Thursday, January 01, 2009

Originalism v. Activism

Happy New Year to all my readers! I'd like to kick off 2009 on this blog by posting on the issue of constitutional interpretation.

"Originalism" -- "Strict Construction" -- "Original Intent" -- These buzz words stir enormous controversy in political, cultural, and legal circles. The vast majority of law schools teach an interpretative approach more in keeping with judicial activism (though tempered by precedent to varying degrees). Most judges on the bench likewise reflect an activist approach, albeit some are more activist than others. This all begs the question...

How should judges interpret the Constitution or any law for that matter?

The following is a discussion on the issue, featuring two Supreme Court Justices. One is Stephen Breyer, a man rightly regarded as a judicial activist and Antonin Scalia, who champions strict constructionism.

While it's true that the authors of our oldest laws (such as the Constitution) couldn't foresee everything and while there were disagreements even among the original authors, it is very hard to escape Scalia's logic that a judicial branch not grounded in the language and original meaning of the laws it interprets makes the judiciary a policy-making branch of government.

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