Checks and Balances Essay

This essay has a total of 2249 words and 9 pages.

Checks and Balances

Constitutional Interpretation

The problem of interpreting the Constitution and framer’s intent is a constantly
permeating and troublesome question in the minds of Supreme Court Justices, judges,
prominent politicians, and policy makers alike. It is a problem that has been pondered for
years and years in the courtrooms and on paper with no real conclusion. One such essay
arguing this dilemma is “How Not to Read the Constitution” by Laurence H. Tribe and
Michael C. Dorf, who explore the questions “Is reading the text just a pretext for
expressing the reader’s vision in the august, almost holy terms of constitutional law?”
and “Is the Constitution simply a mirror in which one sees what one wants to see?” (Tribe,
49). While Tribe and Dorf begin their article with a seemingly unbiased opinion on the
subject, by the end of the essay it is quite clear that the authors believe in the United
States Constitution as a living document which is vulnerable to interpretation and changes
with the times. There is much research citing evidence which both supports and argues
against the idea that the Constitution can be freely interpreted to adjust to modern
society. Neither of the two sides have very solid, concrete arguments. The supports are
all very porous and can be easily attacked by the other side. Therefore, there is no
right answer to the question of Constitutional interpretation.

In order to understand the topic at hand, one must first have a firm grasp on the original
framing of the Constitution. The Constitution was written in a time of national turmoil.
Bankruptcy and hunger were rampant throughout the country. The Articles of Confederation,
written in 1781, proved to be a failure and the politicians were under a lot of pressure
to create a functioning national government and a workable law for the land. The Articles
of Confederation laid down some of the fundamentals of our national government, but still
it had many flaws, such as an inability to regulate commerce and an inability to tax,
among others (Scholastic Update, 2). The main players in the organizing and writing of the
Constitution are Alexander Hamilton of New York, James Madison of Virginia, and George
Washington. They believed in a stronger national government and Congress’ right to
regulate trade. In response to Shay’s rebellion which consisted of farmers protesting
taxes, a convention was called for by Madison and Hamilton to be held in Philadelphia in
1787. It was during this convention that the foundations for the Constitution were worked
out. A completely new government was created and put on paper between May 25 and the
final signing of the Constitution on September 17. The document was debated for sometime
between Federalists and Anti-Federalists, but in December 1971 ten Bill of Rights were
added to the Constitution in order to give rights to the citizens of the United States.
This pleased both sides, and the Constitution was ratified (Scholastic Update, 4). The
document produced from this convention has been the effective law of the land for over 200
years. “...out of the chaos of the 1780s emerged the Constitution, perhaps the most
effective model of government ever devised. It was written by a small group of quarreling
people under intense pressure. They knew how difficult their job was--and that what they
had come up with wasn’t perfect. But they hoped they had created something that would be
a living document for future generations” (Scholastic Update 2). The Constitution has been
the center of many disputes as to how literally it should be read and followed.

There is much evidence available which can point to the conclusion that the Constitution
should be seen as a living document. This means that lawmakers and judges can find
solutions to modern problems by taking the standards of the original framers, and
translating them into modern standards. “ [The framers] took the records and experiences
of the colonial governments, the Continental Congress, the Articles of Confederation, and
all the hopes and dreams of those early colonialists and forged and instrument based on
individual freedom that is so vague and nebulous, yet so dynamic and flexible, it often is
referred to as ‘a living thing’”(Rupert, 2). This “poetic license” can be a great
benefit to modern society. The living document theory is an idea which is popularly
supported by both political parties. This fact holds a lot of weight, because it is very
rare to have such bipartisan agreement. Even in Tribe and Dorf’s essay, they state that
“The belief that we must look beyond the specific views of the Framers to apply the
Constitution to contemporary problems is not necessarily a ‘liberal’ position. Indeed, not
even the most ‘conservative’ justices today believe in a jurisprudence of original intent
that looks only to the Framers’ unenacted views about particular institutions or
practices.” (Tribe, 49).

The vagueness of the original Constitution brings up a few issues concerning the
legitimacy of the literal reading of the Constitution as it relates to modern times. Since
the Constitution was written at a time so different and so distant from our own time, we
have no way of truly knowing what the original understanding of the document was. The
meetings that were held to write the Constitution were not well documented, so the
discussions that went on between the framers are not known. This information would greatly
aid in knowing the original understanding. Besides the generic realm of the original
understanding of the Constitution, there are many specific issues which Tribe and Dorf
point out in their article. “[The Constitution’s] Eighth Amendment prohibits the
infliction of ‘cruel and unusual punishment,’ but gives no examples of permissible or
impermissible punishments. Article IV requires that ‘[t]he United States shall guarantee
to every State in this Union a Republican Form of Government,’ but attempts no definition
of republican government. The Fourteenth Amendment proscribes state abridgments of the
‘privileges or immunities of citizens of the United States,’ but contains no catalog of
privileges or immunities.” (Tribe, 48).

There are many issues presented to us today that the framers would never have been able to
fathom. An example of this would be the recent controversies over the censoring of
pornography over the Internet. The Internet is a medium for communication that was far
beyond the realms of imagination only twenty years ago, so how could the framers of our
Constitution possibly set any limits to freedom of speech over 200 years ago that would be
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