Tuesday, January 29, 2013

List and analyze the four most common approaches judges employ in interpreting the Constitution?

I don't know what four you'd pick as most common.  Here are mine:


  • Originalist.  This makes sense in that the Constitution is the basis of our system and so it makes sense that we should try to figure out what the people who wrote it meant when they wrote it.  Lots of drawbacks: which writers count?  Is it the writers, or the people who voted to accept it whose opinions we shold look at?  How do we determine those opinions?  Do we want to follow them anyway?

All other approaches can be pretty much evaluated in terms opposite to this.


  • Contextualist

  • Developmentalist

  • Doctrinalist

All of these are problematic because they do not stick with what the framers said and, therefore, you can argue that they allow judges (rather than legislatures or "the people") to make law.


But each of them tries in some way to get beyond the problems that I identified with the orignialist approach.

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