This is a big debate in constitutional law. Some people, like Justice Scalia, think that the Constitution should be interpreted in accordance with the original intent of the drafters. Others, such as the late Justice Marshall, have been explicit that the Constitution's meaning changed as society's notions of justice and fairness change. Who has the better of the argument here?
Consider: The Framers of the 14th Amendment, which Brown v. Board of Education was based on, though separate but equal was perfectly fine, but the Court in that case nevertheless abolished separate but equal and demanded integration in spite of the original intent of the drafters of the 14th Amendment.
On the other hand, some argue that the living constitution theory gives judges nearly untrammeled discretion in determining the meaning of the Constitution. People who disagree with the right of homosexuals to engage in sodomy (Lawrence v. Texas) say the Framers did not intend to protect that conduct.
2007-10-26
13:55:56
·
8 answers
·
asked by
John Tiggity
2
in
Law & Ethics