U.S. Constitutional interpretation issue, only for interested in theory.....anyone?

Question

Hi, I am interested in knowing your position about constitutional interpretation. The thing is, in Germany (an most of Continental Constitutional Systems) theory recognizes a thing called "constitutional mutation" this means that when the Constitutional Court interprets a constitutional norm, and changes the sense of it, the norm "mutates".
Naturally, there is a way to ammend the constitution, but they do not mean that, they mean that the text stays the same, only the sense changes.
Now, how can I compare this concept with American Constitutionalism? Do you think it is comparable with the judicial interpretation theories? I mean strict constructionism or the living constitution idea....just to name what I´ve read of.

What books or articles do you reccomend me?

Thank you very much.

I forgot: Is this judicial activism? I mean is constitutional mutation --or can be understood as-- the same as judicial activism?

Answer 1

I am opposed to constitutional mutation. If the court can "interpret" the constitution any way they want to, then why bother having a constitution in the first place? Might as well just make the court members dictators.

In America, strict constructionists are opposed to constitutional mutation, while the living constitution people are in favor of constitutional mutation. Constitutional mutation is judicial activism. Although sometimes judicial activism doesn't explicitly mention the constitution.

In America, the Republicans (Conservatives) are usually strict constructionists, and the Democrats (Liberals) are usually living constitution people. I've sometimes seen people ask if a Conservative can be a judicial activist too. And I suppose, hypothetically, one could. But usually they aren't.

Answer 2

I love Constitutional Law Questions. This one ask me to use my opinion a little. Case law is an important tool in interpreting the Constitution. I am not sure how the German system works but I suspect it is similiar to ours. Here we have a system of courts that start out at State level (District, Superior, Appeals, etc.) and bleed over to Federal (District, Appeals, Circuit, etc) and finally Supreme Court which is as high as you can go. Once the Supreme agrees to hear your case and then rule on it you're through (win, lose, or draw). These various courts make their rulings and the more important ones (State Appeals, Federal Circuit, etc.) are generally referenced when lawyers argue their cases before the court (case law). Sorry for the civics lesson but I wanted to give a run down to you in case you aren't familiar with it.

Anyway it should not suprise anyone that various courts do over rule each other in legal battles. State Appeals Courts may over rule a lower State Court and the Supreme Court may eventually come in and over rule the Appeals Court.

Case Law does evolve to meet the needs of society. Also, what may work in one part of the country may not make it through the court system in a more liberal part of the country. The 9th Circuit is notorious for making bad decisions for law enforcement officers and has been overturned by the Supreme Court more then any other Circuit.

I could go on forever about this. I am tired but will try to add more later.

Check out this question I answered earlier. It deals with the 9th Circuit. I posted an example of the 9th Circuit being over ruled by the Supreme.
http://answers.yahoo.com/question/index;_ylt=AtQ8sdTKtycbGaNkgVZsYYzsy6IX;_ylv=3?qid=20070918211246AAEOd2M&show=7#profile-info-8ipeOY72aa

EDIT: I think some "mutation" is unavoidable. You can never find two people who agree with each other all the time. Let alone a group of judges. Now consider the Supreme Court and the changes in its make-up since the US was founded. Opinions are going to change and the way the Supreme Court interprets the Constitution is going to change with the various judges that sit on it over time.

Answer 3

I think that certainly our U.S. Supreme Court has shown outright "constitutional mutation", whether they recognize it or not. Some that come immediately to mind are our rights to free speech, and the separation of church and state.

When enacted, our forefathers were thinking about political speech and our right to voice our opinion. In court cases however, this has spilled over into all sorts of rights, from the freedom to view porn to the media's right to air graphic language and violence.

In the separation of church and state, our forefathers intended to keep us safe from state mandated worship, to keep the state away from our church, to keep us free to worship. Subsequent Supreme Court cases has "mutated" that into meaning the church has no right in politics.

There are many other examples that show how our consitutional laws have mutated into something else. I'm sorry, I can't think of any books or articles right now, I'll try to think of it later :)