CommonLaw Courts in a CivilLaw System The Role

Common-Law Courts in a Civil-Law System: The Role of the United States Federal Courts in Interpreting the Constitution and Laws. Antonin Scalia

Originalist Interpretation Framers View: Not Authoritative Framers view is not authoritative, but does show const was originally understood. Original Meaning What Scalia looks for in the Constitution is original meaning, not what the original draftsmen intended (just as he does with a statute). Constitutional Law -- is not judge or framer-made law –but written law (like statutes). …

Constitutional Interpretation: Original v. Living Great Divide of Constitutional Interpretation: Original v. Current Meaning The great divide is “not between Framers intent and objective meaning, but rather that between original meaning (whether derived from Framers intent or not) and current meaning. ” Constitution: Living Document? Ascendant school of const interpretation – is Const is “living Const” – “a body of laws that (unlike normal statutes) grows and changes from age to age – in order to meet the needs of a changing society. ” Judges – “determine these ‘needs’ and ‘find’ that changing law. ” …

Common Law or Constitutional Law? Recalls Common Law: Judge-Made Law But, it is even more powerful since in US “it now trumps even statutes of Dem. Legislatures. ” Judges –in US—now make the law from interpreting interpretations (precedent from precedent). Character of Judge-Made Law Eventually judges create whole system of law without consulting the legislature or the people. Here is how it works: Law Making: what ought the result to be… Not based on original Constitutional provisions … Instead, “judges simply ask themselves (as a good common law judge would) what ought the result to be…

Living Constitution Rule of Living Constitutions? Constitutional meaning “changes to reflect ‘the evolving standards of decency that mark the progress of a maturing society. ” Should there be a certain constitutional right (right to die, for example) ? If so, then there is that right. “If it is good, it is so. ” This is common-law – not the way a “democratically adopted text…” …

Const. Statutory Law and Common-Law Statutory law: Not supposed to change, that is, courts are not supposed to actively reinterpret it since it is the will of the legislature (a more representative branch). They can shoot it down as unconstitutional (judicial review), but apply it some new, unexpected way. Common-Law: Can evolve, is reinterpreted by courts/judges. Applied by judges. Constitutional Law: It is written law, adopted directly by the people (cannot be more representative). Thus, you would think that it cannot be (like statutes) easily changed. …

Const. Statutory Law and Common-Law Based on the will of the people Constitutional Law Most Representative Drafted by legislatures (state and federal (Congress) Statutory Law Representative Determined by judges (state, federal and Supreme Courts) Common Law Least Representative

Const. Amendments: Process Origins: 2/3 Vote in Congress (House and Senate) 2/3 Vote of National Convention called by Congress at behest of at least 2/3 of state legs. Ratification: Approved by 3/4 of State Legs Approved by 3/4 of State Conventions

Constitutional Law: Designed to Resist Change It is designed to prevent change to embed certain rights in such a manner that future generations cannot take them away…” Certainly cannot be construed to have the “effect…to take power of changing rights from leg and gave it to the courts. ” …

Living Constitution: Supporters Argue the following points (two parts): 1) Constitution needs to evolve in order to provide some flexibility. If we did not permit “change” or “growth, ” Const would have snapped. 2) Evolve Constitution will always led in the direction of “greater personal freedom”. …

Scalia’s Reply: Living Constitution: Less, Rather than More Rights He might find first claim persuasive if evolving Constitution had led to more, rather than less restrictions on Democratic Govt. Examples of Restricted Govt: We can no longer: Admit evidence obtained illegally Invoke God at a public-school graduation Prohibit pornography Also, “greater personal freedom” is good, but it is not always good. (273) Moreover Evolve Const has not always led to “greater personal freedom. ” Examples: property rights, right to bear arms.

Fewer Rights Property Rights and Right to Bear Arms: Changing Opinion Results in Different law: We value contract rights, and right to bear arms less than Framers, and in accordance with Evolve Const, these rights has been “gutted. ” Sexual Abusers: Psychic Trauma 6 th amend protects right of “criminal defendant” to face their accuser, to “confront the witnesses against them, ” but our increased concern about child welfare has encroached upon this right in sexual abuse cases, where victim is sometimes given the option of testifying outside of courtroom, and away from the accused. This may be consistent with modern values, but it is nonetheless a restriction on rights. …

Scalia Critique of Living Constitution In the absence of a text, the Const, that is, Const Evolutionists are left any stable guiding principles: thus, there is no agreement, no chance of agreement on…upon guiding principles. ” …

Danger of Living Constitution: without a written text to set limits, Const law will be: Reduced to will of majority. If Constitutional Law is based on evolving standards, than majority will understand Constitutional law as something that should agree with them. Originalists Do Not Always Agree: But They do More Often, Because they a stable document. …