Constitutional interpretation

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Theories of Constitutional Interpretation

  • Originalism - Originalists believe that the Constitution is not a living document, and that the intentions of those who drafted it should control its interpretation.

It is hard to take this philosophy too seriously, when the original intent of the Constitution was to treat slaves as less than a whole human and permit slavery in the first place.

Secondly, the same Justices who tend to proclaim this philosophy also tend to stridently oppose a broad reading of the Fourteenth Amendment based on a string of precedent going back to The Civil Rights Cases which clearly bucked the original and then-recent intent of the Fourteenth Amendment

  • Textualism - This is also a theory of statutory interpretation, sometimes applied to the Constitution. This excuse is often snarkily used to claim that there is no "right to an abortion" stated in the text of the Constitution.

Such is true, but the cases up to and including Roe v. Wade and Casey follow a string of logical progression from the Fourteenth Amendment.

Textualism is also used as a typical Right-Wing dodge to any kind of Substantive Due Process that does not involve economics. Economic substantive due process, thought to be dead since the New Deal era, may have been inadvertently revived in a case regarding the pensions of coal miners.

  • Aspirationalist
  • Structuralist

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