equivalent cases helping them determine their decisions. Unlike the legal model, the attitudinal model explains how justice’s policy preferences can influence their decision. This model shows how legal text of the Constitution could possibly be ignored, and instead the justices’ own opinions, just like politicians, would guide them through the decision making process. According to Unit 8 Video Engager, it is believed that the justices may take this approach due to the fact that they are entitled to a

According to Scott (2008), the Constitution of America has undergone several translations within the history of America because they found it to be unclear. Whereas it appears discrepant that the unclear Constitution could be useful, the disagreement is the case (Robertson, 2005). Americans regard the Constitution to be helpful for the reason that it allows for diverseness of views. In the history of America, a variety of thoughts would develop with alarming and formidable support through various factions (Robertson, 2005). Today, the main political arguments are presented from the Republican group or Democratic group. During the early periods of the American government, arguments on politics were made by Thomas Jefferson

Is the United States Constitution a sacred and absolute document? Dahl (2001) argued that the Constitution is not perfect or permanent in his book, How Democratic is the American Constitution. He stresses that his main aim is not to propose that the Constitution must be amended, but to facilitate readers in changing how they think about the Constitution. In order to help people rethink the Constitution, Dahl (2001) explained the limitations of its Framers and the Constitution’s not widely known undemocratic aspects. The strengths of the book are its ethos or reputation of the author that establishes his credibility, informal writing style that can appeal to more people, its consideration of a number of undemocratic aspects of the

In this essay I will try to explain and critique the two dominant methods of constitutional interpretation. Which are originalism and non-originalism. I will do this by taking help from “How to Read the Constitution” by Christopher Wolfe, and different source’s from Internet. I will start by giving what Wolfe says originalism is, and then I will give some background to other ways to interpret the constitution, and the founders and interpretation and I will finish up with my view on originalism and non-originalism and the critics to that.

Traditional Originalism led the court as the method of constitutional interpretation until the late nineteenth century. Judges were compelled to interpret the Constitution based on the original meaning of the provisions. The Originalism view interprets the constitution line by line exactly as the founders would have found it. Later, during the early twentieth century, progressives in the legal community proclaimed that due to the changing social environment as time goes on in the nation, the political system needed to be reconfigured. They thought that the political system needed increased national government authority and a modern administrative state. They also thought that the increased national authority and modern administrative state wouldn’t work well with the traditional Originalism interpretation of the constitution. After long political battles in and out of the court, they won the argument and the Constitution would be adapted without formally amending it. Debates were waged over whether or not the Constitution could be changed through interpretation instead of the originalist requirement of amendment, and over whether or not the Constitution was to be viewed as living. The notion of a “living constitution” was developed, and slowly set precedent as landmark cases made their way through the supreme court, and the interpretation of the constitution was put to the test.

There are multiple schools of thought when it comes to how courts should interpret statues and legislation, some schools advocate a literal, textual reading of the relevant statues, while other schools advocate taking other factors into account when making a decision, factors like the intent of the legislature when they passed the statue. The case AA v BB provides a good look into the issue of statutory interpretation because the two different courts that heard the case applied a different from of statutory interpretation. The lower court stuck to a textual interpretation, whereas the court of appeal considered the legislative intent behind the relevant statues. This paper will argue that of the two schools of statutory interpretation applied in the case, textualism and intentionalism, neither is completely appropriate and that the pragmatic approach to statutory interpretation is the most appropriate method to use. It will then argue that the decision by the Ontario Court of Appeal in AA v BB is the more convincing decision as it best aligns with the pragmatic approach.