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constitutional interpretation

The problem of interpreting the Constitution and framer's intent is a constantly permeating and troublesome question in the minds of Supreme Court Justices, judges, prominent politicians, and policy makers alike. It is a problem that has been pondered for years and years in the courtrooms and on paper with no real conclusion. One such essay arguing this dilemma is "How Not to Read the Constitution" by Laurence H. Tribe and Michael C. Dorf, who explore the questions "Is reading the text just a pretext for expressing the reader's vision in the august, almost holy terms of constitutional law?" and "Is the Constitution simply a mirror in which one sees what one wants to see?" (Tribe, 49). While Tribe and Dorf begin their article with a seemingly unbiased opinion on the subject, by the end of the essay it is quite clear that the authors believe in the United States Constitution as a living document which is vulnerable to interpretation and changes with the times. There is much research citing evidence which both supports and argues against the idea that the Constitution can be freely interpreted to adjust to modern society. Neither of the two sides have very solid, concrete arguments. The supports


Both arguments are highly disputable because they each have their advantages and disadvantages. Neither side is "without it warts" as Justice Scalia is fond of saying (Singer 15). The non-originalist point of view is widely accepted in society, but that still does not mean that the originalist point of view is incorrect. Supporters of the living Constitution say that the Constitution is vague, but they just might not fully understand the original intent of the framers. Even though the framers could never comprehend modern issues and technology, the Constitution gives enough information to decide these cases. This is the main problem with the ongoing argument about whether or not, or how the Constitution should be interpreted. As one can see from above, there is a valid response against each argument. This topic will continue to be discussed for some time to come without resolve, until it eventually becomes invalid to even discuss it.

If judges are given the right to interpret the Constitution as they please, this is insinuating that their opinion on what the Constitution is saying is better than the original framers; that in some way we are more enlightened in this day in age than they were over 200 years ago. In some ways this statement is very true. For example, we are more technologically advanced, much more politically correct, and we have had those 200 some years to look back on and see what mistakes were made. The only problem with all of this is that one would be assuming that things have gotten better since then, which is not necessarily a true statement. "[The idea that societies get better] is not the attitude of people who thought that we needed a Constitution in general and a Bill of Rights in particular. They understood that societies do not always get better and better. They can also rot" (Singer, A5). On the same note, who is to say that the morality of society has grown better? Tests of morality, such as abortion for example, would probably not have been within the moral compass of those who wrote the Constitution. Just because it is morally in lines with a few judges today who can make it legal, does that mean it is all right? This is a tough question to answer because if a judge is given the right to interpret the Constitution, he or she will eventually be forced to make a major moral decision. "Although nonoriginalist theories posit that the Constitution must evolve to reflect the changes in society's 'fundamental values,' they cannot offer a principled distinction between those values that merit inclusion in the constitutional scheme and those that do not" (Murphy, 13).

are all very porous and can be easily attacked by the other side. Therefore, there is no right answer to the question of Constitutional interpretation.

One of the main arguments Scalia makes is that "...originalism has its imperfections, but when compared with the non-originalism alternatives, it comes out as a 'lesser evil'" (Murphy 16). In this, he is simply stating that neither idea is fully flawless, but that after one weighs the pro's and con's of both sides, originalism comes out on top. There are a few arguments for original intent which would seem to point to this conclusion.

One of the most fundamental supports for the originalism point of view is that there simply is not that often a reason to interpret

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Approximate Word count = 2264
Approximate Pages = 9 (250 words per page double spaced)


  

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