Free «Explaining the Originality and Living Document Theories of Supreme Court» Essay Sample

A Judicial review is the power of a supreme court to slay a law passed by politicians. If the congress or the state legislature passes a law that breach the constitution in any way, the Supreme Court hold the supremacy to overrule it. The term judicial interpretation refers to the theory that defines how the judiciary ought to interpret the law. Judicial restraint is the theory that limits judges to only strike down unconstitutional laws. The other theory is the judicial activism that defines a personal or political influenced judicial ruling.
    The living constitution argues that the constitution changes like a human and its dynamism should be considered. They go ahead and demand that the constitution be treated in a human way. A statement will have different meaning at different times. The constitution must therefore, be analyzed and applied according to what it means today. Analyzed when it was written, it would have produced a whole new meaning. Those for the living constitution argue that some documents are too old to apply to today’s society. These documents may have been written by different people with different intentions. They view the constitution as a living document and recommend a constitution which adapts and is flexible. I support this debate because everything is changing. In the past, people used snail mail as their main form of communication. Today, we have a variety of contemporary channels of communication. We can send emails or use mobile phones today. (Gerhardt, 2000) Laws touching on communication would have been written with traditional ways of communication. Relevant changes would be needed when interpreting such a law. I support the living document because the world is changing with both people and technology evolving. New problems have come up. They were previously not touched on in the constitution. New problems have aroused and old ones got solved. The new problems need to be tackled as well. Therefore, new changes in the interpretation of the original document can be put into place. Of course, the constitution should be used as the guiding principle. These guiding principles are used to make new judgments. There is nothing wrong with a constitution that is adaptive to the modern realities. After all, the future will certainly be different from today. Laws applicable now will be inapplicable then.
    A bad law may have been passed in the past. Probably, the impacts were not felt. Today, these laws can haunt us if applied. If originalism is strictly followed, these laws suffocate instead of protecting all the people. It is only by living document that a change can be amended in a bad law. Some have waved off the originalism as unfair and a conservative idea to restore past formulas. These formulas may pose more danger to the people of today. Some farmers may have come up with an authoritative constitution that is pure dictatorship to our time. Their text should be interpreted according to the modern issues. However, with non-originalism, judges can handle new issues that have come up. For instance, racial discrimination and gender roles need special attention. Some laws oppress only a specific group of people in the society. Given the mandate to interpret the law with these victims in mind, judges can make fair rulings. This does not change the intention of the law, which is to protect all.
    On the other hand, originalism details that the original constitutional interpretation should be up held. The content and the meaning of the constitution should remain as it was when written. The originalism supporters campaign for the intent of the writers to be considered. This is because they understood the constitution when they wrote the law. These writers had spent time and resources to come up with these laws that have ruled since then. This constitution has shown wonderful results over time. It is only fair then that its originality be preserved. Unfortunately, some judges may take this as a loop hole. They may twist the law to mean whatever they will. If the law keeps changing, people will tend to lose faith in it. A nation that has no faith in its constitution is not good.
    The advantage of originalism is justice. A law has the same meaning no matter who, when, or what is being considered. No one can get a chance to alter it although it does not favor them. Law should be strict and able to stand the test of time. That is what makes a law what it is. It is pointless to create laws only to keep amending them. If we keep changing them, there is no apparent reason why we should call it a law in the first place. Original constitution writers had no experience with modern technology. It is best not to guess what the constitution may decide about these issues. The constitution would therefore be speculating if it attempted to identify what they would have said about the matter.
    Judges are bestowed with a new role that involves making laws. Their only law should be to interpret the law and enforce it. Not alter it. Originalism is viewed by opponents as rigid and inflexible. Even with the cold title, it preserves court’s special authority in the state. Its rigid and inflexible nature makes it reliable. It is unchanging. Given the power to amend the law, different judges will give different meanings to same law. Judges should remain as neutral as possible in their rulings. With the power to alter results, they can impose their own feelings in the cases.
    The constitution should not let a generation to rule according to their passions. If we started messing with the constitution, soon, there will be none left of it. The government should be accountable to its citizens. They ought to protect the constitution from the powerful few who can access the constitution. The constitution limits different institutions and individuals to their duties. These same people take an oath to protect it. Not to change it they should not change the constitution in their benefit or opinion. The constitution needs to remain unchanged as it specifies how these officials conduct themselves. The constitution was professionally made to protect the liberty of people and this intention must prevail. With the go ahead to change, the constitution may stop being consistence after some time. Once it becomes inconsistence, it loses its reliability in measuring legal appropriateness. Changing the meaning of a law is no different from changing the law itself. No matter what living document supporters call it, changing the meaning of law undermines it. An unstable law cannot govern all the people efficiently and equally. Once a living document, the constitution lacks substantiation. (Huscroft & Miller, 2011) It cannot clarify a given opinion on certain issues. With the living document freedom, the constitution loses its meaning. The court can therefore formulate its own points of view on matters.
    In the past, they formed laws to govern their times. Years later, we cannot struggle to fit into the same guidelines. We need to make our own assumptions on the meaning of the constitution. Their judges lived in their time. In our time, our judges live with us. Consequently, I think it is okay to let them apply the constitution in accordance to our time. Some problems handled in the constitution have no relevant any more. These barriers may have been prominent then but not anymore.

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