In Keith Whittington’s book, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review, he uses a quote, originally articulated by Plato, that helps explain the diametrically opposing views the judicial system faces today: And once a thing is put in writing, the composition, whatever it may be, drifts all over the place, getting into the hands not only of those who understand it, but equally of those who have no business with it; it doesn’t know how to address the right people, and not address the wrong. And when it is ill-treated and unfairly abused it always needs its parent to come to its help, being unable to defend or help itself.
The dichotomy that the judicial system encounters in deciding a legal case can be determined in one of two different views: using the “original intent” or “living Constitution” approach. This paper will discuss which approach should be used and why, while giving justifications for the given approach and how a defense would be constructed should an opponent challenge it.
[...] “What Am I, a Potted Plant? The Case Against Strict Constructionism.” In Judges on Judging: Views from the Bench. Chatham House Publishers. Rehnquist, William. 1985. “The Notion of a Living Constitution.” In Views from the Bench.: The Judiciary and Constitutional Politics. Chatham House Publishers. Scalia, Antonin. 2006. “Liberty and Abortion: A Strict Constructionist’s Views.” In American Government Readings and Cases, Sixth Edition. A.B. Longman Publishers. Scalia, Antonin. 1997. “Originalism: The Lesser Evil.” In Judges on Judging: Views from the Bench. Chatham House Publishers. [...]
[...] The major blemish he finds with originalism is “the difficulty of applying it correctly”. He states that it is very problematic to ascertain the genuine understanding of “an ancient text” (Scalia 4). Furthermore, if this process is done properly, the task “requires the consideration of an enormous amount of material and the reliability of said material”. It also demands one to “immerse him or herself” in the political realm putting all prejudices aside. “It is, in short, a task sometimes better suited to the historian than the lawyer” (Scalia 4). [...]
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