How can we escape this predicament? Living constitutionalists believe the meaning of the Constitution is fluid, and the task of the interpreter is to apply that meaning to specific situations to accommodate cultural changes. So it seems we want to have a Constitution that is both living, adapting, and changing and, simultaneously, invincibly stable and impervious to human manipulation. Whether originalism promotes the rule of law better than living constitutionalism depends in large part on the specific content of the original meaning. The Living Constitution. This doesn't mean that judges can do what they want. The common law is a system built not on an authoritative, foundational, quasi-sacred text like the Constitution. Retrieved from https://papersowl.com/examples/the-strengths-and-weaknesses-of-originalism/. [19] See, e.g., Lawrence v. Texas, 539 U.S. 558, 562 (2003); Obergefell v. Hodges, 135 S.Ct. Originalism. Make sure your essay is plagiarism-free or hire a writer to get a unique paper crafted to your needs. [4] Proponents of Originalism argue, among other things, that Originalism should be the preferred method of interpretation because it binds judges and limits their ability to rule in favor of changing times. [23] Justice Kennedy marked throughout his opinion that the history of marriage is one of continuity but also change.[24] Justice Kennedy went on to assert, . But when confronted with the difficulty, and indeed the inappropriateness, of trying to read the minds of the drafters of the Constitution, the advocates of originalism soon backed off talking about original intent, and instead focused on the original meaning of the words of the Constitutionan endeavor we now call textualism. That is an invitation to be disingenuous. The Living Constitution, or judicial pragmatism, is the viewpoint that the United States Constitution holds a dynamic meaning that evolves and adapts to new circumstances even if the document is not formally amended. Borks focus on the purpose of the Fourteenth Amendment defines original meaning in a way that would make originalism hard to distinguish from living constitutionalism. There have been various justifications for abiding by a centuries-old Constitution. [11] Likewise, he further explains that Originalisms essential component is the ability to understand the original meaning of constitutional provisions. [15] In his dissent, Justice Scalia combined Originalism and Textualism to combat the majoritys ultimate conclusion. Once we look beyond the text and the original understandings, we're no longer looking for law; we're doing something else, like reading our own values into the law. I am on the side of the originalists in this debate, primarily because I find living constitutionalism to be antithetical to the whole point of having a constitution in the first place. On Originalism in Constitutional Interpretation | Constitution Center Justice Scalia modeled a unique and compelling way to engage in this often hostile debate.

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