Living document vs. Originalism judicial review.I am in some desperate need of help. I have class debates this week and need to support the living document theory of judicial review. Any help,...
Both of the previous posts are spot on, but I would also add that some historians have suggested that we can glean some sense of intent by examining the context in which the document was assembled, the legal and political traditions that informed it, and the content of the ratification debates in the states. And on the topic of judicial review, I'd argue that the original intent was actually for a federal judiciary armed with the power of judicial review. First, there is a long tradition of judicial review in the English Constitution, established by precedent. Many of the Framers admired this model. Moreover, the structure of the Constitution doesn't make sense without it- the judicial branch would be dramatically weakened. On the level of federalism, the supremacy clause is without teeth without a powerful judiciary able to rule on the constitutionality of state laws. At the Constitutional Convention itself, multiple delegates, including George Mason and James Madison, made statements that either supported the concept or logically led to the concept of judicial review. There is also the fact that Alexander Hamilton specifically referenced the concept of judicial review in Federalist 78, and that the topic was extensively debated in the state ratification conventions. So even on the grounds of "original intent," it seems obvious that judicial review is imbedded in the logic of the Constitution, and that the generation responsible for that document agreed on its importance.
You might highlight the tendency of people in politics and the public debate today to claim intimate knowledge of the "Founders' intent" when such knowledge is impossible. Context is everything in terms of the Constitution, which makes it a living document by nature.
Suppose we took the strict constructionist point of view on the right to bear arms. Under the vague terms of the 2nd Amendment, should muskets be the only legal firearms today as they were when the 2nd was written? Or to the other extreme, should tanks and machine guns be available for public purchase because it only says "arms" and we should interpret that strictly? The document was written to govern four million people in 13 states, not 308 million people in 3 million square miles and an empire to boot. Elasticity of interpretation is essential for the document and the government to function.
Under the 5th Amendment, there is no specified right for anyone to have an attorney provided for them, this was as a result of specific judicial review. To roll this back to its original form would make us less democratic. The strict constructionist viewpoint is less democratic as a whole.
Without judicial review, we might as well implement a dictatorship. The whole concept was about checks and balances, which have been seriously damaged in the last decade. You can know what the Framer's intent was when they wrote the Constitution; read Enlightenment Philosophy and the Federalist Papers. It is first and foremost a philosophical treatise on how to run a Federal government; the fact that the nation has grown since then bears little on the document's intent. Certainly there were vagaries; but understand the philosophy behind the words. The previous post regarding Amendment 2 is a good example -- since the people were the armed forces, there was no issue in having them armed with the technology of the day, pistol, rifle, or cannon. Citizens were the soldiers. However, once we had professional, government-run armed forces, the issue of who should be armed arose. Maybe we should get rid of the professional standing army, and be like Switzerland (who, after all, got their concepts of citizens being armed from us.
To expand on #2's last point, the Constitution is specifically built to be a guideline for future lawmaking. The amendment process is the tool by which the Constitution can be thought of as "living;" it is not meant to be rewritten or altered, but amended.
Prohibition is one of the best examples: in response to a moral majority, the Constitution was amended to explicitly prohibit the production, sale, and consumption of alcohol. The direct result was a massive increase all three, plus an entire criminal industry. The amendment was subsequently repealed, as both the public and lawmakers could see that it did not work and in fact had the opposite effect. All the original language remains in the Constitution to show us what we did and how we got it wrong or right. This way, we can adopt or discard new amendments based on precedent, common sense, and public opinion.
There are a number of ideas that you can use.
- The world in which the Framers lived is so completely different from our own that we cannot try to live by the ideas that they had. For example, they would have had no desire to give equal rights to black people.
- There is no way to accurately determine the original intent of the Framers. Whose original intent are we talking about? There were a lot of people who signed the Constitution. Do we know what they all believed. Even more than that, the Constitution wasn't even in effect until it was ratified. Do we know what the people who voted for ratification were thinking? Isn't their intent important?
- The Constitution was meant to be a set of general precepts. That is why so much of it is vague and it is so short. We have to fill in the blanks for ourselves.
One argument you may wish to make is that in some cases the Constitution has authorized discrimination against whole classes of people for decades or even longer. The most obvious example is slavery. Even after the abolishment of slavery, discrimination existed in other forms, which is why the Brown vs. Board of Education decision by the Supreme Court was important. You may want to make an emotional appeal (if those are allowed) by urging your listeners to put themselves in the places of people who had to live their entire lives subject to such "constitutional" discrimination.
I think the biggest point that you can refer to is the way in which society and the world as we know it has changed so dramatically that becomes almost impossible to apply a set of laws and rights to a very different context. This is one of the major issues with what you are debating. You might find an interesting parallel with the Koran, which, Muslims believe, is enshrined by God and to be followed by all peoples the world over in every time period. This has caused and continues to cause problems.
The thing that amazes me about the Constitution is that some parts of seem like they were in fact written to be interpreted. For example when it spells out the requirements for a president it says that “those who shall not have attained to the Age of thirty five Years of age” are not eligible. It doesn’t say a person should be a reasonable age. Later in the Bill of Rights words like unreasonable are used. It seems clear that if the writers intended there to be absolute clarity they easily could have spelled it out (like they did earlier in requirements for the president for example), but they intentionally left it very vague to be interpreted.
I it a back and forth debate. I think the biggest difficulty I will have is combating the arguments that there are proper methods to adapting the Constitution (e.g. amendments) so it shouldn’t be up to a few judges to adapt it and that the entire point behind a written constitution is that it is interpreted as written. Those are hard point to refute I think. I hate this course and its debates.