living vs originalism

Question 1

5 reasons the constitution should be interpreted as a living constitution

Answer 1

• the constitution will become outdated if it isn’t regularly updated
• elected and accountable branches will often rule in favour of the will of the majority and therefore interpretation of the constitution can ensure minority rights are also protected
• the FF couldn’t have envisioned the world which exists today and some of the words in the constitution are meaningless without interpretation - the FF weren’t writing about semi-automatic rifles in 1787
• the amendment process is long and difficult so this allows the development of the constitution
• the principles of the constitution can be upheld despite the wording of the document

Question 2

5 reasons the constitution should be interpreted in an originalist manner

Answer 2

• interpreting the constitution makes the SC a political institution, undermining its ability to check the other branches of gov
• changes required can be left to the elected and accountable branches rather than them risking the core principles being misinterpreted
• people are accountable for their actions according to the law, if it is always changing then it isn’t possible for them to know what the law is until after a judge has decided
• the amendment process exists
• constitutional principles are relevant, while the FF wrote the constitution using words and text to show meaning and this should be adhered to

Question 3

2 examples of liberal judicial activism

Answer 3

Obergefell vs Hodges 2015
legalising same sex marriage
ignoring the laws of 13 states where it wasn’t allowed
also strick down DOMA - defence of marriage act
so the court overruled both state and federally elected officials
ALSO
Brown v Board of Education

Question 4

example of conservative judicial activism

Answer 4

Citizens United vs FEC 2010
overturned the McCain Feingold reforms
allowed money to be free speech
enabled meritocracy and limited government interference in individuals lives

Question 5

example of liberal restraint

Answer 5

Whole women’s health v Hellerstedt 2016
- showed defence of the 1973 Roe v Wade decision

Question 6

example of conservative restraint

Answer 6

Glossip v Gross 2015
continued use of lethal injection
case suggested that prisoners could only challenge the method of execution
court argued it was the responsibility of the prisoner to demonstrate the method of execution causes pain, not of the state

Question 7

5 criticism of judicial activism

Answer 7

• unelected and unaccountable SC
• allowing SC to strike down acts of congress and the executive with limited checks
• allowing the SC to strike down state laws –> ignoring the constitutional principles of federalism
• court can overrule its own decisions even when the constitution hasn’t changed suggesting the court is acting politically rather than neutrally
• judicial review interprets the constitution so there are few effective checks on the courts power as amendments are difficult to pass

Question 8

4 criticisms of judicial restraint

Answer 8

• if the SC defers to elected branches of gov, this might allow law and policies which directly contravene the constitution to stand
• frequent election cycle so the elected branches often shy away from dealing with controversial policy issues or focus on the will of the majority