Theories of Constitutional Interpretation Flashcards
What is Originalism?
Judges should resolve issues by confining themselves to enforcing the meaning of the framers explicitly written in the Constitution
a. Only those rights expressly stated in the text or clearly intended
b. If silent on a right, then the legislature is the appropriate body
What is Textualism?
Emphasizes the actual words settled on in the drafting and ratification process
a. Not so focused on the intent, more on the words which means as definitions of the words changes so does the constitution
b. Very little recognition of unenumerated rights because judges shouldn’t be allowed to write things in
What is Process Theory?
Has an eye toward the political and legal process that the constitution is trying to protect
a. The court should decide how the constitution should evolve because they are an un-elected body and they can’t be swayed by the majority rule
b. Urge the court to defer to the legislature except when that legislature threatens a functioning democracy
What is Non-Originalism?
Judicial discretion is a good thing because by enforcing norms beyond the constitution it can evolve as needed and not be static
What is Pragmatism?
The constitution should grow and change with the times
a. Judges should carefully weigh the benefits of stability, clarity and competency as opposed to political people
b. The framers chose language that wasn’t self-defining so that we didn’t have to throw it out all the time
