Dueling Constitutional Philosophies

1. Dueling Constitutional Philosophies Activism vs. Restraint Living Constitution vs. Originalism Contextualism vs. Textualism

2. Activism vs. Restraint • Judicial Activism: • Courts are an equal branch of government that should take whatever opportunities to make policies and to accomplish appropriate governmental functions, especially when the other branches cannot or will not act • Judicial Restraint: • Courts should defer to the elective institutions of government in making their rulings, and should refrain from taking action except where necessary to fulfill their role as interpreters of law

3. Living Constitution vs. Originalism • Living Constitution (sometimes referred to as “activism”): • judges should discover the general principles underlying the Constitution and its sometimes vague language, amplify those principles on the basis of some consistent moral or economic policy and apply them to cases • in other words – judges should interpret the Constitution to reflect current conditions and values

4. Living Constitution vs. Originalism • Originalism (sometimes referred to as “strict construction”): • judges should confine themselves to applying those rules that are stated or implied clearly in the actual language of the Constitution • in other words – judges should interpret the Constitution to reflect what the framers intended and what the words literally say

5. Two Branches of Originalism • Textualist: • An originalist who gives primary weight to the text and structure of the Constitution.  Textualists often are skeptical of the ability of judges to determine collective "intent." • Intentionalist: • An originalist who gives primary weight to the intentions of framers, members of proposing bodies, and ratifiers.

6. Textualism vs. Contextualism • Textualism: • Judges should base their decisions on the actual language of law or a constitutional provision – what it actually says – rather than attempting to interpret its meaning • Contextualism: • Judges should base their decisions on the purpose of a law or constitutional provision, asking what was it meant to accomplish , rather than simply looking at its text

7. Another Way of Looking at Judicial Philosophy • Five sources that have guided Constitutional Interpretation: • Text and structure of the Constitution • Intentions of the Framers/Ratifiers • Precedents (rulings on past cases) • Social, political, and/or economic consequences of various interpretations • Natural law

8. What’s Right for You? • Which of the following statements best describes the approach to constitutional interpretation that you believe judges should follow? • A.  Judges should try apply the intentions of the framers, as best as they can determine it. • B.  Judges should look at the words of the provision in question and base their decisions as best they can on the plain meaning of the language. • C.   Judges should generally follow precedent as much as possible, looking to the text and intentions of the framers only when the caselaw is unclear. • D.  Judges should interpret the Constitution in such a way as to produce the decisions that provide the greatest benefits to the nation as a whole. • E.  Judges should interpret the Constitution in a way consistent with the approach favored by whatever president appointed them.

9. Thought Questions for Discussion • How do we discover what the Framers really intended? What if the original supporters of, say, the First Amendment disagreed as to its meaning? • What if the intentions of the Framers profoundly offend our sense of justice? For example, the authors of the 14th Amendment did not intend to outlaw racially segregated schools, yet most people today believe that such schools should be regarded as an unconstitutional violation of that amendment)? • Why should judges, who are not elected, decide what the “contemporary meaning of the Constitution is? Shouldn’t these questions be decided by elected legislators or by the people through the amendment process? • What is the “vision of our times” that judges should follow? Should judges be free to pick any “vision”? Or only liberal ones? Or only conservative ones?

10. What Kind of a Judge Would You Be? • How did you respond to the Judicial Philosophy assignment question? • Are you still of the same opinion? • If not, what caused you to change?