Philosophies of Original Intent and Flexible Interpretation - Term Paper Example

 Philosophies of original intent and flexible interpretation Introduction Judicial activism refers to an occurrence where judges deliver rulings that pertain to considerations which are always political or even personal. These rulings are based on approaches that the judges take to interpret the constitution. This paper will focus on these approaches which are philosophies of original intent and the flexible interpretation. The philosophy of original intent is where judges deliver their rulings considering what was actually aspired in the event of writing the constitution. It tries to get to the bottom of the key role to be played by the relative clause in the constitution. On the contrary is the flexible interpretation where the ruling is delivered despite the constitution requirements, and this has been explained by some scholars as a response in time to time changes and events (Singer, 2009). Usefulness of individual approaches These two approaches have their relevance and appropriate adoptions and determining which one overshadows the other is quite of a task. Nonetheless a preference is inevitable. It is important to note that each of this approaches have their merits. To begin with, the philosophy of original intent commonly referred to as “originality” helps govern the judiciary. This is to mean that the judges cannot make decisions by their own virtues to manipulate rulings but follow the expected communication by the constitution (Lamb, 2002). This approach provides for clear guidelines that must be adhered to and guarantees no extension or modification of any nature by any means. When using this approach it is more straight and simple. This is a plus since complicating the meaning or bending is not allowed. It can also be considered static and changing the interpretation may not be acceptable and need be, that would call for an amendment which is done by the lawmakers. Originalism allows for reliance of a people on their constitution that governs them since manipulation is limited. Ultimately we find that this approach imposes adherence since in the event of a happening, the outcome is as good predictable. This approach is very much celebrated when it comes to capital offences since rigidity of the approach enables the judges to deliver appropriate rulings (Singer, 2009). Importance of the philosophy of flexible interpretation; Flexible interpretation approach is also merited to various situations that originality becomes a shortcoming. It is very useful when handling contentious issues that if left to the government oppression may emerge. Many are times when a country has divergent opinions in relation to the constitution and the Supreme Court often steps in fill the gap and gives direction. The world is characterized by dynamics; therefore it is equally important to have the flexible approach to incorporate and address dynamic effects by the constitution. This approach greatly intercepts when originality becomes too harsh and may yield to a constitutional crisis, which is not to be tolerated by a people. Therefore, amicable solutions are often yielded by flexible interpretation. It also becomes inevitably important when the written laws fail to address a certain issue or issues. This is attributed to the fact that written law cannot incorporate everything. Some that are not incorporated needs this approach (Singer, 2009). Comparison of the approaches From the above arguments that I have brought forward, it clearly shows that in these two approaches, the usefulness of one translates to the shortcoming of the other approach. It can be therefore presumed that the latter, which is flexible approach, has more shortcomings than the philosophy of original intent. This gives me no choice but to personally the approve philosophy of original intent as a better approach. In spite of agreeing more with it, I also have to add that time and again, though not regularly, the flexible interpretation has to be adopted for it its usefulness is associated with rather rare issues and “certain” circumstances. Examples of Justices on philosophies adoption In the recent past and also in the present several justices have come out strongly in favor of and against either of these two approaches. To begin with are “originalists”. I believe that among originalists, Antonin Scalia cannot go unnoticed. This is one currently sitting justice who has even defended his stand on “originalism” by saying he delivers judgment after interpretation of the constitution by common “sense”. Also in that capacity was William H. Rehnquist, a former justice who had three principles that drove him to philosophy of original intent approach. These principles were history, literalism and absolutism. Oliver Wendell Holmes is an example of those who were against the originalism. This was because he claimed you cannot get into someone’s mind to get what he meant it the textual concept. This provided him a reason to base his interpretation on the flexible interpretation philosophy. In Australia, we had justice Kirby who demanded interpretation of the constitution as a “living document” with a “text set free” from subjective intentions of its framers (Schubert, 2004). Cases to show different approaches In a case that Justice Scalia joined the dissent on, to overturn a ruling from a lower court to re-impose a death penalty can exquisitely illustrate the philosophy of original intent that he adopted. This was the case of Williams v. Warden Taylor where Williams petitioned a case of robbery and capital murder. The initial ruling on the case was a death sentence. In the petition, termed as “habeas corpus proceedings” the presiding judge overruled the death sentence and attributed the failure to the evidence. It was just after the ruling that we see later, the death sentence come into being and this was an effort by the Supreme Court and Justice Scalia joined the dissent on the case. This shows that his interpretation was based on originality of the constitution which in this case was the Antiterrorism and Effective Death Penalty Act of 1996 which he enacted to the latter (Schubert, 2004). One case that can be used to show Holmes's philosophy is his dissenting opinion in the Lochner v. Newyork case. It is regarded as his most famous opinion with regards to the philosophy of flexible interpretation. In Lochner v, Newyork case Holmes disagreed with many over the duration that a baker carried out his duties. The Fourteenth Amendment provided that no state is to "deprive any person of life, liberty, or property, without due process of the law". He dissented to this and claimed that, in the baker’s personal opinion he was not deprived of any liberty but working the long hours was his own preference. He also criticized the government work regulations that did not auger well with their economic theory. This elaborates how he interpreted the law with personal considerations hence a flexible interpretation of the law to deliver a ruling (Schubert, 2004). Discussion We have seen through individuals and cases and can now condense all the information into a conclusion. By virtue of usefulness and effect of adoption of the two approaches, it is important to note that all these approaches are needed. Just like different leadership skills are to be adopted at different times, it applies to these approaches. This calls for timely and relative application of each of the approaches for efficiency in attaining the rule of law. References Jackson C. American prospects magazine, June 29th 2007 edition. Lamb C. M & Halpern S. C. (2002), Supreme Court activism and restraint, illustrated edition Lexington books. Schubert G. A, (2004) Judicial Policy Making, Scott, Foreman: University of Michigan Singer N. J. (2009) Statutes and Statutory Construction, Volume 3, West Group. Official Website, http://www.usgovinfo.com /Judiciary. O'Neill J. G., (2005) Originalism in American law and politics: a constitutional history, JHU Press, Read More