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Textualism in statutory interpretation and originalism in interpreting the Constitution?
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Do you think an advocate of judicial restraint would support a narrow interpretation of the constitution or a broad interpretation?
An advocate of judicial restrain would support a narrow interpretation of the Constitution, one that adhered closely to the language of the document and his or her belief about the Framers' original intent. Interpretive ideologies such as textualism, "strict constructionism," and originalism are most often associated with judicial restraint. Contextualism, which attempts to infer intent from content, may also result in judicial restraint; however, the degree of subjectivity implicit in this method can also lend itself to judicial activism.
What does strict construction mean?
It's a legal philosophy that holds that judges should apply laws, and in particular the Constitution, as they are written rather than trying to infer things that are not explicitly spelled out. It's closely related to (Justice Scalia has called it a "degraded form of") textualism.
When was Jane Tompkins' essay Indians Textualism Morality and the Problem of History published?
Indians was published in 1986 in the influential journal of literacy critisim Critical Inquiry.
What are some of the major influences that affect court Decisions?
Ideally, Supreme Court decisions are meant to be made without external influences, with the justices relying only on what the authors of the laws and Constitution in question intended. However, they are human, and their lives and experiences have shaped their perceptions. Whether this is a negative thing is up for debate.
What is the debate between judicial restraint and judicial activism?
Judicial Restraint vs. Judicial ActivismThe role of the judiciary branch has been up for debate for centuries. This is mostly due to no specific mention of the judiciary's exact task in the Constitution, except the checks and balances and separation of powers left behind by the Founding Fathers.Another factor in the debate is how the Constitution is interpreted. The method of interpretation is highly subjective and leads to further arguments on the role and power of the judicial branch.One last factor is the personal ideology of the judges. Personal views can affect a judge's judgment significantly to the point of questioning the judge's basis for decision-making.There are six main methods of interpreting the Constitution. One is textualism, or similarly, strict constructionalism. This means solely the text is referred to.For example: "Congress shall make no law… abridging freedom of speech" means exactly "no law." However, it has the drawback that not exactly everything is stated in the Constitution.Another similar method of interpretation is contextualism, which is attempting to derive the meaning from the text. Its main drawback, however, is subjectivity. "Freedom of speech" can be interpreted in over a hundred different ways. Is treason protected? Is flag-burning protected? Public school prayer? These kinds of arguments have all been hot topics of debate.Two other methods are originalism and structuralism. Originalism attempts to discover the original intent of the framers while structuralism attempts to refer to the structure of government (checks and balances, separation of powers, etc.). However, both methods are highly subjective. It is difficult to determine the framers' original intent when they purposely left the Constitution vague and ambiguous. It is difficult to base decisions on structuralism without hard concrete proof like textualism and contextualism.Two final methods are doctrinalism and developmentalism. Doctrinalism is the basing of decisions on previous case precedents or stare decisis. This is a standard approach of the judicial system.For example Plessy v. Ferguson held against many challenges until 1954's Brown v. Board of Education decision. Developmentalism is the add-on to doctrinalism in the sense that historical events and political culture are included for interpretation. However, both methods are negative in the sense that they both detract attention from the Constitution.There have been literally hundreds of landmark cases, but only a handful that have been brought up in the judicial restraint-activism debate. Judges have been noticeably making use of contextualism until the progressivist era.For example: Plessy v. Ferguson was passed on the basis that the Constitution did not mention or intend that blacks have the same citizenship rights as whites and that segregation was unconstitutional. The ruling was not overturned until Brown v. Board of Education, which has been touted because critics say that the judges "overstepped their bounds" or became too activist in their ruling.There are many cases where critics have argued that the judges and jurors were too activist in their decision, and possibly too self-centered on their personal views. Some examples include Roe v. Wade concerning abortion. The Supreme court ruled that abortion must be legal to protect the woman's health and privacy. The court ruled that it was unconstitutional for the government or anyone else to intervene in another person's personal affairs. In the Court's opinion, nobody could tell a woman that she could or could not have a child.Another debated ruling includes Lawrence v. Texas where the court ruled that consensual homosexual sex was legal and protected by the Constitution on the basis of personal liberty. Lochner v. New York was a debated case before the progressivist era.The Supreme court once ruled that minimum wage laws were unconstitutional because they infringe on one's right to negotiate business contracts.Other highly debated cases include Mapp v. Ohio dealing with search warrants and unwarranted evidence, Roper v. Simmons dealing with the death sentence and minors (under 18), and Miranda v. Arizona dealing with the accused knowing their (Miranda) rights and what they are accused of.Other things to consider are the judges' ideology. Conservative judges are likely to be more conservative in their decisions, such as Justice Felix Frankfurter. They will be more inclined to view the Constitution as a definite document, practice judicial restraint, be pro-life, and against the separation of church and state, viewing morality as an important factor.Liberals, on the other hand, such as chief justice Earl Warren, view the Constitution as a living document that is dynamic. Liberal judges are generally activist in their decisions, pro-choice, and a proponent of the separation of church and state.Moderates, obviously, would be a mix of both.However, that is not to say that judges should be confined to rigid categories. Conservative judges have sometimes practiced judicial activism and liberal judges sometimes practice judicial restraint.The role and power of the judicial branch has long been debated. Are judges supposed to practice judicial restraint, merely interpreting the Constitution or are judges supposed to practice judicial activism, proposing new laws and precedents, which may or may not be based on the Constitution?Additionally, how exactly is the Constitution supposed to be interpreted? One thing that is certain is that judges should not lie on the ends of the spectrum. Too much judicial restraint could lead to more decisions such as Plessy v. Ferguson and Dredd Scott v. Sandford, denying African Americans equal rights, whereas too much judicial activism could lead to more decisions such as Roe v. Wade and Lawrence v. Texas, adding rights and lessening restrictions but striking down conservative views.
Did Benjamin Franklin think the constitution would last long?
Twenty years.
Is Associate US Supreme Court Justice Clarence Thomas an originalist or activist?
Justice Thomas is a self-proclaimed Originalist who consistently votes with the conservative bloc of the Roberts Court, which has a reputation for being activist, so the appropriate answer to your question is: Both.Explanation"Originalist" and "activist" are two completely different concepts. The first refers to a particular approach toward interpreting the Constitution (trying to infer what the original Framers intended), while the second term refers to an inclination to make decisions without regard for precedent or legislation, in order to shape political or social policy from the bench. "Activism" tends to be used as a pejorative to describe progressive decisions, but in reality applies equally to conservatives. "Originalism" is fairly neutral, but also relatively meaningless as it connotes conservative ideology regardless of whether the ideology can be supported by the Framer's purported original intent.Clarence Thomas considers himself an Originalist, but has allegedly never used historical citations to support his opinions, so the designation is difficult to support. People who refer to themselves as "Originalists" are typically conservative and appear to use the term to imply their decisions are more valid than those of justices who take more of a "living Constitution" approach to the law.The conservatives on the Roberts' Court have made quite a few decisions that could have been considered "activist," insofar as they have declared certain Acts of Congress unconstitutional and overturned established precedents in order to advance policies that favor corporate interests and corporate personhood (difficult to defend as Originalist thinking). One of the more notable instances of conservative activism occurred in the decision of Citizens United v. Federal Election Commission, 558 U.S. 50 (2010), that opened the floodgates on corporate campaign spending and overturned legislation restricting "electioneering communication" (propaganda) immediately prior to an election.Although we're taught the US Supreme Court is apolitical, in truth the Court has become increasingly partisan and divided by ideology. The Roberts Court has five conservative justices (although Kennedy is more moderate and sometimes votes with the progressive bloc) whose decisions tend to mirror the Republican agenda. Progressives view many of these decisions as activist, just as conservatives considered decisions of the liberal Warren Court activist.Labels such as Originalism, Textualism, Strict Constructionism and so on, describing justices' interpretive approach to the Constitution are largely subjective and often meaningless. Each side harbors a particular general ideology, and many decisions are predictable on that basis alone. Each sides believes its decisions are constitutionally correct. Each side is adept at rationalizing its decisions using established precedents and constitutional provisions.William O. Douglas: Majority and DissentJustice William O. Douglas supported this idea in his book, The Court Years 1939-1975: The Autobiography of William O. Douglas. In an anecdote about Charles Evans Whittaker, who had been assigned to write the opinion of the Court in the case Meyer v. United States, 362 US 410 (1960), Douglas explained how he came to write both the majority and dissenting opinion for the case:"In one case when the vote was five to four, Whittaker was assigned to write the opinion for the majority. I had already written the dissent and went to his office to discuss a wholly different matter. When I entered he was pacing his office, walking around his desk with pursed lips as if possessed. I asked him what was wrong. He said, referring to the five-to-four decision, that he had been trying to write the majority opinion but simply could not do it.'That's because you're on the wrong side,' I said.'Not at all. Not at all. I am right but I can't get started.''Would you like me to send you a draft of the majority opinion?''Would you, please?'"Within an hour the draft was in his office, and when the opinion came down it was one of the few in which the majority and minority opinions were written by the same man."Douglas, William O. The Court Years 1939-1975: The Autobiography of William O. Douglas. New York: Random House, 1980.
What rhymes with symbolic?
extracted from my book - aeroembolism biracialism embolism evangelism idolism infantilism martialism mediaevalism medievalism mercantilism mongolism mongrelism (National) Socialism necrophilism nihilism pointillism pugilism racialism (state) socialism syndactylism thromboembolism zoophilism bimetallism cannibalism capitalism centralism commensalism communalism fatalism feudalism legalism liberalism monometallism myalism neutralism polytonalism provincialism revivalism specialism teetotalism tribalism vandalism vitalism bilingualism bisexualism dualism gradualism individualism intellectualism sensualism textualism trilingualism
What has the author Miriam Jones Shillingsburg written?
Miriam Jones Shillingsburg is a scholar and editor known for her work on textual editing and feminist criticism in literary studies. She has written and edited several books and articles on these topics, including "Pioneering Women of American Literary Scholarship" and "Editing Women: Early Modern Women Writers and the New Textualism".
How did the US Supreme Court case Youngstown Sheet and Tube v. Sawyer 1952 effect the growth of Presidential power?
Youngstown Sheet & Tube v. Sawyer, 343 US 579 (1952)AnswerThe Youngstown case (more commonly known as the Steel Seizure Case) checked President Truman's power because he had overreached the authority granted the President in Article II of the Constitution, and had acted without consent of Congress when he attempted to seize control of the nation's steel industry during the Korean War.ExplanationTruman issued Executive Order 10340 in an attempt to avert a United Steel Workers' strike scheduled to begin on April 9, 1952, by ordering the Secretary of Commerce to take control of the steel industry. In the President's opinion, a strike would disrupt production of war supplies, jeopardizing national defense. He believed he was justified in using "emergency war powers" without consulting Congress.There were less drastic options available to President Truman that could have accomplished the same goal. For example, he could have asked the US Attorney General to file an injunction against the strike under the Taft-Hartley Act of 1947, which had a provision for protecting industry in the interest of national safety.Sec. 208. [Sec. 178. Injunctions during national emergency](a) [Petition to district court by Attorney General on direction ofPresident] Upon receiving a report from a board of inquiry thePresident may direct the Attorney General to petition any district courtof the United States having jurisdiction of the parties to enjoin suchstrike or lockout or the continuing thereof, and if the court finds thatsuch threatened or actual strike or lockout--(i) affects an entire industry or a substantial part thereof engagedin trade, commerce, transportation, transmission, or communicationamong the several States or with foreign nations, or engaged in theproduction of goods for commerce; and(ii) if permitted to occur or to continue, will imperil the nationalhealth or safety, it shall have jurisdiction to enjoin any such strikeor lockout, or the continuing thereof, and to make such other ordersas may be appropriate.According to Maeva Marcus in her book, Truman and the steel seizure case: the limits of presidential power, the President and his White House staff discussed this option and rejected it because of the uncertainty that a District Court would grant an injunction. Truman also believed Taft-Hartley to be a poor solution because the Act put pressure on the unions to settle, while Truman believed the onus should be on the steel industry, which he believed was engaging in unfair labor practices.The steel industry filed for an injunction against the seizure in US District Court for the District of Columbia, which was granted by a Judge Pine on April 30, 1952, and then stayed by a three-judge panel of the US Court of Appeals for the District of Columbia on May 1.With both lower court decisions favoring the steel industry, the Department of Justice quickly drew up a petition for a writ of certiorari and hand-delivered it to the Clerk of Court of the US Supreme Court by mid-morning May 2. Much to the DOJ's surprise, the steel industry had preemptively petitioned the Court earlier that morning - an unusual, but allowable, strategy for the winning party at the lower court level. Filing the first petition gave the steel industry the advantage of choosing to open and close oral arguments before the Supreme Court.The Supreme Court granted certiorari by a vote of 7-2, and assigned the case for argument on Monday, May 12. Meanwhile, the Court continued the Circuit Court's stay, with the stipulation that the United States "take no action to change any term or condition of employment while this stay is in effect unless such change is mutually agreed on by the steel companies...and the bargaining representatives of the employees."In the DOJ's brief, the questions before the Court were whether the President had the constitutional authority to seize the steel mills in order to avert a nationwide strike; whether the District Court had erred by ruling on constitutional issues in a motion for preliminary injunction; and whether granting the injunctive relief was a proper remedy in this case.Supreme Court DecisionIn a 6-3 decision issued June 2, 1952, Justice Black delivered the opinion of the Court, which clearly expressed the Court's belief that President Truman had no authority and no statutory basis for attempting to seize the industry:"The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. Indeed, we do not understand the Government to rely on statutory authorization for this seizure."There are two statutes which do authorize the President to take both personal and real property under certain conditions. However, the Government admits that these conditions were not met and that the President's order was not rooted in either of the statutes. The Government refers to the seizure provisions of one of these statutes (§ 201(b) of the Defense Production Act) as 'much too cumbersome, involved, and time-consuming for the crisis which was at hand.'"Moreover, the use of the seizure technique to solve labor disputes in order to prevent work stoppages was not only unauthorized by any congressional enactment; prior to this controversy, Congress had refused to adopt that method of settling labor disputes. When the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency. Apparently it was thought that the technique of seizure, like that of compulsory arbitration, would interfere with the process of collective bargaining.Consequently, the plan Congress adopted in that Act did not provide for seizure under any circumstances. Instead, the plan sought to bring about settlements by use of the customary devices of mediation, conciliation, investigation by boards of inquiry, and public reports. In some instances temporary injunctions were authorized to provide cooling-off periods. All this failing, unions were left free to strike after a secret vote by employees as to whether they wished to accept their employers' final settlement offer."It is clear that if the President had authority to issue the order he did, it must be found in some provisions of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that 'the executive Power shall be vested in a President * * *'; that 'he shall take Care that the Laws be faithfully executed'; and that he 'shall be Commander in Chief of the Army and Navy of the United States.'"Excerpt:"Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that 'All legislative Powers herein granted shall be vested in a Congress of the United States * * *.' After granting many powers to the Congress, Article I goes on to provide that Congress may 'make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.'"Excerpt:"The Founders of this Nation entrusted the law making power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand."The judgment of the District Court is affirmed."Justice Robert Jackson's Concurring OpinionFive justices wrote concurring opinions in the Steel Seizure Case. Justice Robert Jackson's is the one most often cited as setting the standard for appropriate separation of powers between the Executive and Legislative branches. Jackson's approach was more flexible with regard to interpreting some of the Constitution's vague language, and divided Presidential authority relative to Congress into three categories:"While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.""1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate....""2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility....""3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter."SummaryIt is possible to equivocate with the conclusion that the Court's decision succeeded only in checking the President's power, drawing a line in the sand over which he could not cross, although it did. But Justice Jackson's concurring opinion (which is cited more often than the official Court opinion), introduces some shades of gray into an otherwise black and white issue, that allows some flexibility in the President's role.While Originalists and Textualists may argue that the Constitution has a fixed and definite meaning, and that the only powers each branch can exercise are those enumerated in their respective Articles, Justice Jackson, whose interpretation tends more toward Structuralism, notes that,"I did not suppose, and I am not persuaded, that history leaves it open to question, at least in the courts, that the executive branch, like the Federal Government as a whole, possesses only delegated powers. The purpose of the Constitution was not only to grant power, but to keep it from getting out of hand. However, because the President does not enjoy unmentioned powers does not mean that the mentioned ones should be narrowed by a niggardly construction. Some clauses could be made almost unworkable, as well as immutable, by refusal to indulge some latitude of interpretation for changing times. I have heretofore, and do now, give to the enumerated powers the scope and elasticity afforded by what seem to be reasonable practical implications instead of the rigidity dictated by a doctrinaire textualism."To read the the Supreme Court's opinions in Youngstown Sheet & Tube v. Sawyer, see Related Links, below.
What is the importance of a oposing opinion?
Even though dissenting opinions are not the law, they can be important in many ways:Dissenting opinions can help us understand the meaning and implications of the majority opinion. Because the dissenting opinion often tells us what the majority does NOT stand for, dissenting opinions can help map out the boundaries of the majority opinion, which can be useful in later cases. Often, it is not always clear what the Court is holding and what the implications of the outcome are when the Court's opinion is first issued. Dissents often draw out the issues of the case and pick apart the majority's rationale so that we can better understand what was really at stake, and how we should broaden and narrow the majority's holding for future cases to avoid potentially adverse results.Dissenting opinions help us predict how justices will come out in future cases. The different justices on the Court have different theories of jurisprudence, and these jurisprudential theories (textualism, etc.) can often affect how a judge decides a case. Because dissenting opinions are often written by only one or two judges, this is where a justice can really showcase his or her theories on the law, which can help us understand how that justice thinks, and how the Court is thinking in general. Again, this can be helpful for both lawyers and lower court judges alike when formulating arguments and opinions in future cases.Dissenting opinions can show us the limits of the majority's holding. This is similar to number one, but I cannot emphasize enough that judicial decisions can be ambiguous and interpreted to have either broad or narrow implications. The arguments in the dissent can show us WHY the majority's opinion SHOULD have narrow implications, even though it is currently the law.Dissenting opinions show us where the "fight" was.Again, this is similar to number one, but if we know where the "fight" was, we might also be able to predict how the case can best be overturned or narrowed to the point of insignificance. We might also be able to learn why the case was significant if it is not apparent in the majority opinion.Dissenting opinions can help us react. By showing the implications of the majority's opinion, dissenting opinions can help the public and the legislature react to the majority's ruling.An excellent example of this is Kelo v. City of New London, 545 U.S. 469 (2005). Here, the U.S. Supreme Court ruled that pure economic benefit qualified as a "public use" under the Takings Clause of the U.S. Constitution. This means that, as a Constitutional floor, the government can take land from a private property owner by eminent domain if it is part of a purely economic redevelopment plan. Justice O'Connor wrote a scathing dissent, arguing that the result of this decision would be that the rich would benefit at the expense of the poor -- any Motel 8 could be replaced by the Ritz in the name of "economic redevelopment." As a reaction, more than 40 states enacted legislation limiting the scope of eminent domain to avoid the adverse results of the Kelo decision. O'Connor's dissenting opinion may have aided the state governments in justifying this response.
What is the song Twinkle Twinkle Little Star all about?
Poetry in general is contemporarily thought to mean whatever you can demonstrate that it means, devoid of authorial intent, based upon the words and other poetric devices contained within the text. This is a way one can think of the concept of "formalism" or "textualism." In many ways also, by intentionally disregarding any statements of intent by the author, which recent schools of thought that are in the academic mainstream view as a Capitalist construct separete from any true meaning, is a way to understand the concept of "the author is dead." In this way, one can more easily understand the thinking behind this authorial obliviation, one of the precepts which originated with Marxist theoreticians in the late 1960s and that has been integrated into post-modernist critical theory as one of its central pillars, among others. So what does it mean to you? The narrator begins by asking a question, rhetorically. What are you? Above the world, high above, precious and shimmering. That which exists only when the sun is gone, perhaps unable to be seen unless there is darkness upon the world. Twinkling. Inconstant, fluttering, perhaps unsure. For those looking for their place in the world, unsettled, the travellers, there is the idea that without that pinhole of light, blinking, that none could know their direction. This presupposes that travellers do not, for whatever reason, journey during the light of day. Perhaps something or some force makes those who have not yet found their place unable to journey while the sun lights their path, intentions, etc. And in the last two stanzas, there is this idea that the narrator feels themself perhaps like one of those travellers, though maybe for whatever reason themselves not yet able or ready to make their own journey. Yet, they are comforted by the knowledge that this noctural beacon exists. But, a beacon to where? A beacon of what? Leading to what? The reference to a spark, akin to invention, or ingenuity is a comparison made. Now, however, instead of lighting a path for the traveller, it is said that it "lights the traveler in the dark" perhaps indicating that it has no desire to protect or guide, but can be whatever one perceives it to be. As guide, or betrayer. Yet, despite the uncertainty, the unknowing of its nature, there is a final appeal to continue, twinkle, little star. It is not about a star that twinkles, so it twinkles, or any other such nonsensical non-responsive blathering idiocy that has been here nearly a decade making everyone who reads it dumber for having read it.
