US Supreme Court Flashcards
What is originalism?
• Originalist approach is interpreting the meaning of the constitution as it was intended to originally have meant when it was first written. Originalists don’t believe in interpreting the text to adapt to social change
o DC v Heller – Scalia ruled that there should be no ban on hand guns because he interpreted the 2nd amendment as it was originally intended to allow for the use of handguns as they would have been allowed when the 2nd amendment was written
Why is originalism incompatible with many of our values
• Many decisions we value are incompatible with originalism
o Limits social progression and adaptability of the constitution with a changing socio-political environment
o Roe V Wade was the landmark case which allowed the right to an abortion through the right to privacy – this decision never would have been made if an orginalist approach was taken
o Miranda V Arizona – Miranda rights
o Loving V Virginia – inter-racial marriage etc.
Why is the originalist approach controversial
• No agreed form of originalism – as Elena Kagan stated, we are all originalists
o Lots of variation and disagreement on who has the correct stance
o Scalia understands it as the original meaning, others believe we should interpret it through its original intentions
o DC v Heller – both Stevens and Scalia originalists but came to 2 different results
o Gonzales V Reich – Thomas descented, Scalia agreed, both originalists
What is the living constitution (LC) approach?
• Living Constitution approach takes a more flexible interpretation of the constitution which incorporates modern adaptation and norms
o Warren: “evolving standards of decency” – looking at how the text should evolve to fit our society
o Griswold V Connecticut is the most famous case of this – prevented State’s making laws which prevented counselling of planned parenthood because it infringed upon a “penumbra” of rights, including the 1,3,4 and 9th – together created the right to privacy
Why does L.C approach allow Judges to legislate from the bench
• Scalia: the unchecked judiciary is “day by day, case by case, designing the constitution”
o Alex Locay stated the Supreme Court created “a new found right; the right to privacy, one which the Founding Fathers never intended”
o Griswold v Connecticut case created a standing precedent “stare decisis” which affected huge cases – Roe v Wade was a massively controversial case, and many criticised the Supreme Court for setting the precedent to allow this
o As an unelected body with tenure, the ability to create rights for their own desire means the Supreme court can become tyrannical
LC approach means Judges cite personal opinion
o Lochner V New York – decision ruled that the Due Process Clause implies a right to freedom of contract – states cannot set laws. This was not however explicitly in the text
o Harlan dissented – 10th amendment supersedes these claims – we should not allow Justices to amend through interpretation when we have amendments
o Overturns test of time and undermines the constitution
