ETVT that the Supreme court should use a ‘living constitutional’ approach when making judgements (30) Flashcards
They need to find rights
Living constitution as founding fathers intended, a narrow focus on the text alone limits the meaning and interpretation of the document written over two centuries ago.
The constitution is a intentionally vague document and is open for interpretation from judges, therefore there will be inevitable new rights and interpretations, this is so it is able to evolve.
SCOTUS has a very important role at protecting rights in the US, and therefore is not too powerful.
Obergefell v Hodges 2015, 14th amendment protects same sex couples, Kennedy argued that the founding fathers did not know or understand society as it was today and therefore intrusted justices to protect the right of ‘liberty’ how it would mean in that time.
Roe v Wade 1972, ruling that the due process clause of the 14th amendment should enforce the right for women to have a abortion, this again allows for rights to stay relevant and protected.
They dont need to find rights
It disregards the very purpose of having a codified constitution, the framers would argue that the point of the constitution is to provide a very clear framework for legislators and the executive branch on what they can and cant do.
The idea that the constitution is living and new rights can be created undermines the point of having a codified and unentrenched constitution in the first place.
Rights could instead be protected through the amendment process, for example in 1972 the equal rights amendment would have given equal rights to all people based on their sex, despite not passing the 38 state threshold this is a far more legitimate way of ‘amending’ the constitution.
More democratic as the decision is made by 50 states and not by 9 unelected justices, tyranny of the minority.
Orignalism is not politcaly neutral
The argument that Originalism is politically neutral is also false, critics would rightly argue that supporters of originalism are incorrect that this is a politically neutral philosophy, Scalia a strict supporter of this idea did tend to stray from it when it suited him.
Justice Scalia argued that in US v Lopez 1994 there was a too broad and modern reading of the commerce clause, to argue congress could ban the possession of handguns near schools. However this decision was clearly politically motivated, it was in line with conservative values of protecting gun rights.
However in Gonzales v Raich 2004 he used a much loser interpretation of the commerce clause to argue congress could ban the use of marijuana.
Dobbes v Jackson 2022, 14th amendment has no explicit right to abortion, this is a originalist decision but at the same time overturned 50 year precedent from Roe v Wade 1973, clearly activist and politicised, 6-3 decision split down ideological lines.
Clarence Thomas used his dissent to attack previous decisions such as Obergefell v Hodges 2015.
Living constitution is not politcaly neutral
A living constitution approach has been referred to by many as ‘activist’ and judgements are based on objective grounds and not the wording of the constitution.
For example Obergefell v Hodges 2015 and Roe v Wade 1973 are heavily criticised for their broad interpretation of the 14th amendment and the due process clause, here they can be accused of making political decisions and legislating from the bench.
Unelected and unaccountable body – so not democratic.
Threatens federalism
The constitution very clearly lays out the enumerated rights for the executive and legislative branch in article 1 and 2 of the constitution, the 10th amendment states that all other powers are reserved to the states and the people, this upholds a federalist system.
Using a originalist approach is the most effective way of upholding the rights of the states.
The commerce clause for example gives congress the power to regulate interstate commerce, however in the case Gonzales v Reich 2005 the broad living constitutional approach to the commerce clause arguably decreased state power and undermined federalism.
McDonald v City of Chicago 2010 was a landmark decision that found the 14th amendment or due process clause means that the 2nd amendment right to bear arms is enforceable on the states.
Shelby counter v Holder – Originalist reading to protect the rights of states.
NFIB v Sebelius – Individual mandate is not unconstitutional under the tax and spending clause and therefore the necessary and proper clause or the ‘elastic clause’.
Living constitution doesnt threaten fedaralism
Originalist approaches do not allow for a wider view on such issues.
Commerce clause vague for a reason
NFIB v Sebelius – Neccesary and proper is very vague and tax and spending is up in the air to what it is.
