A report on constitutional interpretation
These values are independent of whether the original contracting parties are still alive.
Theories of constitutional interpretation pdf
This guaranteed that change would be slow and incremental. He concludes that when interpreting the Constitution, the judiciary should adhere to the discoverable intentions of the Founders. Third, the Constitution divides power vertically between the national government and the states. This function of dividing and allocating power in so many different ways again goes somewhat beyond just the creation of a skeletal framework or the getting going of politics. This book sympathetically examines the most sophisticated critiques of originalism based on postmodern, hermeneutic, and literary theory, as well as the most common legal arguments against originalists. Constitution is a mixture of specific and general provisions. Bork's militance and dogmatism will buck up his followers and sweep along some doubters, but it will not persuade neutrals. The Court's survival and flourishing depend on the political acceptability of its results rather than on its adherence to an esoteric philosophy of interpretation. Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review Constitutional Interpretation reconsiders the implications of the fundamental legal commitment to faithfully interpret our written Constitution. Prior to , state courts had already overturned legislative acts which conflicted with state constitutions.
One cannot understand presidential power in foreign affairs, or the political question doctrine, or the case and controversy limitation without making reference to practice.
The Constitution similarly allows us, in exchange for giving up our freedom to scrap it, the security of being bound by some pretty sensible rules that have persisted over two hundred years.
Ultimately, We the Sovereign People enforce the Constitution over the six-year electoral cycle.
Maybe that is the nature of our, or perhaps any, written Constitution; but yet, perhaps the courts are authorized to plug at least the most glaring gaps. A century and a half ago, the French political observer Alexis de Tocqueville noted the unique position of the Supreme Court in the history of nations and of jurisprudence.
This power of "judicial review" has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a "living Constitution" whose broad provisions are continually applied to complicated new situations. Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people.
Most of the specific provisions creating rights, however, have fared poorly.
based on 73 review