Discussion 1
Originalism is the theory that the constitution should be taken as is and should not be altered. I believe this was meant to be how the Constitution was written, to begin with, to be taken as is. While on the other hand, Constitutionalism is where the meanings within the Constitution are changed over time to fit for changes within America. As David A. Strauss says in paragraph 5, So a living Constitution becomes not the Constitution at all; in fact it is not even law any more. It is just some gauzy ideas that appeal to the judges who happen to be in power at a particular time and that they impose on the rest of us. By allowing for constitutionalism to take place, the constitution is per se not the constitution anymore and instead just a roughly followed paper for advice.
By us following the constitution however and being a part of originalism, as Neil M. Gorsuch states in paragraph 4, Letting dangerous and obviously guilty criminals who have gravely injured their victims go free just because an officer forgot to secure a warrant or because the prosecutor neglected to bring a witness to trial for confrontation seems like a bad idea to plenty of people. You would be letting some dangerous criminals, maybe even murderers, be free simply because something within the constitution was not followed precisely. As far as which view, I go with, I am not sure which one I lean towards as both sides have their ups and downs along with their own issues.
I believe the two concepts of originalism and constitutionalism do not have a direct impact on me but can be important for those who are in law while making their decisions accordingly while trying to be just without much backlash from the public. As far as if the judges rulings should be based on the original purposes or laws written within the constitution or make their own adjustments to these laws and purposes to fit into the society today, I also am not sure which they should follow. The judges themselves may strongly agree or disagree with the concepts of originalism and constitutionalism and their ideas and judgments may be based on these concepts.
If all judges were to be in favor of originalism and base their opinions and rulings on the exact meanings of the law and constitution, some of the rulings might seem unjust or not very fitting for todays world, but at the same time, if all of the judges decided to be in favor of constitutionalism and therefore base their opinions based on their own per se meanings and rulings of the constitution, the rulings would never be the same and some judges may even agree or disagree with each other based on their rulings. If you were to go on the idea of constitutionalism, there would be a lot of changes as the constitution was written to be applied for their world in that time period, not in todays society where everything is completely different.
Discussion 2
Constitutional Originalism Discussion Board
Category 1:
Why Originalism is the Best Approach to the Constitution
In this article, the author demonstrates both the positive and negative connotations of deciphering law based on the theory of originalism. It is apparent that there are shortcomings to this theory when the Constitution is interpreted through originalism theory. Just like all decisions of life, there are consequences, but the consequences usually end up equilibrating. Gorsuch (author) states that originalism teaches only that the Constitutions original meaning is fixed; even though there are new changes to the concepts of life every day. Gorsuch uses examples like the First and Fourth Amendment to explain to the reader that an
originalist interpretation of the Constitution can have the same constant implication when new situations and technology arise, but that it can also mean that extremely bizarre conditions of situations are considered constitutional. This article also delves into matters of how politics can adversely affect the decisions made during interpretation of law.
The Living Constitution
In this article the author delves into the concepts of both common law precedence and originalism theory. Strauss (author) explains that law is ever evolving and decisions that may seem constitutionally sound at one point in time, may not uphold the same in another time or place. Common law is used most in court proceedings to help judiciary bodies decipher what is acceptable and what is not. Although precedence may not always be dependable, since not all situations are identical, it is thought to be the most just way of decision making. A living constitution is identifiable by an evolutionary interpretation of constitutional matters. It is unfair to depend on strict constitutional interpretation for a situation that bears no resemblance. When considering a living constitution, it is not the constitutional ideas that are implied, it is the court precedence that is referenced for judicial actions. Originalism is explained to be a form of command theory; meaning that because it is worded a specific way in the Constitution, it is law and there is no room for misinterpretation. Living Constitutionalism is based on humility and reason; different matters may benefit from different decisions made.
Category 2:
Originalism Divided
In this article Litman (author) brings together the views of both sworn originalism parties and living constitutionalists. The factor that causes the most uproar is that the world we live in today is entirely unimaginable by the founding fathers that recorded the Constitution. Originalism theory states that we are to interpret constitutional meaning in the way that it was historically intended. Living Constitutionalism is not changing the interpretation of the laws but applying them within reason as needed to modern situations. Litman pointed out that even sworn originalists can be on the fence about constitutional beliefs. It is also noted that living constitutionalist belief can be misconstrued as creating a new meaning instead of applying said law in a contemporary setting.
As the name of one of the articles implies my thoughts on originalism and living constitutionalism remains divided. I cannot whole-heartedly claim that one ideology is superior to the other because I believe that each has their own strength of implication. There is an extent to which originalism is within reason and sound, but if it cannot be applied in a contemporary manner, then I do not see how it can be justifiable to uphold the verbatim words of individuals who could not imagine the modern world and its desires. I suppose that judges cannot rule based on the original intent of the Constitution or way in which the law was originally written to its entirety due to the variable and technological circumstances of modern-day life. When considering the protection of privacy, I feel as though using thermal monitoring or a helicopter to surveillance without warrant is a violation, but in originalism theory it is not. I also feel as though since not all situations are identical, precedence and common law is a vast gray area that should not be interpreted, and it should be held to a standard by the Constitution. I may not be able to grasp the concepts completely because of the nature of my neutrality which inhibits my ability to fully engage.