Written over 2 centuries ago, the Constitution is still the guiding light for the United States when it comes to just about every legal question. However, did the framers intend for courts and judges to take their words literally? Or was it meant to be a living document that would change as the times changed?
Supreme Court Justice Antonin Scalia claims in his speech from 2005, titled "Constitution Interpretation" that judges should take the framers words literally, and not allow the Constitution to change with the times. His stance on taking the Constitution literally is known as being an originalist. Scalia argues that if the Constitution is allowed to change, then anyone could give whatever meaning they wanted to to the words in the Constitution. The Constitution would change to fit the needs of the people (especially judges, political parties, and lobbyists) and would lose its rigid structure of lawfulness. Scalia points out that the phrase 'substantive due process' was something added to help interpret the Constitution based on what the American people needed at the time. Basically, the Court has the power to interpret the Constitution however they want in court cases because of the substantive due process phrase. Another important tenant of Scalia's argument is that the Constitution grows and changes based on political needs. The conservatives want abortion outlawed....ect. The Democrats want abortion legalized ....ect. Both groups of people interpret the Constitution differently based on what they personally want to see happen. From an originalist standpoint, abortion is legal already, because outlawing the right to abortion would be unconstitutional. There is no point debating it.
Supreme Court Justice Stephen Breyer argues in Active Liberty: Interpreting Our Democratic Constitution also in 2005, that the Constitution should be interpreted on a case by case basis. Breyer states that the framers of the Constitution barely agreed on including major points in the Constitution (like the Bill of Rights), that they wouldn't have all agreed on how to interpret each significant point. Thus, judges shouldn't all interpret them the same way today either. Justice Breyer also objects to the idea that all judges would rule based on their own personal agendas. He claims that judges know the power of their decisions in making way for legal precedents, rules, standards and how each one would not only affect the country, but the world. In very few cases would someone purposefully obstruct future proceedings for personal agendas.
However, as time has marched on, there has been an increase in presidential powers. Specifically in cases involving military action, presidents have executed swift power moves by quickly implementing their decisions. Overall, the Constitution is pretty vague when it comes to explaining presidential powers. Article II, Section 2 states, "(the) President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." The Constitution does not explain how the president should use those powers, just that they have the right exercise them.
John C. Yoo argues in Memorandum Opinion for the Deputy Counsel to the President in 2001 that the president should have unilateral war powers. Yoo states that since power is there is a huge centralized power within the presidential role, it was meant for the president to exercise his powers swiftly especially when it comes to matters of national defense, foreign policy, and threats. Since there is only one person in charge of the executive branch (versus multiple Supreme Court Judges, and hundreds of members of Congress) the framers intended for presidential actions to be made much more swiftly compared to any other branch. Yoo goes on to argue that the Constitution resolves that any uncertainties within the executive power must be decided in favor of the executive branch. Hence, the Constitution is vague when explaining executive powers, thus when any issues arise, the power must be given to the executive branch.
On the other hand, Michael Cairo points out in the article "The Imperial Presidency Triumphant" published in Executing the Constitution in 2006, that within the last few presidencies the executive power has expanded far more than the framers had intended. He goes on to state that broad military powers were given to Congress (like raising a military, allocating funds, officially declaring war, and regulating commerce). And the president originally was only supposed to nominate ambassadors, negotiate treaties, and direct armed forces (after war has been declared by Congress). The Clinton and Bush administrations set a new precedent, elevating the power of the president when it comes to the Commander-in-Chief position. They were involved in several wars and deployed thousands of troops, all without the official approval of Congress.
On a personal level, I do believe that the Constitution should be interpreted more literally than abstractly. If we allow courts to interpret the Constitution differently based on the changing times, it makes it all too easy to make a decision based on personal feelings in the case, and create legal precedents that shouldn't be followed. Court decisions should be based on the original meaning of the Constitution and by past precedents.
I side in the middle of the presidential unilateral power debate. I whole heartedly believe that the executive branch should have the power to make swift decisions when it comes to foreign policy, foreign threats, and war (after all, we have seen just how impossible it is for Congress to come to an agreement in a timely matter). However, I also whole heartedly believe in our system of checks and balances. The executive branch needs another branch to oversee and check on its use and overuse of power.
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