Law, Public Policy, & Legal Theory - Essay Prowess

Law, Public Policy, & Legal Theory

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Types of Constitutional Interpretations


Law, Public Policy, & Legal Theory

The first type of judicial document interpretation is referred to as originalism. As the name suggests, the role of the interpreters of any legal document is to try and find the original message that may have been intended by the drafters of that law. It is critical to note that constitutional tenets always have some underlying original purposes that explain why they were put there by the people drafting the constitution. In originalism, the idea is that the message that the original authors of a given text in law wanted to pass across should be the one judges should be interested in. The argument that is meant in this case is that the law is always in a stable mode since its initial enactment and hence requires no modifications. In an attempt to understand the original meaning that was contemplated by the authors, supporters of originalism opine that there ought to be careful textual interpretation to unravel original intent (Balkin, 2009). Understanding people who ratified a given piece of law as well the authors in this theoretical approach is of overwhelming importance.  The biggest problem with this method of interpreting the law is when judges have to agree on which drafter of the law ought to be consulted before a judgment could be rendered. Additionally, there have always been challenges when judges try to investigate what specific clauses meant based on superficial documentation.


The other style of interpreting the law is referred to as the minimalist approach. In this instance, the courts who apply this doctrinal approach often offer limited interpretations of legal documents. This limited approach to interpretations is based on the philosophy that broad interpretations often leads to excesses in law. This type of judgement is categorized as moderate that seeks to balance both extreme leftists and rightists. The minimalists often reject the idea of activism in legal interpretations as well as the intent of getting original meaning (Blaker, 2019). Such excesses to them are what lead to constitutional clashes in different levels of judicial hierarchy. The most crucial legal tenet in minimalism is the issue of precedents, which are set by other courts. Ultimately it is hence essential to appreciate that the minimalists opine that legal stability can only be brought by restraint in how interpretations are made.

Living Constitutionalism

Living constitutionalism is the third theory used to explain legal interpretations. This is the theory that this paper shall be discussing delving into its strengths and weaknesses. This is a simplified approach because it argues that the constitution is not just a legal document but rather a living thing whose dynamics change frequently. This means that the constitution has to be interpreted in a way that reflects the needs and requirements of modern times. Even though the law may not be amended by formal process, its interpreters must be privy to the prevailing societal necessities so that they can consider them in their interpretations. Since societies are always in a state of flux or change, constitutions should also be flexible. The central assertion by the supporters of this theoretical approach is that if constitutions stop being compliant, then there will be an upsurge of civil instabilities across many societies. The importance of having such a flexible constitution is that even a government will have within its reach malleable tools that can be applied when the need arises. The rationale behind this legal approach is that constitutions should be contemporary instruments that aid in enhancing proper and efficient governance.

Strengths and Weaknesses

Strengths of Living Constitutionalism

The first major strength of living constitutionalism is that it helps in accommodating emerging societal needs and necessities.  To understand the nature of this strength, then it is essential to understand and appreciate the basic things of any society. It is a truism that nations are not blocks of people who are in constant modes. Rather scholars have since time immemorial opined that nations are living organisms that keep on evolving in different times and circumstances. This means that new norms, traditions, and ways of socializing keep on emerging every passing day. People become accustomed and appreciative of these new emergent social and cultural norms guaranteed that they can serve their lives well. This is the rationale behind societal evolutions through the different stages of life in which every step had its own definitive characteristics.  It is the responsibility of the members of those societies to ensure that they work towards obeying laws that have been laid down by life. The laws that ought to be applicable by human beings in this context must be those of life as contrasted with those of mechanics. This means that the laws which are being followed are progressive and change over time. This is what supporters of this theory, referred to as the development of law.

The fundamental aspect of living constitutionalism is that judicial officers should be given the responsibility of interpreting the laws progressively. This means that human beings should not be seen as fixed mechanical products that do not evolve. The Darwinian principle offers immense support to this argument as it argues that humans keep on changing depending on a number of variables. As human ecology gets to change in sync with those variables, so also is their mind. As the mind and instincts of human beings become quite developed and expanded, it will, therefore, mean that more enlightenment and innovations will be discovered. By extension, it will mean that new, more truths will be explored. The continued expansion and discoveries in human faculties necessitate that institutions and judicial officers become acclimatized with the latest inventions and act accordingly.  

The other key strength of this theory is that it presupposes that a constitution should not be seen as a normative legal instrument. However, to the contrary, constitutions should be interpreted as concepts that are foundational in any society. The net meaning of this assertion is that constitutions are supposed to offer the necessary foundational framework that is tailored in governing a society where it is being applied. This does not mean that laws should be ambiguous or confusing. On the contrary, the basic rule is that laws in any society should be very lucid and fixed so that they can allow the people to follow them strictly (Fleming, 2012). The broad interpretation of this statement is that whereas societies may be having fixed laws that are vital for stability, such rules should not be so abstract that they cannot relate to the needs of the people. The importance of emphasizing this point is that it helps authorities in keeping their policies and laws practical in their conceptualization and application. The justification for the calls to have liberalized and progressive constitutions is that it benefits society in two ways. One, it assists a nation not to fall into the trap of interpreting its laws and rules based on the ideals and principles of previous generations (Sunstein, 2005). This is because every generation has its own way of doing things courtesy of the ideals that it holds vital to them.

 Ideally, every society is faced by different circumstances that shape the way people interact. Secondly, a living constitution will help in reducing the attempts by the political leaders to change their current constitutions to reflect the current circumstances. This is because history has shown that when nations feel threatened by retrogressive laws, they attempt to conduct themselves in a disobedient manner to subvert such laws. The ultimate impact is that there may be a revolution courtesy of rebellious acts from the citizens when the laws that guide them become inhumane and brutal (Solum, 2013). It is worth noting that any society that wishes to remain stable and progressive should have its constitution reflect the realities and experiences of the people. Such a reflection is critical in that the people will feel that what they aspire for is already incorporated in the laws of their land and that their rights and freedoms are equally protected.

The third strength is that the constitution is silent in how it wants to be interpreted. The supporters of the living constitution theory postulate that even though the framers of the constitution were renowned lawyers, they never recommended any single approach of interpreting the document. The framers were people who were well qualified legal theorists and scholars who engaged in voracious debates on the nature of the constitution that the U.S needed at that time. Despite all those qualifications that they possessed, the framers did not narrow down to any specific interpretive module that future interpreters could use. It is, therefore, appropriate to note that if the framers had intended future interpreters of the constitution to use a specific model of interpretation, they would have put it down in the same document in clear terms. The fact that there is no such guidance in the constitution means that the drafters did not have a specific interpretation model that they could recommend. The lack of a specified model, therefore, means that the constitution can be interpreted in whichever method applicable and necessary depending on the prevailing circumstances.

Flaws of Living Constitutionalism

There are several occasions when the theory of living constitutionalism has come under immense pressure from its opponents. In this case, the strongest point of opposition for this doctrinal approach emanates from the thought that is used for activist purposes. As opposed to being moderate, this theory has sometimes been seen as entrenching the belief that activism in judicial interpretation is allowed. The first point of weakness is that this theory presumes that what is left out in law can be assumed by the interpreters (Weis, 2013).  This means that judges have the role of imagining what the authors could have intended to pass across as they wrote their texts of the law. In the case of Marbury v. Madison, which was issued in 1803, the Court brought up the issue of judicial review of cases (Marbury v. Madison, 1803). Until that time, such powers had not been witnessed before in the country’s legal architecture. The danger in creating such an opaque situation where the discretion is passed on the judges is that they may use it in haphazard ways that are dangerous to fundamental human rights. This is because different judges have different rationales for rendering their judgments based on adduced evidence. When granted the discretion to interpret texts and legal terms on their own, it will mean that they may go overboard to start arrogating the written legal concepts some extraneous interpretations.

The second point of weakness for this doctrinal approach is that it allows for activist judges to start legislating while they are on the bench. This happens in situations where a judge may feel that they have the powers to overturn legislation that had been passed by the legally mandated assemblies. By introducing new dispensational or interpretive approaches that are aligned to their values, it will, by extension, mean that such judges and jurists will be overturning the already written laws in favor of their beliefs and values. Primarily, the laws passed by legally authorized legislatures will become subsumed to the interests of the judges making the judgment.

The overwhelming majority of proponents of this criticism of the living constitutionalism doctrine opine that judges who subscribe to this doctrine often imply or invoke some illusionary rights. This means that such judges become immensely attuned to the fact that they can pass over some rights and freedoms which were not even contemplated in the constitution in the first place. In the case of Roe v. Wade, it was determined by the Supreme Court that privacy was a fundamental right that had to be given to every woman. (Roe v. Wade, 1973) These rights extend to even circumstances when a woman has to decide whether to terminate their pregnancies or not. The Court essentially, therefore, opined that the government was only supposed to have limited regulation on issues of abortion. Even in such circumstances, when the government has regulatory powers, the Court ruled that such powers were supposed to be very limited and applied with a restraint that they do not breach on the privacy of the citizens. Some scholars argue that the law did not initially contemplate such abortion rights, and hence the Supreme Court acted in an activist manner in its ruling (Wilkinson, 2012). This criticism was mostly advanced by the conservative legal scholars and jurists, who further argued that it was made in a very selective way. The argument here is that the Supreme Court was overstepping its mandate in rendering its ruling.


This paper has extensively reviewed the concept of judicial interpretation. There are diverse ways that are used in interpreting the constitution and other statutory instruments by judicial officers. The broad mechanisms that are applicable when interpreting legal documents are what is referred to as judicial interpretation. Understanding the various processes that are followed in interpreting and giving meaning to legal statutes is very important in that they help scholars to know legal norms, especially in common law jurisdictions. Some countries like the United States apply common law standards, and hence understanding common law standards can predict and analyze the behavior of their courts. Different scholars have often used diverse methodologies in the way they approach legal interpretation. The paper evaluated both the strengths and flaws that are inherent in the living constitutionalism theoretical approach.


Balkin, J. M. (2009). Framework originalism and the living constitution. Nw. UL, Rev.103, 549.

Blaker, J. (2019). The High Court’s Minimalism in Statutory Interpretation. Adel. L. Rev.40, 539.

Fleming, J. E. (2012). Living Originalism and Living Constitutionalism as Moral Readings of the American Constitution. BUL, Rev.92, 1171.

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (U.S Supreme Court, 1803).

Roe v. Wade [1973] 410 U.S. 113 (Supreme Court).

Solum, L. B. (2013). Originalism and Constitutional Construction. Fordham L. Rev.82, 453.


Weis, L. K. (2013). What comparativism tells us about originalism. International journal of constitutional law11(4), 842-869.


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