Under Article III, Section 2 of the United States Constitution, the US Supreme Court is designated as the final court of appeal for all cases arising under the Laws, Treaties, and Constitution of the United States (U.S. Const. art. III, § 2). Although the Supreme Court’s role in determining the constitutional legitimacy of those cases brought before it is not explicitly defined, this (largely unchallenged) authority became clear during the foremost years of the republic. In his opinion on Marbury v. Madison (1803), Chief Justice Marshall noted that it was ‘emphatically the province and duty of the Judicial Department to say what the law is.’
Constitutional interpretation addresses ‘how the meaning of the constitution should be discerned, thus allowing the application of substantive constitutional law to a particular set of facts or issues’ (Thomas, 2011:1). Given the ambiguity of its language and the fact that the Constitution is a legal document written, for the most part, in 1787 under very different circumstances from today, this is a challenging undertaking and not without controversy. Indeed, the task of constitutional interpretation, and the different approaches taken by individual judges, is a major area of debate among the judiciary, the populace, and within the political and academic arenas.
The position judges adopt vis-à-vis constitutional interpretation lies at the centre of court rulings concerning constitutional law. Since individual judges will have different opinions, constitutional interpretation is unavoidably dependent on the subjective views of the judges involved, whether they be legalistic, attitudinal, or other views along Posner’s spectrum of theoretical influences on judicial behaviour (Posner, 2008). This difference in approaches has been the driver of the politicisation of the judiciary and partly explains the often fractious nature of judicial confirmations.
While there is no consensus regarding a singular taxonomy for constitutional interpretation, most scholars agree on the differentiation between the Originalist approach (sometimes referred to, supportively, as the Interpretivist approach) favoured by Supreme Court Justice Antonin Scalia, and other non-Originalist approaches (often referred to as non-Interpretivist approaches by their detractors).
This essay considers whether the Originalist approach is the only legitimate and appropriate method of constitutional interpretation in the United States today.
Table of Contents
1. Introduction
2. What is constitutional interpretation for?
3. Does Originalism meet these objectives?
4. Do other approaches merit serious consideration?
5. Conclusion
Research Objectives and Themes
This essay aims to evaluate the legitimacy and appropriateness of the Originalist approach to constitutional interpretation within the United States Supreme Court, specifically measuring its effectiveness in ensuring legal legitimacy and beneficial public policy outcomes compared to alternative judicial philosophies.
- The debate surrounding constitutional interpretation and judicial subjectivity.
- An evaluation of the Originalist framework vs. non-Originalist approaches.
- The impact of Supreme Court rulings on public policy and "culture wars."
- A comparative analysis of Majoritarian, Perfectionist, and Minimalist judicial models.
Excerpt from the Book
Does Originalism meet these objectives?
Supporters of Originalism argue that it meets the two criteria discussed above. Originalism is advocated as the philosophy of judicial restraint and objectivity, and seeks to discover and make rulings based on the original meaning, or intent, of the Constitution. Originalism, it is argued, seeks to apply the original clauses of the Constitution, with close adherence to the principle of the separation of powers. It considers the objective of strengthening public policy to be the preserve of the legislative branch and outside the remit of the judiciary.
Originalism, however, is not a singular doctrine and Brest (1980) seeks to categorise Originalists in three camps. Firstly, Textualists (of which Antonin Scalia is one) seek to apply the Constitution based upon its plain meaning. Secondly, Intentionalists seek to use historical records to interpret clauses based on the original intention of those ratifying them. Thirdly, Inferentialists adopt greater flexibility in their willingness to use codified clauses of the Constitution to infer other rights that are not explicitly stated (Brest, 1980). This essay focusses on Scalia’s approach.
With regards to legal adjudication and the separation of powers, Scalia (1989) argues that Originalism provides the greatest adherence to legal doctrine, adopting an objective approach with respect to the purpose of judicial review as intended by the Constitution. Indeed, under non-Originalist approaches, Scalia argues that ‘judges will mistake their own predilections for the law’ (Scalia 1989:863). He further argues that any other approach encroaches on the remit of the legislature and thereby, that Originalism reinforces the separation of powers intended by the Framers.
Summary of Chapters
1. Introduction: Outlines the constitutional role of the US Supreme Court and introduces the conflict between different judicial interpretation methods.
2. What is constitutional interpretation for?: Defines the primary objectives of judicial interpretation as achieving legal soundness and delivering favorable public policy outcomes.
3. Does Originalism meet these objectives?: Examines the Originalist philosophy, focusing on Scalia’s approach, and critiques its practical application and outcomes in landmark cases.
4. Do other approaches merit serious consideration?: Analyzes alternative judicial models, specifically Perfectionism and Minimalism, to determine their validity as frameworks for the Supreme Court.
5. Conclusion: Synthesizes the arguments and concludes that a Minimalist approach offers the most balanced and sustainable path for the Supreme Court.
Keywords
Originalism, Constitutional Interpretation, US Supreme Court, Judicial Restraint, Perfectionism, Minimalism, Majoritarian, Separation of Powers, Legal Legitimacy, Public Policy, Stare Decisis, Antonin Scalia, Judicial Review, Roe v. Wade, Constitution.
Frequently Asked Questions
What is the core focus of this research paper?
The paper examines whether Originalism serves as the sole legitimate method for constitutional interpretation in the United States, weighing its theoretical claims against its practical performance.
What are the primary themes discussed in the text?
The work explores judicial subjectivity, the separation of powers, the influence of judicial philosophy on public policy, and the categorization of different interpretive schools like Textualism and Minimalism.
What is the central research question addressed?
The author questions whether the Originalist approach is the only legitimate and appropriate method for constitutional interpretation, particularly when measured against the goals of legal objectivity and public policy outcomes.
Which methodology is employed in this analysis?
The paper utilizes a comparative legal-theoretical analysis, contrasting Originalism with the Majoritarian, Perfectionist, and Minimalist models as defined by scholars such as Sunstein and Dworkin.
What topics are covered in the main body of the work?
The main body investigates the objectives of the Supreme Court, evaluates the internal logic of Originalism, discusses specific case studies like Griswold and Roe, and reviews the effectiveness of alternative approaches.
Which keywords define this work?
Key terms include Originalism, Constitutional Interpretation, Judicial Restraint, Separation of Powers, and Minimalism.
How does the author evaluate the "faint-hearted" Originalism espoused by Scalia?
The author views this concept as evidence of incoherence, suggesting that it allows for subjective judicial choices that contradict the very objective of a consistent, originalist framework.
Why does the author argue that Minimalism is a superior choice?
Minimalism is presented as the most pragmatic approach because it encourages incremental decision-making, avoids creating significant winners or losers, and promotes consensus in a diverse society.
- Citar trabajo
- Roy Whymark (Autor), 2012, Is an originalist approach to constitutional interpretation legitimate?, Múnich, GRIN Verlag, https://www.grin.com/document/207477
