Annie Daley

Civil Liberties
10-28-15
Constitutional Interpretations First Impressions
1. Original Intentshould not use
a. Why it should not be used:
i. Original intent is outdated and frequently inapplicable. The
situation when the Constitution was written 200+ years ago is very
different now. The country, economy, and people have very
different needs, and the major decisions/policies need to reflect
that.
ii. Allows for importance of amendments
b. Possible counterarguments against counterarguments:
i. Yes, it does result in more stability than interpretations that change
with time, but the world is shifting. Policy needs to shift with it.
2. Literalism (textualism)should not use
a. Why it should not be used
i. even though it is a modern meaning of the words, if the words
themselves/the theory behind are outdated, that is little better than
original meaning
b. Possible counterarguments against counterarguments
i. I need to mull this one over a bit more
3. Original meaning (textualism)should not use
a. Why it should not be used
i. again, times change, and what was applicable 200 years ago might
not be now
b.possible counterarguments against counterarguments
i. Again, it would be more stable/constant, but its more important for
the interpretation to stay in date. Times arent consistent, so policy
shouldnt be either
4. Polls of Other Jurisdictionsshould use
a. Why it should be used:
i. A policy that thrives once has a higher probability of thriving
again. They say hindsight is 20/20, and while that may not be
entirely true, it can be easier to evaluate the past to formulate the
present/future than to pull ideas out of thin air.
b. Possible counterarguments against counterarguments
i. Yes, decisions and policies can be mistakes but not all old choices
need to be made again. If they are not appropriate for the given
situation, justices dont have to use them. They can pick and
choose.
5. Stare Decisisshould use
a. Why it should be used:
i. Again, easier to see success/lack thereof in hindsight, and justices
dont have to use
ii. Also has the benefit of consistency in decisions
b.Possible counterarguments against counterarguments
 Annie Daley
Civil Liberties
10-28-15
i. Justices can pick and choose precedence, so if a bad decision is
made, they dont need to base a new one on it
6. Pragmatismshould use
a. Why it should be used
i. Decisions made by the Supreme Court have the potential to impact
hundreds of millions of people for centuries if not influencing rest
of world. Therefore, justices have a responsibility to consider what
that impact will be, especially as lawyers and policy makers try to
use different cases/ policies as influence for new issues
b.Possible counterarguments against counterarguments
i. While this is allowing a source other than the constitution itself to
influence decisions, it is worth the cost/benefit analysis. Because
times change and the original intent may not be applicable forever,
it is important to decide how any given decision will affect the
country at the present time and in the future.
7. Judicial Attitudeshould use
a. Why it should be used
i. Because there are nine justices, that means nine different views,
which will hopefully reach a compromise many, if not all, are
happy with and will benefit more people
ii. Appointed by different presidents, so different political parties will
be represented
iii. More likely to shift with time than a more ridged constitutional
interpretation.
b.Possible counterarguments against counterarguments
i. Does it vest too much power in people not democratically elected?
They are appointed and confirmed by people who are
democratically elected, and without politicizing the court, thats
about as democratic/ representative of the people as you can get.
8. Judicial Roleshould not be used
a. Why it should not be used:
i. Justices should have a set, agreed upon, equal role
ii. Otherwise, different justices will have different amounts of power
depending on their personal views
iii. One political ideology might have justices more restrained, and the
other party would dominate
b.Possible counterarguments to counterarguments
i. The one example where personal opinion shouldnt be used. Yes,
the justices should have a say, but they need to agree together what
the role is. It should be able to change, but they need to agree (or
majority)
9. Strategic Approachshould not use
a. Why it should not be used
i. The point of having multiple justices is to get multiple viewpoints.
If they all consider each others opinions when formulating their
own, theyll all blend together. While the final decision is agreed
 Annie Daley
Civil Liberties
10-28-15
upon, everyone should be able to agreeor disagreefor their
own reasons
ii. Not using it preserves the diversity of opinions
b.Possible counterarguments to counterarguments
i. The advantage of using strategic approach would be to unify the
court, but theres a difference between unifying for authority and
unifying for total agreement
10. Public Opinionshould use
a. Why it should be used
i. Representative of peoplejustices arent elected, but they can feel
tide of popular opinion
b. Counterargument against counterargument
i. It is an external pressure on justices, but it is one that is
representative of the people, so it is a good bias/pressure
11. Partisan Politicsshould not use
a. Why it should not be used
i. It would politicize the decisions too much
b. Counterarguments against counterarguments
i. Yes, it unifies the government, but the point of having three
separate branches is so that they can act independently and serve as
checks to each other
12. Interest Groupsshould not use
a. Why they should not be used:
i. unlike public opinion, not representative of people as a whole,
unnecessary bias
b. Possible counterargument to counterargument
i. I really dont know what a good argument for using interest
groups isIll work on that, but its been way more than 45 min
and Ive got to go to bedtest tomorrow!