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What is the best way to interpret the Constitution to ensure that rights are protected and the government is kept in check? Who has the better method, Bork (originalism) or Brennan (living constitution)? Use evidence from the article.

What is the best way to interpret the Constitution to ensure that rights are protected and the government is kept in check? Who has the better method, Bork (originalism) or Brennan (living constitution)? Use evidence from the article.

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What is the best way to interpret the Constitution to ensure that rights are protected and the government is kept in check? Who has the better method, Bork (originalism) or Brennan (living constitution)? Use evidence from the article.
Round 1: Robert Bork, Hearing before the Senate Judiciary Committee How should a judge go about finding the law? The only legitimate way, in my opinion, is by attempting to discern what those who made the law intended. The intentions of the lawmakers govern whether the lawmakers are the Congress of the United States enacting a statute or whether they are those who ratified our Constitution and its various Amendments. Where the words are precise and the facts simple, that is a relatively easy task. No one will fuss over the interpretation of a law that states "School Zone: 25 mph limit from 7am-4pm." Where the words are general, as is the case with some of the most profound protections of our liberties in the Bill of Rights and in the Civil War Amendments the task is far more complex. We have seen these cases come up throughout the esteemed history of the Court; The Necessary and Proper Clause, the Vesting Clause, The 10th Amendment, all have presented moments of doubt and confusion. It must be the job of the Court, in these circumstances, to find the principle or value that was intended to be protected and to see that it is protected. As I wrote in an opinion for our court, the judge's responsibility "is to discern how the framers values, defined in the context of the world they knew, apply in the world we know." If a judge abandons original intention as his guide, there is no law available to him and he begins to legislate a social agenda for the American people. That goes well beyond his legitimate power. This is the foundation of Originalism. The Constitution must remain an unwavering lighthouse in a sea of change. If she should buckle, the republic will collapse along with it.
Transcribed Image Text:Round 1: Robert Bork, Hearing before the Senate Judiciary Committee How should a judge go about finding the law? The only legitimate way, in my opinion, is by attempting to discern what those who made the law intended. The intentions of the lawmakers govern whether the lawmakers are the Congress of the United States enacting a statute or whether they are those who ratified our Constitution and its various Amendments. Where the words are precise and the facts simple, that is a relatively easy task. No one will fuss over the interpretation of a law that states "School Zone: 25 mph limit from 7am-4pm." Where the words are general, as is the case with some of the most profound protections of our liberties in the Bill of Rights and in the Civil War Amendments the task is far more complex. We have seen these cases come up throughout the esteemed history of the Court; The Necessary and Proper Clause, the Vesting Clause, The 10th Amendment, all have presented moments of doubt and confusion. It must be the job of the Court, in these circumstances, to find the principle or value that was intended to be protected and to see that it is protected. As I wrote in an opinion for our court, the judge's responsibility "is to discern how the framers values, defined in the context of the world they knew, apply in the world we know." If a judge abandons original intention as his guide, there is no law available to him and he begins to legislate a social agenda for the American people. That goes well beyond his legitimate power. This is the foundation of Originalism. The Constitution must remain an unwavering lighthouse in a sea of change. If she should buckle, the republic will collapse along with it.
Living Constitution Round 2: William Brennan, Constitutional Interpretation Constitutional interpretation is no easy task, and we should be highly suspicious of those who offer simple solutions to complex problems. There are those who find legitimacy in fidelity to what they call "the intentions of the Framers." This view demands that Justices discern exactly what the Framers thought about the question under consideration and simply follow that intention in resolving the case before them. It is a view that feigns purity and lack of bias over the specific judgments of those who came before. But in truth it is little more than arrogance cloaked as humility. It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions. All too often, sources of potential enlightenment such as records of the Constitutional Convention provide sparse or ambiguous evidence of the original intention. Typically, all that can be gleaned is that the Framers themselves did not agree about the application or meaning of particular constitutional provisions, and hid their differences in cloaks of generality. We current justices read the Constitution in the only way that we can: as Twentieth Century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be the measure to the vision of their time. Interpretation must account for the transformative purpose of the text. Our Constitution was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized. Thus, for example, when we interpret the Civil War Amendments to the charter--abolishing slavery, guaranteeing blacks equality under law, and guaranteeing blacks the right to vote we must remember that those who put them in place had no desire to enshrine the status quo. Their goal was to make over their world, to eliminate all vestige of slave caste. Jefferson himself suggested we remake the Constitution every twenty years, and that no future generation ought to be bound to the morals and principles of those who came before? The founders did not solve political science. The Constitution is a living, breathing document, and those who purport to believe in Originalism are masking their own live beliefs behind our veneration of the founding era.
Transcribed Image Text:Living Constitution Round 2: William Brennan, Constitutional Interpretation Constitutional interpretation is no easy task, and we should be highly suspicious of those who offer simple solutions to complex problems. There are those who find legitimacy in fidelity to what they call "the intentions of the Framers." This view demands that Justices discern exactly what the Framers thought about the question under consideration and simply follow that intention in resolving the case before them. It is a view that feigns purity and lack of bias over the specific judgments of those who came before. But in truth it is little more than arrogance cloaked as humility. It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions. All too often, sources of potential enlightenment such as records of the Constitutional Convention provide sparse or ambiguous evidence of the original intention. Typically, all that can be gleaned is that the Framers themselves did not agree about the application or meaning of particular constitutional provisions, and hid their differences in cloaks of generality. We current justices read the Constitution in the only way that we can: as Twentieth Century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be the measure to the vision of their time. Interpretation must account for the transformative purpose of the text. Our Constitution was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized. Thus, for example, when we interpret the Civil War Amendments to the charter--abolishing slavery, guaranteeing blacks equality under law, and guaranteeing blacks the right to vote we must remember that those who put them in place had no desire to enshrine the status quo. Their goal was to make over their world, to eliminate all vestige of slave caste. Jefferson himself suggested we remake the Constitution every twenty years, and that no future generation ought to be bound to the morals and principles of those who came before? The founders did not solve political science. The Constitution is a living, breathing document, and those who purport to believe in Originalism are masking their own live beliefs behind our veneration of the founding era.
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