How would you interpret the constitution?

Constitutional Analysis How would you interpret the constitution? • The State of Minneforniahas rules that govern its elections. • The general election in 2018 will be on Tuesday, November 6. • In order to run for Congress, a candidate must file a petition with Minnefornia’sSecretary of State 60 days before the election. I • f the candidate files the petition and meets the Constitutional requirements for office, the Secretary of State will put his or her name on the election ballot. • You will act as the Secretary of State, and must decide whether each candidate’s name will appear on the ballot. The Constitution says that people who want to serve in the U.S. House of Representatives must be 25 years old, have been a U.S. citizen for 7 years, and live in the state where they are elected. Specifically, it says: The U.S, Constitution: Article 1, Section 2, Clause 2 No person shall be a Representative who shall not have attained to the Age of twenty five years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Constitutional Analysis How would you interpret the constitution? What can you use to help you decide? • The words – their definitions • History – how elections have been handled in the past • Consequences – what will happen as a result of their decision • Purpose or intent – why was the rule or law written that way in the first place • Precedent – how have other courts and judges decided similar cases

Constitutional Analysis How would you interpret the constitution? Candidate 1:Chad lives across the river from Minneforniain the state of Georgiassippi. He works in Minneforniaand plans to move there before Election Day. He submits the required petition to be a candidate for the U.S. House of Representatives. Will his name be on the ballot? Candidate 2: Shannon is a recent graduate of the University of Minnefornia. She turns 25 on November 5, 2012. She turns in the petition to be a candidate for the U.S. House of Representatives. Will her name be on the ballot? Candidate 3: Desiree is a college student in Minnefornia. She is 22, and wants to run for the U.S. House of Representatives. She believes that the rule that you must be 25 is unfair, and that the world has changed a lot since the Constitution was written. She thinks that there should not be an age limit for public office. She turns in the petition to be a candidate. Will her name be on the ballot?

Constitutional Analysis Reflecting on your interpretations • Many people—judges, legal scholars, political leaders, and citizens—disagree about the best way to interpret the different provisions in the Constitution. Two major competing approaches exist: • Some “Originalists” argue that the document should be interpreted according to the original intent of the people who wrote it in 1787 (often called “the Framers”), while others—including Justice Scalia—argue that it should be interpreted according to the original understanding of Americans when it went into effect in 1789. • Proponents of a “Living Constitution” argue that historical analyses can’t provide all the answers for modern situations and that where they don’t, judges must apply the values of the Constitution in light of modern circumstances. • Originalists criticize the Living Constitution approach because they believe it allows judges to substitute their own, personal values and desired outcomes for the will of the people. Living Constitutionalists criticize the Originalist approach because they believe we can’t tell what the Framers intended it to mean, or what the people of the time understood it to mean. They also believe that for the Constitution to endure, it must be adaptable to circumstances that the Framers could not imagine. • It is worth noting that the Constitution itself says nothing about how it should be interpreted.

Enquiry Question: How important is judicial interpretation?

Learning Objectives • To explain ‘judicial activism’ and ‘judicial restraint’ • To make a clear distinction between strict and loose constructionism • To explain the differences between the originalist and ‘living constitution’ approaches to judicial interpretation • To analyse the criticisms of and arguments for these interpretations

Key Concept Strict Constructionism • This is a political term that doesn’t have a serious meaning. Various presidents, for example, have said they wanted to appoint federal judges (including Supreme Court justices) who are “strict constructionists.” At different times in the last 40 years this term has been used to identify judges who adhered to the text of the constitution, did not invent new rights and were: against school desegregation, against abortion rights, for states rights, for the death penalty, etc. • Clearly the term doesn’t mean what it says – people who support having strict constructionists appointed to the Court do not think that “Congress shall make no law…” in the First Amendment really means NO LAW, or that the word EQUAL in the equal protection clause of the 14th Amendment really means EQUAL. A more legal and less political interpretation of this phrase is that it means being a textualist, or deferring to the actual text of the constitution – although no one is really against deferring to the text of the constitution where the text makes the outcome of a case clear.

Key Concept Loose Constructionism • Loose Constructionism is the judicial philosophy whereby the Constitution is interpreted loosely, typically reading between the lines, to extract a meaning. • When practicing loose constructionism, justices will take an issue and look at the context of it, and then at the constitution. Justices that are described as loose constructionists tend to favour Federal Government power over that of states power and rights. They tend to be labelled as liberals. • The belief that the Constitution should be interpreted in this way originates from the idea that when writing the Constitution, it was left deliberately vague so that it could be interpreted in this way, to allow it to be flexible. In addition to this is the belief that the Founding Fathers would not have known how the modern world would have looked, so wanted the Constitution to be interpreted in the present day.

YOUR TASK: • Read the article “Theories of Constitutional Interpretation”. • Decide whether you are an originalist or a non-originalist. • Justify your decision.

What do SCJ’s think about interpreting the constitution? • Justice Scalia is considered an Originalist, and Justice Breyer is a Living Constitutionalist. In the video, they’ll talk about their different philosophies and why they approach tough cases that way. • Justice Scalia will begin by talking about who he’s thinking of when he reads “We, the People” in the Constitution, and what those people thought about the death penalty. • Justice Breyer will talk about how the Constitution must last indefinitely. He will list six things judges look at in difficult cases. Write them down in the chart. He will also mention which four of those Justice Scalia prefers to consider. Write them down in the chart. • Both justices will then outline Justice Scalia’s problems with Justice Breyer’s approach. Describe Justice Scalia’s concerns. YOUR TASK: • You will now get to hear what two Supreme Court justices think about interpreting the Constitution. • The video is a discussion with Justice Stephen Breyer and Justice Antonin Scalia, filmed at the Supreme Court as part of the 2010 Leon Silverman Lecture Series. www.c-spanvideo.org/program/Intenta (watch 15:30-24:30 only)

DBQ: Document Based Questions YOUR TASK: • You will now examine which approach is better – Originalism or Living Constitutionalism. • The handout provides excerpts of speeches or writing from four Supreme Court justices and a former attorney general. • Carefully read each excerpt and answer the accompanying questions. • After reading all excerpts, you should use the chart on the handout to organize the arguments for each constitutional interpretation approach. • You should restate key points in your own words and note which document the argument comes from.

Identifying Interpretations: Roper v. Simmons • What arguments did you identify as being in favor of the Originalist approach? • What arguments support the approach of the Living Constitutionalist? • Which of these arguments were the most compelling to you? YOUR TASK: • You will now work to apply your understanding of Originalism and Living Constitutionalism by examining quotes from actual Supreme Court opinions. • Read the background information and then examine each quote. • For each, decide whether it demonstrates Originalism or Living Constitutionalism. Label each quote with an O or LC, accordingly.

Homework Application Task: ‘Judicial activism cannot be justified.’ Discuss. (45) ‘The Supreme Court should interpret the Constitution and its amendments by establishing their original meaning when they were adopted.’ Discuss. (45) Flipped Learning Preparation Task: The Supreme Court and the Protection of Rights and Liberties (Bennett p308-325) Stretch & Challenge Task Extract from Keeping Faith With the Constitution (2009) Judicial Interpretation (Chapter 2)

How would you interpret the constitution?