Pros and Cons Originialism

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  • Created by: lilya
  • Created on: 16-10-23 10:13

Pros and Cons of Originalism

Advantages

  • Originalism reduces the likelihood that unelected judges will seize the reigns of power from elected representatives.
  • Originalism in the long run better preserves the authority of the Court.
  • Non-originalism allows too much room for judges to impose their own subjective and elitist values. Judges need neutral, objective criteria to make legitimate decisions.  The understanding of the framers and ratifiers of a constitutional clause provide those neutral criteria
  • Lochner vs. New York (widely considered to be a bad non-originalist decision)
  • Leaving it to the people to amend their Constitution when need be promotes serious public debate about government and its limitations.
  • Originalism better respects the notion of the Constitution as a binding contract
  • If a constitutional amendment passed today, we would expect a court five years from now to ask what we intended to adopt. [Can the same be said for a court 100 or 200 years from now?]
  • Originalism more often forces legislatures to reconsider and possibly repeal or amend their own bad laws, rather than to leave it to the courts to get rid of them.

Disadvantages

  • The framers at the Convention in Philadelphia indicated that they did not want their specific intentions to control interpretation.
  • No written Constitution can anticipate all the means that government might in the future use to oppress people, so it is sometimes necessary for judges to fill in the gaps.
  • Intentions of framers are various, sometimes transient, and often impossible to determine.  Text is often ambiguous and judicial precedents can be found to support either side.  In such cases, why not produce the result that will best promote the public good?  It's better than flipping a coin.
  • Non-originalism allows judges to head off the crises that could result from the inflexible interpretation of a provision in the Constitution that no longer serves its original purpose.  (The amendment process is too difficult and cannot be relied upon to save us.)
  • Brown vs Board of Education (on originalist grounds, it was decided incorrectly).
  • Originalists lose sight of the forest because they pay too much attention to trees.  The larger purpose--the animating spirit--of the Constitution was the protection of liberty, and we ought to focus on that
  • Nazi Germany: Originalist German judges did not exercise the power they might have to prevent or slow down inhumane programs.

Evaluation

If the Constitution is law, then presumably its meaning, like that of all other law, is the meaning the lawmakers were understood to have intended.  If the Constitution is law, then presumably, like all other law, the meaning the lawmakers intended is as binding upon judges as it is upon legislatures and executives.  There is no other sense in which the Constitution can be what article VI proclaims it to be: "Law...." This means, of course, that a judge, no matter on what court he sits, may never create new constitutional rights or destroy old ones.  Any time he does so, he violates not only the limits to his own authority but, and for that reason, also violates the rights of the legislature and the people....the philosophy of original understanding is thus a necessary inference from the structure of government apparent on the face of the Constitution ROBERT BORK

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