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Checks And Balances

.. er is that they simply could not. This being the case, it is necessary for judges to be able to use the Constitution as a blueprint, and to make decisions based on good judgment, not on laid out specific rules. Even with all of these proofs, one of the most solid pieces of evidence that leads to the conclusion that the Constitution should be used as a backbone for judges today is a direct quote once taken from James Madison stating that future generations will need to make “..useful alterations suggested by experience” (Scholastic Update, 4). One would figure that if this came from the mouth of one of the original framers, that it is the way it should be.

It could mean that they purposefully made vague statements as mentioned above in order to allow for interpretation. This is not necessarily correct, though. There is also much evidence against this way of looking at the Constitution. Some say that the Constitution should be taken very literally when relating to modern days. One of the forerunners of this idea is United States Supreme Court Justice Antonin Scalia.

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Justice Scalia has made many speeches and rulings following his belief that “..the U.S. Constitution is not a living document, changing with the times, but should be interpreted based only on the text as it was understood when it was written” (Singer A5). Justice Scalia is certainly not the only believer in this take on the Constitution, but he is one of the most prominent, modern, and not to mention vociferous opponents of the living Constitution. One of the main arguments Scalia makes is that “..originalism has its imperfections, but when compared with the non-originalism alternatives, it comes out as a ‘lesser evil'” (Murphy 16). In this, he is simply stating that neither idea is fully flawless, but that after one weighs the pro’s and con’s of both sides, originalism comes out on top. There are a few arguments for original intent which would seem to point to this conclusion. In 1845, Justice Joseph Story wrote “How easily men satisfy themselves that the Constitution is exactly what they wish it to be” (Tribe 50).

This brings up a large piece of supporting evidence, which is also the biggest problem with Constitutional interpretation, and that is that most judges use the living document strategy to read their “own values and political judgments into the Constitution” (Murphy 13). “Nonoriginalist approaches are praised because they enable judges to expand upon individual liberty by divining rights that are only implicitly granted by the Constitution. To achieve this benefit, however, a judge must depart from the text and original understanding of the Constitution; having done so, there is no reason why a judge may not just as easily contract or restrict those rights that are explicitly specified and guaranteed by the Constitution” (Singer 14). Even by the definition of the word interpretation, it is in fact, making the Constitution exactly what one wants it to be. This can be a very dangerous power to put in a judge’s hand. Political Scientist Henry Jaffa writes “One would think ..

that when Paul Revere called out ‘The British are coming’ he meant they were coming to rescue us from French Philosophy” (Jaffa 38). This quote serves the purpose to show that there are no limits to how extreme “interpretation” can get; you just need a person who has an extreme imagination. In a speech at Washington University, Justice Scalia was quoted saying: “You want a right to abortion? It’s in there! You want a right to die? It’s in there! The only criterion, apparently, is what do we care passionately about”(Singer A5). ” If judges are given the right to interpret the Constitution as they please, this is insinuating that their opinion on what the Constitution is saying is better than the original framers; that in some way we are more enlightened in this day in age than they were over 200 years ago. In some ways this statement is very true. For example, we are more technologically advanced, much more politically correct, and we have had those 200 some years to look back on and see what mistakes were made.

The only problem with all of this is that one would be assuming that things have gotten better since then, which is not necessarily a true statement. “[The idea that societies get better] is not the attitude of people who thought that we needed a Constitution in general and a Bill of Rights in particular. They understood that societies do not always get better and better. They can also rot” (Singer, A5). On the same note, who is to say that the morality of society has grown better? Tests of morality, such as abortion for example, would probably not have been within the moral compass of those who wrote the Constitution. Just because it is morally in lines with a few judges today who can make it legal, does that mean it is all right? This is a tough question to answer because if a judge is given the right to interpret the Constitution, he or she will eventually be forced to make a major moral decision.

“Although nonoriginalist theories posit that the Constitution must evolve to reflect the changes in society’s ‘fundamental values,’ they cannot offer a principled distinction between those values that merit inclusion in the constitutional scheme and those that do not” (Murphy, 13). One of the most fundamental supports for the originalism point of view is that there simply is not that often a reason to interpret the Constitution. The reason for this is because the original text of the Constitution, without interpretation, provides enough material to decide most cases. In its most basic form, the Constitution lays out all of the necessary components to make a just decision. Both arguments are highly disputable because they each have their advantages and disadvantages.

Neither side is “without it warts” as Justice Scalia is fond of saying (Singer 15). The non-originalist point of view is widely accepted in society, but that still does not mean that the originalist point of view is incorrect. Supporters of the living Constitution say that the Constitution is vague, but they just might not fully understand the original intent of the framers. Even though the framers could never comprehend modern issues and technology, the Constitution gives enough information to decide these cases. This is the main problem with the ongoing argument about whether or not, or how the Constitution should be interpreted.

As one can see from above, there is a valid response against each argument. This topic will continue to be discussed for some time to come without resolve, until it eventually becomes invalid to even discuss it. Government.


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