The Contemporary Debate Over Constitutional Interpretation Essay

, Research Paper

The debate over the role of the judiciary in the government has been going on for a long time. Some say that the Supreme Court has overstepped the boundaries that it is to operate by, while others believe that much of the Constitution was written in such a way that it needs to be interpreted according to the situations that have arisen in today’s society. These two opposing viewpoints are demonstrated by Robert Bork and Justice William Brennan.

Robert Bork believes that the original intent of the Constitution should guide judges, not social or political considerations. He says that judges have interpreted laws not by principles that are in the Constitution, but by those that do not exist. They claim the power to strike down statutes, yet they make little or no attempt to justify or describe the source of that power. Also, the judges have not stated what principles, if any, limit their power. Bork concludes that since elites change over time, judicial activism has no single political trajectory over time. He also reasons that sometimes when the values change (since elites change) the decisions that are rendered directly contradict those of a prior era. Robert Bork’s main point is that judges who insert new principles into the Constitution only describe their origins in a rhetorical, never analytical, style. In summation, the Supreme Court should apply laws, not create them.

William Brennan believed in loose interpretation of the Constitution. He stated that since the provisions were written years ago, we must accept the ambiguity that comes with trying to apply them to today. The Framers did not even agree on the meaning of certain provisions and judges today would be lying if they said that they could honestly make decisions on contemporary questions while trying to decide the original intent of the Framers. He concluded that interpreting the provisions for today’s society must only be to serve the public good (taking into account the problems and ideals that the public is faced with).

I believe that the Court has not exercised the self-restraint that Bork claims it must in order to fulfill its role according to the intent of the framers. I surmised this from the rulings in the cases of the Court over the past fifty years (Brown vs. Bd of Ed., Engle vs. Vitale, etc.). In the case of Brown vs. Board of Education, the ruling was not brought about by the decentralized democratic process outlined in the Constitution, but simply by a decree of the Court. It has been said that the Court’s “loose” constitutional interpretations have been contrary to the wishes of the majority of the people and have made a mockery of the Constitution itself; again showing that the Court is overstepping its boundaries of power. In Engle vs. Vitale, the Court ruled that prayer in public schools was unconstitutional. Even though religion in schools should be a matter for the states to decide on–anyway, some districts in the south still have prayer in their schools (shows that these kind of rulings can not even be enforced). It has also been said that the Court’s decision in the case of Bakke vs. Board of Regents was ambiguous and only solved the problem temporarily (showing again that the Court can not even hand down reasonable and justified decisions).