Ambiguous Constitutional Language
The First, Third, Fourth, and Fifth Amendments imply the right to privacy through the freedom of religion and the protections against mandatory housing of soldiers, unlawful searches and seizures, and self-incrimination. However, nowhere in the Constitution does the word “privacy” exist. Since the language of the Constitution related to the privacy rights and other rights—such as the right to bear arms—often is ambiguous, it leads to one of the most fundamental tenets of democracy: discourse. This ambiguity leaves room for interpretation and according to some legal scholars gives way to the belief that the Constitution is a living document that reshapes itself to suit the changing times. While Supreme Court Justices have the power to decipher and give meaning to the ambiguous language, the implications on policy can be both positive and negative.
To prepare for this Discussion:
With these thoughts in mind:
Post by Day 3 at least two strengths and two limitations related to the Supreme Court making policy by interpreting ambiguous constitutional language. Be specific and justify your response.
Be sure to support your postings and responses with specific references to the Learning Resources.
Judicial Philosophy and Establishment of Rights
In the Declaration of Independence, Thomas Jefferson defined inalienable rights as life, liberty, and the pursuit of happiness. Although this statement is very vague and unclear as to what liberty and the pursuit of happiness entail, it provides rights to all citizens of the United States. Ambiguous language is used throughout the Constitution, which makes its interpretation a daunting task for Supreme Court Justices ruling on controversial cases.
There are two schools of thought for interpreting the U.S. Constitution: Originalism and Living Document Philosophy. Justice Antonin Scalia favors Originalism, which means the Constitution’s interpretation should pertain to the original intent of the document. Justice Ruth Bader Ginsberg favors Living Document Philosophy, which leaves the interpretation up to the changing moral, political, and cultural climate of the times.
Out of respect for the legacy of the founding fathers and the central identity of U.S. democracy, the Constitution will never undergo revision, but rather, can be amended. Originalists do not want an amendment to detract from the genuine Constitutional document. Conversely, Living Document Philosophy sees amendments as the Constitution’s intended legacy.
To prepare for this Discussion:
With these thoughts in mind:
Post by Day 4 an explanation of which judicial philosophy for constitutional interpretation (Originalism or Living Document) you believe would best benefit law and public policy. Then describe a “right” which the Supreme Court established by interpreting the Constitution. Explain the constitutional interpretation that led to the establishment of this right.
Note: Put the judicial philosophy you selected in the first line of you post. You will be asked to respond to a colleague who selected a judicial philosophy that you did not.