Friday, November 30, 2007

Constitutional interpretation

I wrote a post about this topic a few weeks ago, asking to what extent a new political era necessitates alterations in interpretations of the Constitution. While judicial conservatives read for literal statements, judicial liberals have a more flexible reading. The argument centers around whether laws written so long ago can be applied in the present day. Can we assume that the founding fathers WOULD HAVE written the laws this way, had they known the situation today?

In response to Peter's post, the "legality" of cases such as Roe v. Wade is really a matter of opinion depending on how closely one reads the Constitution. Like I wrote above, times have changed since the Constitution was written, and whether the same wording can apply today is the debate I think you questioned. It seems like you are a judicial conservative since you argue that cases like RvW were decided on "perceived rights." That right is the "right to privacy," which can be applied to every Amendment (1st Am. is "privacy of beliefs," 3rd Am. is "privacy of the home," etc.).

That so many cases were ruled on interpreted rights such as that of privacy may suggest that there was a trend of the Supreme Court toward judicial liberalism in those times. Sandra Day O'Connor, who became part of the SC during Reagan's presidency, was perhaps one of the contributors to this trend. She was "soft on abortion," which was likely an important factor in the passing of Roe v. Wade.

Julie Zhao


Peter said...

The first and foremost thought in this discussion should be that the courts are unelected and completely unaccountable to the public, they hold their jobs pretty much for life. In recent times politicians have just been trying to "pack" the courts with their constituents so they can pass their agenda through. This dilutes the power of the court, which actually has no real power just moral authority. It only has power because people listen to the opinions, if the people believe that they messing with their rights then they will stop listening and those very important rights, like abortions, will no longer be under governmental protection.

There are definitely rights in the Constitution which are not enumerated (i.e. privacy) but how do we decide what those rights are? Who should get to decide whether the states and federal governments are not able to infringe upon them. At least in my opinion a woman does not have the right to abort a baby the day before it is born, the elected officials must be able to make laws to make this illegal just as they have for women who kill their babies the day after they are born...but if the right to an abortion exists at what point in the pregnancy does the state's interest in the health of the baby overtake the woman's right to choose? There needs to be compromise, but who should make these compromises. Should the elected officials, who if the public decides they are not working in their interest can get rid of them with a vote and with another vote elect someone who can remedy the situation? Or should the compromise be made by Supreme Court who are not directly elected by the people, have the job for life and whose opinions can not be changed easily by another vote? I would go with the more democratic body in this one. Shouldn't the people decide on the issues that the Constitution does not cover and where case history is not absolutely clear?

I would like to rephrase my previous post and change "judicial conservative" and "conservatism" to "judicial restraint." I had a discussion with my brother on this point and we decided that "restraint" was a much more apt term.

-Peter Lubershane

Jacob Roberts said...

Your comment about how the founding fathers may have written the constitution, had they known about the world today, reminded me of a South Park episode that illustrates a point quite well.

Relating more to the Iraq War than constitutional interpretation in general (sorry), this episode talks about how much foresight the Founding Fathers must have had to design a country in such a way that half of it can protest, while the other half takes a controversial action (going to war, making abortion legal, ect.). That way, the US can do whatever it wants while at the same time looking as if it doesn't want to, thus keeping it's integrity. I find this an interesting interpretation of how we appear to the rest of the world, and while obviously the founding fathers never intended it to work this way, and the US certainly has very little integrity left, this dynamic between liberals and conservatives does become prevalent starting in the late 20th century.

Also, I know we are all stressing about the exam, so a little laugh wouldn't hurt:'m-a-little-bit-Country.html