Originalism v. Living Constitutionalism Flashcards
What are the basic differences between the two approaches?
Original Meaning
- Courts defer to the legislatures
- amendment process (not the courts must keep it up to date)
Living Constitution
- Times change
- Judges can be wiser than the majority
- Judges can adapt the constitution
What are the basic philosophies of each?
Originalism; The Constitution should be interpreted based on what the words meant when they were written.
Living Constitutionalism; The Constitution is a document that evolves over time to meet modern needs
What are the critiques of each?
Originalism:
- too traditional
- non specific
- lack of clarity
Living Consitution:
- biases
- can devalue democracy
- potiential for misinterpretations
What are the methods of each?
Original meaning: Finding only the plain meaning, ammendments are added legally
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Living Constitution: Not bound by original meaning, judges apply their own beliefs
What images symbolized each?
Original Meaning: the judge as a referee
Living Constitution: change agent
Why is Scalia against the living Constitution approach?
The living constitution puts too much emphasis on interpretation. Scalia believes personal values and opinions would find their way into the legislation, changing what the “original” intention of the Constitution was to whatever is most favored at that time.
Why does Scalia think an original meaning approach is better?
The original meaning provides stability and prevents interpreting differences and biases.
What two choices do the American people have (according to Scalia)?
- The living constitution: letting the judges reshape the Constitution to fit current ideas
- originalism, sticking to the original meaning, and letting the people make changes through the democratic system by adding amendments.
What is the fate of the Constitution if Scalia’s approach is not followed?
He believes the Constitution will be altered past restoration: “The worst thing about the Living Constitution is that it will destroy the Constitution.”
What guiding principle does Breyer use in his interpretation?
The principle of active liberty
What model of interpretation does Breyer use?
A pragmatic model of interpretation
(a realistic and sensible approach)
What are Breyer’s arguments for his living constitution approach?
- The area of interpretive disagreement is more limited than many believe.
- Literalist judges cannot justify their practices by claiming that is what the founders wanted
- Judges who reject a literalist approach deny that their decisions are subjective and point to important safeguards of objectivity.
- The literalist does not escape subjectivity
