Interpretations and debates Flashcards
What is the idea of a ‘living constitution’?
A ‘living constitution’ is the idea that the constitution should be adapted and reinterpreted on the basis of modern attitudes rather than being treated as it would have been upon the creation of the Constitution.
What arguments support the idea of the ‘living constitution’?
The activism of the Court can protect and extend rights under the Constitution that may have been eroded for certain groups over time, judicial interpretation can fill gaps in the constitution to protect the population, the constitution may be updated to modern times through interpretation which is prevented by the difficulty of amendments.
What are arguments against the ‘living constitution’?
The ‘living constitution’ ignores that the constitution is supposed to be a constant reminder of the principles of a country, any change in interpretation is motivated by ideology and politics (which the Court should be independent of), judicial activism to alter the constitution exceeds the powers of elected and accountable bodies where the Court should be a referee.
What is the concept of ‘originalism’ in relation to the Constitution?
‘Originalism’ is the belief that the Constitution should be treated as though what was written by the Founding Fathers should be strictly followed rather than altered or interpreted in an alternative manner.
What arguments support the idea of ‘originalism’ in relation to the Constitution?
The Founding Fathers arguably created a document based around a fixed view and not updated to modern ideas, judgements should be made not on subconscious or political biases but on the text of the constitution, individual liberties can be preserved within the constitution’s original provisions.
What arguments oppose the idea of ‘originalism’ in relation to the constitution?
‘Originalism’ ignores that the constitution may be flawed and require further reform (recognised by Jefferson), features may change meaning over time, many of its provisions are subjective, some rights have been developed from the constitution that are not specifically mentioned, ‘originalism’ is not a politically neutral concept (more conservative in principles).
How can Congress check the powers of the Supreme Court? (3)
Congress can check the power of the Supreme Court by making constitutional amendments to overturn the Court’s judgements, by impeaching justices who have abused their power, by altering the numbers of justices in the Supreme Court.
When has Congress overturned the rulings of the Supreme Court through amendments to the Constitution? (2)
Chisholm v. Georgia: 11th Amendment passed to overturn ruling on the powers of federal courts.
Pollock (1895): allowed a federal income tax through the 16th Amendment which had previously been ruled unconstitutional.
How can the President check the powers of the Supreme Court?
The President can check the powers of the Supreme Court by nominating federal judges, allowing them to select individuals that mirror their ideological stance and therefore changing the political balance of the Court. Means that a President’s agenda is more likely to be ruled in favour of.
What is the idea of the ‘imperial judiciary’?
The idea of the ‘imperial judiciary’ revolves around the Supreme Court making activist judgements, being unaccountable to the public/other branches of government and being a heavily politicised body.
What arguments exist that the judiciary is imperial in terms of being politicised?
Supreme Court judges are appointed on the basis of their ideological leanings and judicial philosophy rather than legal ability, the judiciary is heavily lobbied by pressure groups to make certain judgements
What arguments exist that the judiciary is imperial in terms of its impact on public policy?
The judiciary has behaved in an activist manner over many key issues such as gay marriage, abortion, desegregation, gun rights etc. which has removed the role of elected and accountable bodies in making decisions on these matters.
What evidence is there of the idea of the ‘living constitution’ intervening to protect rights where the constitution itself has failed to do so?
The 13th/14th/15th amendments to the constitution, designed to end the discrimination seen under slavery in the US, has failed to bring equal rights, leading to the Court having to make judgements to do so.
