Wednesday, May 28, 2014

Where does the Supreme Court's authority to decide whether or not a law violates the Constitution originate from?

In a speech delivered at Woodrow Wilson International Center for Scholars in Washington, D.C., in March of 2005, Chief Justice Scalia refers to this authority as Constitutional Interpretation.  In his speech he defends Originalism (strict adherence to the Constitution) as the only way to preserve the Constitution, contending that Non-Originalism allows judges to impose their own subjective and elitist decisions.  Originalism better respects the idea of the Constitution as a binding contract,he contends.


Non-Originalism, on the other hand, holds that the framers of the original Constitution did not want their specific intentions to control interpretation of the Constitution.  For, no written constitution can anticipate all the means that government might use in the future to oppress people (e.g.Brown vs. Board of Education on "original grounds" was decided incorrectly).


There are 5 sources that have guided the interpretation of the Constitution:


  • the text and structure of the Constitution

  • intentions of those who drafed and voted to ratify the Constitution

  • prior precedents (usually judical)

  • the social, political, and economic consequences of alternative interpretation

  • natural law 

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