Scalias Interpretation Of The Living Constitution

Tuesday, February 08, 2022 4:31:29 PM

Scalias Interpretation Of The Living Constitution



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How Do Originalists Interpret the Law? [No. 86]

Constitution … was adopted more than years ago. It can be amended, but the amendment process is very difficult. The most important amendments were added to the Constitution almost a century and a half ago, in the wake of the Civil War … Meanwhile, the world has changed in incalculable ways. I disagree. If the courts are free to write the Constitution anew, they will … write it the way the majority wants; the appointment and confirmation process will see to that.

This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. I understand this to mean that those aspects of the Bill of Rights that are unpopular with the majority of the population will be eroded over time. But that is precisely what the Bill of Rights was designed to protect against. In my view, having nine unelected Supreme Court justices assume that role is less than optimal to put it mildly. And, unfortunately, there have been quite a few Supreme Court decisions over the years that have confirmed those fears.

Of course, the living constitutionalists have some good arguments on their side. Board of Education was wrongly decided. Brown held that the racial segregation of schools is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. While I believe that most originalists would say that the legitimacy of originalism does not depend on the specific results that originalism produces, there is something deeply unsettling about a judicial philosophy that would conclude that racial segregation is constitutional. Some originalists have attempted to reconcile Brown with originalism.

In my view, the most compelling approach was taken by Michael McConnell formerly a tenth-circuit judge, now a law professor at Stanford in two articles here and here. According to this approach, even if the Fourteenth Amendment was not originally understood to forbid segregation, by the time of Brown it was clear that segregation was inconsistent with racial equality.

Justice John Marshall Harlan took this position in his powerful and thoroughly originalist dissent in Plessy v. This essay will take the position that judges do shape the law, however the extent of which is contingent on our belief of what the law is. The underlying logics of public law will follow, and the tensions they raise. Lawyers and judges playing a creative role is shaping the law Our view of judges, lawyers and Parliament is dependent on our view of the law. He also argues that the judiciary merely has the power of judgment, rather than force or will, and that the judiciary depends on the other two branches to support its judgments.

In Marbury v. He says that the right answer is the only answer that can be reached by correct legal reasoning, which he argues consists of an analysis…. Corbett CJ held that this was a matter of how the statute that conferred the power was constructed. Corbett CJ suggested guidelines for how to approach this: a where the powers or functions in question are of a purely judicial nature, a court will be reluctant to conclude that the tribunal is intended to have exclusive jurisdiction to decide on the meaning of a statutory criterion.

In addition, Scalia addresses the concerns of critics when it comes to using ambiguous passages in the Constitution. In Civil law legislation is considered as the main source of law and codes are the main feature of the Civil law system. These codes differ from ordinary statutes. Civil code is written law that controls relationship between people or citizens. It is set of rules and principles that was arranged and compiled by high-level authorities. The solution of some cases is made by judges according to these codes or statutes and judge proves that decision is made according to the written law not precedents.

I Legal procedure and moral-practical discourse 1 Habermas versus Weber on legitimacy and the moral dimension of law In any legal theory the relation between law and morality is problematic. Reflecting on this link is relevant to the issue of the legitimacy of law. His concept of formal rationality of law presupposes a strict separation of law from morality. According to Weber, law derives its legitimacy not from morality, but from its formal properties. This means that the Congress or the President should follow the constitution word for word. Originalism and trying to figure out precisely what the ratified document means is the only option, otherwise you're just telling judges to govern, Scalia argued. Persuade your fellow citizens it's a good idea and enact it.

You think it's a bad idea? Persuade them the other way and repeal it.

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