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Exploring Original Intent versus a Living Constitution - Essay Example

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Exploring Original Intent versus Living Constitution (20.09.11) Original intent is a legal and constitutional process by which the constitution is legally interpreted in seeking to ascertain the original meanings of specific provisions of the federal or state constitution by determining the ways in which the given provisions were perceived when the constitution was drafted and ratified…
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Exploring Original Intent versus a Living Constitution
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Download file to see previous pages For people that propagate approaches towards original intent, the very essence of ideas pertaining to the rule of law can be found by searching for the original intention in the constitution. This original intention is the very basis for differentiating between the acts of judging from the acts of legislating. Judges are bound to give rulings on the basis of what was intended by the constitution in terms of the given words. However, a large number of controversies have arisen regarding original intent in terms of the power with the Supreme Court as granted by the US Constitution. Hence, while deciding constitutional matters, the issue has often arisen whether the Supreme Court should abide by the original intent or should make attempts to interpret the Constitution in keeping with the present times. The question also arises whether the original intent was intended by the framers of the Constitution to always remain the original intent. People defending original intent hold that if judges are given a free hand in not entirely complying with the Constitution they will themselves become lawmakers. Thus it is important for judges to keep up with the Constitution instead of attempting to keep up the Constitution with present times (William, 1976). This is how the significance of original intent is determined in the present times, despite the far reaching changes that have taken place in society and value systems since the Constitution was written. The US constitution is not very lengthy and does not provide explanations or solutions for every situation. Moreover, even in circumstances that appear to be clear, conflicting rights and conflicting areas of authority and power come to the surface. It is in situations like this, when disputes arise and judges have to make interpretations of the Constitution. The constitutions of many countries are very rigid and provide for the judiciary to strictly follow its provisions, although adaptations are made sometimes in keeping with changes in technology, public opinion, political viewpoints and governments. However, the Constitution of the US has been described as a Living Constitution, partly because it can grow and be adapted to internal and external influences in being changed from one period and generation to another. All judges are not known to fully comply with the concept of original content and most do not adhere to it faithfully and uniformly. Judges attempting to use the judicial philosophy of original content are in agreement that only by applying it can courts be bound by the law instead of their own viewpoints on what is desirable. These judges believe that original content should be applied in order to conserve the spirit of democracy put forth by the Constitution. However, modernists hold that the Constitution has been purposely left vague in several areas, primarily to allow modern interpretation to supersede the old ideas as the Constitution becomes older. This is the interpretation and perception that represents the concept of the Living Constitution. It is held that the Constitution is quite flexible and has been changing the belief and values systems of people. As such, modernists do not deny the importance of originalism because they agree the historical perspective of the Constitution does have immense value. But they argue that the present needs of society are far more important than just adhering to ...Download file to see next pagesRead More
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