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.
Inhaltsverzeichnis (Table of Contents)
- Introduction
- What is constitutional interpretation for?
- Does Originalism meet these objectives?
- Do other approaches merit serious consideration?
Zielsetzung und Themenschwerpunkte (Objectives and Key Themes)
This essay examines the legitimacy of the Originalist approach to constitutional interpretation in the United States. It explores the objectives of constitutional interpretation, assesses Originalism's effectiveness against these objectives, and briefly discusses alternative approaches (Majoritarian, Perfectionist, and Minimalist).
- The objectives of constitutional interpretation
- The Originalist approach and its strengths and weaknesses
- Alternative approaches to constitutional interpretation
- The implications of different approaches for legal legitimacy and public policy
- The debate surrounding the role of the judiciary in shaping public policy
Zusammenfassung der Kapitel (Chapter Summaries)
Introduction: This introductory section establishes the context of constitutional interpretation within the US Supreme Court's jurisdiction, highlighting the inherent ambiguity of the Constitution and the ensuing debates surrounding its interpretation. It introduces the central question of the essay: whether Originalism is the most legitimate approach. The essay outlines its methodology, focusing on the Supreme Court and utilizing Sunstein's categorization of interpretive approaches (Majoritarian, Perfectionist, and Minimalist) as a framework for analysis. The introduction clearly lays out the essay's purpose and structure, setting the stage for a comprehensive examination of Originalism and its alternatives.
What is constitutional interpretation for?: This section delves into the diverse and often conflicting objectives of constitutional interpretation within academic and judicial circles. It highlights the work of Thomas (2011) and McKeever (1995), who identify the need for legally sound rulings and rulings that benefit US public policy as primary objectives. The inherent tension between these objectives is explored, emphasizing the Supreme Court's challenge in balancing legal doctrine with pragmatic considerations for the citizenry. This section lays the groundwork for evaluating the effectiveness of different interpretive approaches by clarifying the desired outcomes of constitutional interpretation.
Does Originalism meet these objectives?: This section examines whether Originalism fulfills the dual objectives of legally sound rulings and beneficial public policy outcomes. It presents arguments from proponents of Originalism, emphasizing its commitment to judicial restraint, objectivity, and adherence to the separation of powers. However, the section also acknowledges the internal divisions within Originalism (Textualism, Intentionalism, Inferentialism), focusing primarily on Scalia's approach. It critically analyzes the application of Originalism in landmark cases like *Griswold v. Connecticut* and *Roe v. Wade*, demonstrating how non-Originalist interpretations have led to both significant societal changes and substantial backlash. The section explores the potential drawbacks of Originalism and its inherent contradictions, foreshadowing the complexities discussed in subsequent sections.
Do other approaches merit serious consideration?: This section evaluates alternative approaches to constitutional interpretation, critically analyzing the strengths and weaknesses of Perfectionism, Majoritarianism, and Minimalism. It discusses Dworkin's Perfectionism, highlighting its potential to protect minority rights but also its shortcomings concerning legal soundness and democratic principles. The section assesses the Majoritarian approach, acknowledging its democratic appeal but also its potential to disregard minority rights and legal legitimacy. Finally, it explores Sunstein's Minimalism, presenting it as a middle ground that balances judicial restraint with adaptability, avoiding the extremes of the other approaches. This section provides a counterpoint to the discussion of Originalism, offering a nuanced comparison of different interpretive frameworks.
Schlüsselwörter (Keywords)
Originalism, Constitutional Interpretation, US Supreme Court, Judicial Review, Separation of Powers, Legal Doctrine, Public Policy, Majoritarian Approach, Perfectionist Approach, Minimalist Approach, Judicial Restraint, *Griswold v. Connecticut*, *Roe v. Wade*, Stare Decisis.
FAQ: A Comprehensive Language Preview of Constitutional Interpretation
What is the main topic of this essay?
The essay examines the legitimacy of Originalism as an approach to constitutional interpretation in the United States. It explores whether Originalism effectively meets the objectives of constitutional interpretation and compares it to alternative approaches (Majoritarian, Perfectionist, and Minimalist).
What are the objectives of constitutional interpretation according to this essay?
The essay identifies two primary objectives: creating legally sound rulings and producing rulings that benefit US public policy. It acknowledges the inherent tension between these two goals.
What are the key themes explored in this essay?
Key themes include the objectives of constitutional interpretation, the strengths and weaknesses of Originalism, alternative approaches to constitutional interpretation (Majoritarianism, Perfectionism, Minimalism), the implications of different approaches for legal legitimacy and public policy, and the debate surrounding the judiciary's role in shaping public policy.
What is Originalism, and how is it assessed in this essay?
Originalism is an approach to constitutional interpretation that emphasizes the original intent or meaning of the Constitution's text. The essay assesses its effectiveness in meeting the objectives of constitutional interpretation, considering its strengths (judicial restraint, objectivity) and weaknesses (internal divisions, potential conflicts with societal changes).
What alternative approaches to constitutional interpretation are discussed?
The essay discusses three alternative approaches: Majoritarianism (emphasizing democratic principles), Perfectionism (focused on achieving ideal outcomes), and Minimalism (seeking a balance between judicial restraint and adaptability).
How does the essay analyze Originalism's effectiveness?
The essay analyzes Originalism's effectiveness by examining its application in landmark cases like *Griswold v. Connecticut* and *Roe v. Wade*, highlighting both its successes and the potential for conflicts with evolving societal values and public policy goals.
What is the role of the judiciary in shaping public policy as discussed in the essay?
The essay explores the ongoing debate regarding the appropriate role of the judiciary in shaping public policy, examining how different interpretive approaches influence the balance between judicial restraint and the court's impact on society.
What are the main conclusions of the essay?
While not explicitly stated as a conclusion in the summary, the essay sets out to evaluate the legitimacy of Originalism in light of competing objectives and alternative approaches. The reader can infer that the essay aims to provide a comprehensive comparison of Originalism and its alternatives to inform a reasoned judgment on its overall legitimacy.
What keywords are associated with this essay?
Keywords include Originalism, Constitutional Interpretation, US Supreme Court, Judicial Review, Separation of Powers, Legal Doctrine, Public Policy, Majoritarian Approach, Perfectionist Approach, Minimalist Approach, Judicial Restraint, *Griswold v. Connecticut*, *Roe v. Wade*, and Stare Decisis.
What is the structure of the essay?
The essay follows a logical structure: Introduction, defining the objectives of constitutional interpretation, evaluating Originalism against those objectives, and finally, comparing Originalism to alternative approaches. This allows for a comprehensive and comparative analysis.
- Citation du texte
- Roy Whymark (Auteur), 2012, Is an originalist approach to constitutional interpretation legitimate?, Munich, GRIN Verlag, https://www.grin.com/document/207477
