Book Review
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Authors
Issue Date
1980
Volume
13
Issue
Type
Journal Article
Language
Keywords
Alternative Title
Abstract
FIRST PARAGRAPH(S)|The central question in contemporary American constitutional law is how to develop a workable theory of constitutional interpretation without becoming impaled upon the horns of an interpretive dilemma. Those who argue that the Constitution's clauses should be applied only in the ways the framers and ratifiers would have applied them must justify why it is appropriate to permit past generations to bind current majorities with a governmental structure which can be altered only by an extraordinary majority of the governed. They must also explain how to interpret the Constitution when there is no evidence of how the framers and ratifiers would have applied it to a particular issue. On the other hand, those who argue that it is appropriate to apply the Constitution in ways that would have been rejected by its framers and ratifiers must explain the propriety of departing from the usual course of legal change--i.e.,following established substantive rules until they are modified in accord with established procedural rules. For those who make the latter argument, the task of justification is made more difficult due to the position of the Supreme Court of the United States as the primary interpreter of the the Constitution. For the Court to depart from the applications of the framers and ratifiers of the Constitution to strike down the actions of the other institutions of government opens it to the charge that it is merely substituting its own value choices for those of the elected branches, as well as departing from the past-established rules of the game...
Description
Citation
13 Creighton L. Rev. 1479 (1979-1980)
Publisher
Creighton University School of Law