Dueling Constitutional Philosophies
•Activism vs. Restraint
•Living Constitution vs. Originalism
•Contextualism vs. Textualism
Activism vs. Restraint
• Judicial Activism:
– Courts are an equal branch of government that
should take whatever opportunities to make
policies and to accomplish appropriate
governmental functions, especially when the
other branches cannot or will not act
• Judicial Restraint:
– Courts should defer to the elective institutions of
government in making their rulings, and should
refrain from taking action except where necessary
to fulfill their role as interpreters of law
Living Constitution vs. Originalism
• Living Constitution (sometimes referred to as
“activism”):
– judges should discover the general
principles underlying the Constitution and
its sometimes vague language, amplify
those principles on the basis of some
consistent moral or economic policy and
apply them to cases
– in other words – judges should interpret the
Constitution to reflect current conditions
and values
Living Constitution vs. Originalism
• Originalism (sometimes referred to as “strict
construction”):
– judges should confine themselves to
applying those rules that are stated or
implied clearly in the actual language of the
Constitution
– in other words – judges should interpret the
Constitution to reflect what the framers
intended and what the words literally say
Two Branches of Originalism
• Textualist:
– An originalist who gives primary weight to the text
and structure of the Constitution. Textualists often
are skeptical of the ability of judges to determine
collective "intent."
• Intentionalist:
– An originalist who gives primary weight to the
intentions of framers, members of proposing
bodies, and ratifiers.
Textualism vs. Contextualism
• Textualism:
– Judges should base their decisions on the actual
language of law or a constitutional provision –
what it actually says – rather than attempting to
interpret its meaning
• Contextualism:
– Judges should base their decisions on the purpose
of a law or constitutional provision, asking what
was it meant to accomplish , rather than simply
looking at its text
Another Way of Looking at Judicial Philosophy
• Five sources that have guided Constitutional
Interpretation:
– Text and structure of the Constitution
– Intentions of the Framers/Ratifiers
– Precedents (rulings on past cases)
– Social, political, and/or economic
consequences of various interpretations
– Natural law
What’s Right for You?
• Which of the following statements best describes the
approach to constitutional interpretation that you
believe judges should follow?
– A. Judges should try apply the intentions of the framers,
as best as they can determine it.
– B. Judges should look at the words of the provision in
question and base their decisions as best they can on the
plain meaning of the language.
– C. Judges should generally follow precedent as much as
possible, looking to the text and intentions of the framers
only when the caselaw is unclear.
– D. Judges should interpret the Constitution in such a way
as to produce the decisions that provide the greatest
benefits to the nation as a whole.
– E. Judges should interpret the Constitution in a way
consistent with the approach favored by whatever
president appointed them.
Thought Questions for Discussion
1.
How do we discover what the Framers really intended? What if
the original supporters of, say, the First Amendment disagreed as
to its meaning?
2.
What if the intentions of the Framers profoundly offend our sense
of justice? For example, the authors of the 14th Amendment did
not intend to outlaw racially segregated schools, yet most people
today believe that such schools should be regarded as an
unconstitutional violation of that amendment)?
3.
Why should judges, who are not elected, decide what the
“contemporary meaning of the Constitution is? Shouldn’t these
questions be decided by elected legislators or by the people
through the amendment process?
4.
What is the “vision of our times” that judges should follow?
Should judges be free to pick any “vision”? Or only liberal ones?
Or only conservative ones?
What Kind of a Judge Would You Be?
• How did you respond to the Judicial
Philosophy assignment question?
• Are you still of the same opinion?
• If not, what caused you to change?