When the United States Supreme Court applies the Constitution, it defines and limits the powers of government. At the same time, the same Supreme Court is constrained by political realities when it interprets the same Constitution. This principle guides it against usurping the rightful powers of other legislative arms of government or of federal states, or from violating the rights of people through decisions that are outrageous. If the Supreme Court oversteps, the ensuing backlash would render the Court’s opinion useless. The Supreme Court has no ability to force compliance on its decisions. Its Constitutional authority is supported by the people’s cultural traditions of respect for judicial authority and the rule of law. This respect is backed by the belief that in applying the Constitution, Supreme Court Judges are not simply expressing their own views on how the law ought to be. This paper argues for the judicial activism approach and against a strict interpretation of the constitution by the Supreme Court. These arguments include: construction approach finds it difficult to interpret short and vague constitutional text compared to activism approach compared to judicial activism which enhances social justice systems; strict construction approach’s over-reliance on the framer’s intentions in interpreting the constitution, yet it is difficult to ascertain original intent f framers; the constructional approach is too Mechanical in Constitutional Making Rulings Compared to Activism Approach; and lastly, construction approach is only limited to applying the framer’s intentions in Dealing with Social Changes.
The problem of Interpreting short and vague Constitutional text by Construction Approach Compared to Activism Approach
The US Supreme Court is normally tasked to decide a huge array of cases. The problem is that the Constitutional text is short and vague, yet the Supreme Court is obliged to decide on diverse Cases. For instance, this is well highlighted in the abortion case of Roe v Wade where the Supreme Court ruled that the Constitution allows a woman unrestricted choice to have an abortion in the first trimester of her pregnancy, but at the same time allows the state to regulate or ban abortion as the pregnancy progresses. In the case of Brown v Board of Education in 1954 the Supreme Court the desegregation of public schools as unconstitutional. This is a good example of progressivism on the part of the Supreme Court, as opposed to strict construction, approaches in making constitutional rulings. To date, all are in agreement that the ruling was correct and a landmark in the development of Americas’ social justice system. It is interesting to note that the ruling of the Supreme Court that segregated schools were unconstitutional occurred at a period when they were widespread. In fact, these schools were universal at the time of framing and adoption of the Constitution on which the Supreme Court depended for its rulings.
Looking at the United States Constitution, nowhere does it mention abortion, segregation, schools, and others. Yet, the Supreme Court has to decide on Cases dealing with such matters and thousands of other topics. In Constitutional Law, it is necessary to have a constitutional Law of interpretation. However, the Constitution does not provide its own interpretation. Consequently, scholars and judges encounter enormous challenges in attempting to construct such a theory. The interpretation of the Constitution would have been made easier if its meaning was clear from the constitutional text itself. Several provisions of the constitution are vague, for instance, the clause on commerce. This clause states that Congress may regulate commerce “among several American states”. This text does not mean what it says. In the First Amendment, for instance, the constitution does not allow Congress to make a law that violates the freedom of speech. However, constitutional experts are in agreement that this constitutional prohibition applies to the President and the Courts as well, although it is not specifically stated. Therefore, there has to be a way of interpreting these words because they have no meanings by themselves.
The difficulty of Ascertaining the original Intentions of the Framers
The major struggle over the approaches of constitutional interpretation in the US has pitied those constitutional scholars and judges who subscribe that the constitution should be interpreted only according to the intent of its framers, and those who prescribe that we have to look beyond those intentions. Those who propagate interpretation to be based on the intentions of the framers are proponents of the constructionist interpretation approach of the constitution. On the other hand, those who base their interpretations on looking beyond the framer’s intentions argue for the judicial modernism approach.
For constructionist adherents, following the framer’s intents that are mandated by the structure of the constitution and restricts judges from running amok. The authors of the constitution, acting on behalf of the people, delegated powers to the federal government. However, no part of the government, including the courts, may exceed the scope of the powers that have been delegated to it, so the Supreme Court must always refer to the intent of the framers in making its rulings. The reference to the original intentions of constitutional framers is more than a legal necessity based on the structure of the Constitution. The original intent of the constitution gives a firm basis for constitutional rulings.
Constructionists’ concept of the historical intention of constitutional framers as a solid source of constitutional law is advantageous, but it is just as illusory as the notion of the text with plain meaning. First, there is a problem of the ability to render a historical judgment. By referring to “the intension of the framers”, it suggests that there existed a definable group of framers and that we can determine their intentions with a high degree of certainty. The problem escalates more when there is little evidence about the meaning of a certain clause and when there is a great deal of evidence, which is usually conflicting.
Two, even with the assumption that we understand whose intention to construct and how to do it; it is not easy to determine the kind of intention to construct. If the Supreme Court is to interpret the Constitution the way its framers intended, the first thing it should consider is to look at the framers intentions. Generally, law earlier constitutional framers in the late 18th Century community norms, and legal principles and the meaning of legal texts were sufficiently clear that they could be understood without engaging in a sophisticated process of interpretation based on historical intention. We now hold a more complex understanding of the law, one that recognizes the possibility of varying interpretations. It is therefore impossible to fulfill the intentions of framers as advocated by construction approach.
Constructional approach is too Mechanical in Constitutional Making Rulings Compared to Activism Approach
Constructionists approach to constitutional interpretation faces the problem of change over time. The search for original intent presumes that judges can achieve an understanding of the framers world and apply that understanding to their own world. But they can do neither. Constructionists presume that historical intent is fact. Historians on the hand know that an understanding of the past is always shaped by our own views. It is not possible to achieve knowledge of the past unfiltered by our understanding of the present. Furthermore, any historical understanding must be applied to vastly changed circumstances. For instance, when the First Amendment was authored and ratified it conceived the freedom of speech and freedom of press. The framers could only have in mind some idea of freedom of speech and press, literally, because speaking and publishing were the only forms of communication available.
Construction approach is only limited to applying the framers intentions in Dealing with Social Changes
The Supreme Court cannot ascertain and apply the framers intentions in dealing with social changes of this magnitude using strict construct theory in constitutional interpretation. This is because it could not have had any intentions on issues of which it could not have conceived. Instead, the Supreme Court should look more broadly for the principles motivating a particular constitutional term, a set of provisions, or the constitution as a whole. The problem with constructionists approach is that it looks too narrowly for the intention behind the provision as opposed to the way progressivisms who would give a broader examination to the intention. Constructionists suggest instead that it is possible to constrain the Supreme Court’s interpretation of the constitution through the development of principles that arise from the text.
Clauses of the due process in the Fifth and Fourteenth Amendments accords all Americans social freedom. Those who framed and ratified these clauses had some intentions about the interpretation of the clauses. We can even examine the rest of the Bill of Rights to suggest the content. For instance, liberty includes physical liberty, and the government may not take away a citizen’s liberty without a trial by jury in which the defendant is provided with right to Counsel Representation. However, the due process clauses would be meaningless if all is done is to restate the protections of the Fourth, Fifth, and Sixth Amendments, as advocated by strict constructionists.
The due process clauses may state a more general principle about the right of American citizens to be shielded from government interference. In general understanding, liberty refers to the right to be left alone to carry on one’s daily life and one’s personal affairs. Government can only invade an individual’s liberty interest when it has justifiable reasons to do so. In these circumstances, the Supreme Court can refer both to the narrower meaning, the right to a jury trial; and the broadened meaning, the right to be protected from government interference. The Supreme Court may find the broader meaning essential as it is confronted with cases that the framers could not have imagined because the technology or social conditions that present them had not yet been developed.
These constructionists’ principles present certain problems. The principle such as the right to be left alone has a weaker historical perspective attempts to establish narrower constructionist intent. Problems of historical intention reconstruction are increased when the Supreme Court attempts to determine a general understanding of a constitutional provision. It is possible to state principles at different levels of generality at which the Supreme Court sates the controlling principle. However, the problem is that every principle is developed by the Supreme Court on its own view of what constitutes a sensible reading of the provision at issue. Normally, the opinion of the Supreme Court is informed by the text, history, and subsequent interpretation. It also depends on contemporary political and social realities. The danger, here, is the problem with which constitutional interpretation started. Nothing checks Supreme Courts in formulating its views except its own good judgment and, political realities.
Difficult to apply Supreme Courts power of Judicial Review using construction Approach
The issue of how the US Constitution should be interpreted by the Supreme Court is important because the Court has power of judicial review. The US Supreme Court has the final say on interpreting what the Constitution means in most cases. It also has the final say on how it applies in a particular case. Every court, federal or state has the responsibility and authority to make decisions on Constitutional matters. However, the Supreme Court can ultimately review all of those decisions. Americans have become so accustomed to judicial review that it seems a natural, inevitable, and even a part of the government structure. It is imperative to note, however, how sweeping the power of the Supreme Court is. On matters of constitutional law, everybody including the President, Congress, state legislatures, governors, state courts, public officials, state and federal administrative agencies, and all ordinary American citizens are subject to the commands of the nine judges of the Supreme Court.
It is important to note that the power of judicial review in the US is not assigned in the Constitution itself. For instance, Article III of the Constitution states that “The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish” It further adds that power to “all Cases, in Law and Equity, arising under this Constitution” and to other categories. These law provisions are for the purpose of organization and jurisdiction. The Supreme Court is created by these provisions; however, the word “supreme” refers only “highest,” citing a place in the hierarchy but not the authority of the Court. The power to preside over Cases related to the Constitution is a grant of jurisdiction to hear certain kind of cases, but not a grant of authority to exercise Constitution review in hearing them. The provision in Article VI of the Constitution indicates that “This Constitution and the Laws of the United States which shall be made in Pursuance thereof shall be the Supreme Law of the Land”. This provision does not explain to us whether the Constitution takes precedence over other Laws of the US, that is, it does not indicate to us that the Constitution is superior to Acts of Congress. It neither shows that the Supreme Court, rather than the Congress, the President, or the states, posses the authority to conclusively interpret what the Constitution means.
Strict constructionist interpretation of the constitution by the Supreme Court is disadvantageous in many ways. For instance, the 1803 Case of Marbury v. Madison was a landmark Case whose ruling established the power of Judicial review. The Case involved many intrigues, among them, partisan politics, and a little intrigue with the law. American politics came to be dominated by two groups toward the end of the reign of President George Washington. These two parties included: the Federalist Party which controlled Congress from 1796 until 1800 under John Adams as President; and the Republican Party, which would gain a majority in Congress and elected Thomas Jefferson as President in 1800. When the federalists realized that they were losing control of the executive and legislative arms of government, they opted to consolidate their power in the judiciary. This came to pass when President Adams nominated his Secretary of State, John Marshal, to be Chief Justice. The Federalist Congress also enacted law to increase the number of lower federal judges, reduce the number of members of the Supreme Court, that is, to prevent elected Democrats from filling the vacancies and authorized the appointment of 42 new justices of peace in the District of Columbia.
President Adams nominated faithful party members to the new positions in the last days of his administration, and the US Senate confirmed them. On the night before Jefferson assumed office as President, John Marshal still serving as Secretary of State for the last month of John Adam’s term, performed the Secretary’s traditional duty of affixing the Seal of the United States to the commissions of the new judges. Marshall’s decision stressed largely the broad interpretation of the constitution, using strict construction approach to constitutional interpretation. This is because he read the provisions of the constitution literally so that government was allowed to do nothing more than what is stated explicitly in the text. This application of the provisions of the constitution in a literal fashion sends the impression that constitutional interpretation is uncreative and mechanical enterprise.
Strict construction theory of constitutional interpretation has serious flaws. Its contention that constitutional provisions are capable of objective definitions is dubious. Judges make their constitutional interpretations based on their different political attitudes and values. This determines their voting behavior in cases where they disagree. This lends credence to the argument that judges do not rule controversial cases objectively. Nor is it possible that the absolute tools of interpretation can assure objectivity. The plain meaning of the written law falls short because many words have more than one meaning.
In making the ruling, Marshal and the Court encountered a dilemma. For instance, if he failed to rule that Marbury was entitled to his commission, he would be acquiescing in an assumption of power by the executive branch, contrary to his Federalist principles and his belief in the need to assert the power of the judiciary. The Chief Justice ingeniously responded by sidestepping the controversy by claiming the power of judicial review for the Court but exercising it in such a way that denies Marbury his commission. This would not have been successful if Marshall would have applied strict construction approach that would have required the interpretation to be based on the text.
As the highest Court in the US, the Supreme Court should preside over all cases relating to the constitution and Federal laws using activism approach. Since the US constitution is written in a general manner, the interpretation depends upon individuals wielding power. Judges seated in the Supreme Court must make their interpretations in a way that describes both judicial activism and judicial restraint. It is premised upon a broader interpretation of the constitution when interpreting the rights of individual citizens. Judges practicing judicial activism should not focus much on the literal constitutional text, they can at the case and be able to decide that will best preserve the rights of citizens unlike construction approach which interprets the law as per the text. Judicial activism approach best suits in the preservation of values and beliefs of societal reform over time.
Supreme Court should keep up adopting changes that conform to the changing views of society through judicial activism. Many rulings have been successful due to the popularity of judicial activism compared to strict construction approach. It allows cases to be altered in such a way that society works today; for instance the case such as Roe v. Wade. The case of Furman v. George of 1972 is another example with features of judicial activism. Furman was on trial being accused of breaking into a home and murdering the resident. Members of the jury voted 5 to 4. The death penalty was put down for the reason that it violated the constitutional right of a citizen against cruel punishment, as stated in the Fourteenth and Eighth amendments. This ruling made the courts to re-sentence those on death penalty. They also had to determine ways to sentence crimes that previously led to death sentence. This case heralded substantial changes to the legal system. Each of the Supreme judges had their own judgment relating to the death penalty, but all concluded that it qualified as “cruel and unusual punishment”.
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