Annie Daley

Civil Liberties
11-13-15
Constitutional Interpretations
Justices,

You have asked for my advice on the best methods by which to interpret the

Constitution. Your Constitutional authority shall extend to all cases, in law and equity,

arising under this Constitution (3.2.1). Your job it is to interpret the Constitution to limit

government and balance the interests of the few versus the many so as to protect the

rights of the people and create rulings that help as much of the population as possible

without undermining the country. If all justices rely mainly on flexible approaches like

judicial attitude and pragmatism, and less on more binding interpretations such as

original intent and textualism when discussing cases, your process of deliberations will

result in nine original perspectives so that when the majority agrees on the ruling, that

ruling strikes what they consider to be the best balance between protection of liberties

and protection of the nation in a result that will be both wise and fair.

The most important method for you to use when formulating your own opinions

on cases is judicial attitude, because if each justice does so, you will hopefully end up

with a diverse set of judgments that the majority can consolidate the best possible ruling

that will benefit as many people as possible. If the opinions do not greatly differ, than a

unified ruling can emerge as the best ruling. Justices are not elected, and so best represent

the people by sharing and displaying ideologies in common with the president who

nominates them and the Senate that confirms them. As justices are serve for life and are

appointed only when there is an opening, the court at any given time will likely consist of

justices appointed by several different presidents, allowing for a rich diversity of

opinions. As long justices continue to have a wide range of opinions, judicial attitude
 Annie Daley
Civil Liberties
11-13-15
serves as a system of checks and balances. You need to be careful, though that you do not

feel pressured to conform to a particular partisan set of ideologies; your role is not to

advance a particular ideology but instead to use the considerations of different ideologies

to find the best solution. Trust your instincts and your own values. The use of your own

values does not put too much power in the hands of nine unelected people who are

accountable to no one. The Supreme Court justices are no less accountable than a second

term president; in fact it is better that they are unaccountable because they cannot be

swayed by the threat of ramifications such as not being reelected. Judicial attitude will

not be the cause of an inappropriate politicization of the court, and although it is not

directly linked to the Constitution, it keeps the Constitution in line with modern times and

changing views. Judicial attitude is not a foolproof method of making rulings--no method

is. It does, however, have the greatest likelihood of producing the best possible decision.

Along with the power entrusted to Supreme Court justices to determine the rights

of the people of a nation comes the responsibility to employ pragmatism and run a cost-

benefit analysis to consider how any given ruling will affect the country for years to

come. Every single person in the country has been impacted in some way by at least one

Supreme Court case, because the Supreme Court does not rule on minor issues, but

instead hears broad cases that have a wide impact. Given the power to change the lives of

hundreds of millions of people, Supreme Court rulings become a case of the greater good

for the greater many. It is the job of the court to reach the decision that is consistent with

an applicable (time sensitive) interpretation of the Constitution and that the justices

believe will help as many people as possible. Pragmatism does allow justices to be

swayed by outside pressures and potential political ramifications. Justices need to be

 Annie Daley
Civil Liberties
11-13-15
thinking about the people whose rights they are protecting, and I disagree that that

analysis would necessarily result in potential political ramifications, nor do I think that

the court's power will extend too far as long as they make the best choice they can while

keeping the Constitution in mind. When done properly, pragmatism should be used to

help the people of the United States, not one political party. Consequences can be hard to

predict, but difficult does not mean futile. By examining different possible scenarios of

aftermath to evaluate the most likely consequences of their rulings, justices can greatly

increase their chances of helping the nation as a whole.

In order to maximize the chances of beneficial rulings, I suggest using polls of

other jurisdictions and stare decisis, which will hopefully allow you to keep the best from

past decisions and avoid replicating old mistakes. Looking to other sources such as

historical laws and policies to make decisions (polls of other jurisdictions) and using old

court cases as precedents, allows justices to examine old decisions in retrospect, which is

a lot closer and much easier to analyze than the present. Because it is up to the justices

which cases or sources they want to consider, they can ignore those inapplicable to the

current situation, thus keeping their decisions in line with the modern world. Because

each justice will consider different cases relevant, opinions will check one another.

Rather than different ideas of what is successful contradicting each other and rendering

historical analysis useless, they will hopefully serve the judicial attitude function of

enhancing decisions through diversity of ideas. If a policy worked in one situation in

another part of the world or another point in time and the situations are similar in a court

case, it is very reasonable to expect that consistent circumstances will yield close results.

It is possible that governments and courts can make bad decisions, and that replicating
 Annie Daley
Civil Liberties
11-13-15
them would only double the ineffectiveness or unfortunate consequences of the first

decision. Similarly, some old choices wont be applicable years after, but that is the

beauty of the flexibility afforded the justices; they can use the successful and applicable

decisions and policies and ignore the others. Again, neither polls of other jurisdictions nor

stare decisis are foolproof, but they are very strategic and increase the odds of good

rulings.

Justices should consider public opinion but not base their decisions on it. Public

opinion may be a good indicator of the potential reactions to a ruling, but ultimately,

justices should lead towards ideals of the country. Equality is a particularly important

value for justices to prioritize while not getting so far ahead of public opinion that the

rulings are radical and unacceptable. Being radical and unacceptable does not mean

something shouldnt happen; it just means that the government--including the Supreme

Court--needs to lead the nation slowly, rather than forcing a sudden, dramatic change.

Original intent, interpreting the Constitution based on what the framers intended

when writing it, is an extremely flawed process by which to interpret the Constitution; it

binds justices to a time long past and practices which may or may not be applicable to

modern society. Original intent should play a small part of the ruling process. The

Constitution needs to cover a broad range of circumstances, or it is little more useful than

a common law and certainly not qualified to serve as the supreme law of the land.

Americas social, economic, and political situations and needs have changed dramatically

since 1787. The value of original intent lies in the ideals that the founding fathers saw for

the country; wide freedoms, social mobility, equality for all. The problem with original

intent is that the founding fathers planned to achieve those goals (which is what I
 Annie Daley
Civil Liberties
11-13-15
consider original intent to be) through restrictive methods. Congress cannot pass

amendments each time a new situation arises; that is impractical. Justices are not writing

laws, as a legislature would, but simply explaining the best way to interpret and apply the

laws at any given point in history. Justice Brennan summed up the dangers of basing

decisions solely on original intent succinctly and eloquently in a 1985 address at

Georgetown University.

The genius of the Constitution rests not in any static meaning it might

have had in a world that is dead and gone, but in the adaptability of its

great principles to cope with current problems and current needs (Epstein

and Walker, 25).

Original intent advocates claim that the method keeps consistency in the rulings

of the court but I dont believe that there is value in predictability of decision-making,

because past cases arent necessarily appropriate precedence in modern times. I also

disagree that original intent avoids political bias. Apart from my support of personal

views influencing rulings, how are we to know exactly what the founding fathers wanted?

Fifty-five men worked to write the Constitution and each had his own intent. People

using original intent could pick and choose which intent they wanted to use, which makes

original intent nothing more than an anachronistic, binding version of judicial attitude.

Original intent should be used very sparingly.

Both schools of textualism, original meaning and literalism, are outdated means

of understanding the Constitution. Both enforce an unhealthy rigidity to the Constitution.

 Annie Daley
Civil Liberties
11-13-15
Original meaning of the words (what they meant when written) binds decisions to a time

long past and to a very narrow interpretation of the Constitution that may or may not hold

any relevance years later. While literalism (using the modern meaning of the old words)

is slightly more flexible than original meaning because it allows for the modernization of

meanings, it cause justices lose sight of values of the Constitution. This is not the same as

original intent, because it is what the framers wanted for the nation, not how they

intended to achieve those ideals. Just like there is no one interpretation of the

Constitution itself, there are multiple interpretations of the words of the Constitution.

Original meaning helps keep rulings consistent and free of bias, which is a

counterproductive goal. Personal bias improves the ruling process, and consistency is not

necessarily a good thing. The words dont matter; it is the values and ideals that the

founding fathers wanted for the nation that should be protected and considered in rulings.

The essential problem with judicial role is that every justice will have a different

idea of precisely what his or her role is, and so will allow themselves different amounts of

power. This could result in an unhealthy power imbalance that could disrupt the balance

born from the diversity of opinions that is the beauty of judicial attitude. The role of the

justice is up for debateeach will feel differently, and each must feel comfortable with

their actionsbut any given set of justices should agree on what their role is so they all

have an equal voice. Individual justices might chose to use less power, but every justice

should be able to pull equal weight in the decision making process.

While strategic approach promotes unity, it dilutes the diversity of ideas that

flavor a strong, broad, and fair decision. Upon taking control of the Supreme Court in

1801, Chief Justice John Marshall proved that unity of the court equals authority, and he
 Annie Daley
Civil Liberties
11-13-15
used that unity to elevate the judicial branch to the level of the legislative and executive

branches. The benefits of strategic approach end at unity and the dangers are many.

Basing your decision on the ideas of you eight coworkers makes the number nine

pointless. Why not have five, three, even one justice if you are not going to approach the

decision from different angles? Justices are more likely to pressure each other into certain

decisions if they are using strategic approach. If there is too strong a pressure to produce

a unified decision, the justices are more likely to make the wrong ruling by siding with

the majority rather than considering all angles that might produce a more complex and

difficult but ultimately better result.

Supreme Court justices should not consider partisan politics and interest groups in

their rulings, because both prioritize one group of people above the country as a whole.

Justices should not feel pressure to conform those beliefs to any one political party and

should also not be swayed by political officials to make rulings to help any one party. The

Supreme Court is part of a bigger government, but it can coexist and work with the other

branches without being pressured into losing its independence.

Justices should not allow small interest groups to dictate their decisions. If the

group is large enough, and becomes a majority, than considering the collective opinion is

pragmatic. However, many interest groups are small and radical, and ruling with their

wishes would put the desires of one group above the needs of the nation.

The most appropriate methods for interpreting the Constitution are flexible

enough to be applicable throughout different periods of history and allow for diverse

opinions that balance out to a fair ruling. The Supreme Court exists to protect the rights

of the people wherever possible by Constitutional interpretation while still keeping the
 Annie Daley
Civil Liberties
11-13-15
nation strong. The nine justices of the Supreme Court have an extraordinary amount of

power but they face an even greater limit: they have one document only to work from. No

method or interpreting that document will ever be perfect, and no method will ever be

completely inappropriate, but it is clear that some have many more merits than potential

dangers. You have a difficult job, great power, and huge responsibility. Use your position

wisely. Good luck.