While I accept that theoretically a judge should not consider extralegal factors when making a ruling, I cannot accept your premise that all judges rule as neutral arbiters who rely solely on precedent, Constitutional text, and original intent of the Framers. As with any other individual in public service, judges are still human beings, and thus bring with them their own prejudices, personal biases, and preconceived notions when taking the bench. This is not to say that they do not have the intent to try to rule neutrally, or that the oath of office taken is cast by the wayside like refuse. Rather, I purport that the very process under which they have risen to be considered for the bench is a political one, and indeed makes them a part …show more content…
In such cases, using literalism can clearly present a problem. A third idea, an approach that considers the meaning-of-the-words, tries to look only at the words in the Constitution, and no further, to interpret. This still faces the criticisms leveled at literalism of imprecise language, and those aimed toward originalism, which does not allow growth in the document. Some justices advocate using logical reasoning, creating logic-based syllogisms to draw a conclusion from a major and minor premise assumed true. The problem with such an approach stems from the possibility that one of the premises is incorrect, and if such is the case then the conclusion will be similarly flawed. Furthermore, the Constitution is not the result of one perspective or intent but of many, and the fact that there are more sources than just the Constitution to be considered (for example, the Federalist papers) means that it contradicting opinions can be located. These contradictions make relying solely on textual interpretation is problematic. It is easy to see that the legal factors involved are themselves not perfect. Since the Court is made up of human beings who are similarly imperfect, it is not implausible to suppose that the Court likewise
In the Tinker vs. Des Moines court case the judges decided for Tinker even though both arguments from the lawyers where not well made. The judge’s decision was made by who they thought they should go for even though both sides had bad arguments and made a bigger deal of this case than what it should really be.
Laurence H. Tribe and Michael C. Dorf wrote the article “How not the Read the Constitution” in an attempt to investigate the intended interpretation of the Constitution. It was commonly agreed form both wings of the American political system the wording of the constitution was vague weather left that way purposely or not. What the writers aim to state is that the Constitution was mean to serve as a guide to feature generations, and was left vague in order to reflect the continually changing American society. Other groups to this day who oppose this view, in favor of constitutional interpretation as the framers would have seen it. In order to be more applicable to society today though, It seems more appropriate that the constitution reflects
This has meant that although the words of the Founding Fathers do appear to still be relevant and present in the constitution, these words are being altered and changed- losing their original meaning and not resembling what the founding fathers wanted them to at all.
In the past, many people have tried to interpret what the Founding Fathers were really thinking when they wrote the constitution. Some say that there is Divine inspiration behind the document or that the intention of the Constitution was to control and direct us. There are many different beliefs about the intentions the Founding Fathers had while writing the Constitution. Charles Beard and John P. Roche have both attempted to define what the Founding Fathers were really up to at the convention. Beard believed the Constitution was a document written by a group of wealthy men who only thought about themselves. While Roche believed the Founding Fathers were democratic politicians who thought there was a need for change. But whose interpretation is really right?
It is often believed that the relationship between certainty and flexibility in judicial precedent has struck a fine line between being necessary and being precarious. The problem is that these two concepts of judicial precedent are seen as working against each other and not in tandem. There is proof, however, that as contrasting as they are on the surface they are actually working together to achieve one common goal.
Electing judges contradict the impartial and independent nature of the judicial system. Judges are not politicians. It is
18 Since all these principles have been described in broad terms, the flaw of the Constitution is that there is no absolute method of interpretation, thus no specification or detailed information is provided. 19 Arguably, the initial intention was not to allocate more authority to the Commonwealth. 20
In legal models, the judge makes a decision based on facts and laws without considering how the decision may impact public policies. They may also utilize previous cases that have similarities to the current case in order to make a decision. This is useful because they may interpret the Constitution from different points of views of other justices or judges which had to make a decision on a past similar case (Video Engager). The only downside to this model is the fact that judges make decisions without
Since this is an opinionated examination, I group myself as an Originalist. I trust that we ought to translate the Constitution indistinguishable today from when it was first composed. Originalism is championed for various principal reasons. To start with, it comports with the way of a constitution, which ties and restrains any one era from decision as indicated by the enthusiasm of the times. The Framers of the Constitution of 1787 recognized what they were about, shaping an edge of government for "ourselves and our Posterity." They didn't comprehend "We the general population" to be only a collection of people at any one point in time however a "people" as an affiliation, in reality various covering relationship, through the span of numerous
It would be impractical for judges to not make law in some situations as both parties in the case would not want the judge to refuse to deal with the case and they would want the matter decided. ‘Judicial decisions are important as a source of law on matters where the government is
A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. (McCulloch V. Maryland)
Ever since the constitution had been created in 1787, there have been multiple disputes on how it should be interpreted. The federalist, such as Alexander Hamilton, believed it should be interpret loosely; if it didn’t say anything about on the constitution, it never said not to do it. On the other hand, democratic – republicans like Thomas Jefferson, how thought that it should interpreted strictly; that if it doesn’t say anything in the constitution it should not be allowed.
Legal cases are generally decided upon when a judge applies the law to the facts of the case; however, the Constitution is ambiguous which means it can be comprehended differently. The way the Constitution is translated in today 's society and applied to modern laws is a responsibility that the Supreme Court justices must uptake. Many factors are believed to play a role in how exactly justices finalize and make their decision, which is why political sciences created three different models of judicial decision making. The legal model, attitudinal model, and strategic model help us grasp a better understanding of what may influence the decision making process. As stated earlier, some decisions are based on the law being applied to the facts, and this decision process is explained in the legal model. The legal model also expresses how justices, in addition to using facts and the law, can use information from previous and almost equivalent cases helping them determine their decisions. Unlike the legal model, the attitudinal model explains how justice’s policy preferences can influence their decision. This model shows how legal text of the Constitution could possibly be ignored, and instead the justices’ own opinions, just like politicians, would guide them through the decision making process. According to Unit 8 Video Engager, it is believed that the justices may take this approach due to the fact that they are entitled to a
Wolfe says that originalism is a two-fold doctrine. First, it holds that the constitution is generally intelligible and with effort its
Traditional Originalism led the court as the method of constitutional interpretation until the late nineteenth century. Judges were compelled to interpret the Constitution based on the original meaning of the provisions. The Originalism view interprets the constitution line by line exactly as the founders would have found it. Later, during the early twentieth century, progressives in the legal community proclaimed that due to the changing social environment as time goes on in the nation, the political system needed to be reconfigured. They thought that the political system needed increased national government authority and a modern administrative state. They also thought that the increased national authority and modern administrative state wouldn’t work well with the traditional Originalism interpretation of the constitution. After long political battles in and out of the court, they won the argument and the Constitution would be adapted without formally amending it. Debates were waged over whether or not the Constitution could be changed through interpretation instead of the originalist requirement of amendment, and over whether or not the Constitution was to be viewed as living. The notion of a “living constitution” was developed, and slowly set precedent as landmark cases made their way through the supreme court, and the interpretation of the constitution was put to the test.