Political Science 374 - 11-24 - Judicial Constitutional Politics.docx

| Page Political Science 374 24-Nov-09 Judicial Politics in American Culture Original Intent (Clarence Thomas) Interpreting the Constitution as it was intended to be interpreted by the drafters. This method supposedly provides an extra sense of stability in the law. Use the words and the words alone You emphasize the meaning of the words at the time the framers wrote them. Textualism (Antonin Scalia) Primacy must be afforded to the text and the structure of the document when being interpreted. Scalia?s beliefs of the role of a judge: 1. Analyze and adhere strictly to the words of the text, be it of a Constitutional or statutory nature. If necessary, look for the critical, structural principle that is found within the text. 2. Legal Traditions Original Meaning Colonial Practice Liberal Principles (Thurgood Marshall; William Brennan) The words of the Constitution need to be interpreted as necessary for the social facts of the time. They and others like them tended to show great deference to situations in the economic realm and the justices needed to make things right for human dignity and liberties. Both are considered to be judicial activists. Brennan called his beliefs Organic Individualism The genius of the Constitution does not rest in the static meaning of the 1790s but its ability to cope with current problems and needs. The text helps us cope with our times and not just the times in which the document was written. Although the Constitution is a structuring text marking out the grounds of government, it is a visionary document that demands more democracy and more respect for human dignity. Judges will overlook the structure of government to look at the case in terms of the well springs of our democracy. ?The demands of human dignity will never cease to evolve.? The Evolving Constitution was Thurgood Marshall?s article during the bicentennial celebration of the Constitution He argued that the focus of the celebrations should be about the struggles of the document throughout the duration of its life rather than the turbulent times that surrounded its birth and adoption. He emphasized that the Constitution was merely a product of its time and the Constitution that we utilize now (even though it is the same one) is a product of our times. The document itself lies dead in the National Archives but our views towards that document keep it alive. He believed that the Constitution was a living document that was like a tree where the branches were growing out towards an egalitarian end for all citizens of the United States.