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The Non-Interpretive Model

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Brief: Justification and Weaknesses of the Non-Interpretive Model The

question of Constitutional interpretation still has yet to be resolved.

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Should only the explicit commands of our nation’s Founding Fathers be

referenced in courts of law, or can it be justified that an outside body

should extrapolate from the specific text of the Constitution to define

and defend additional fundamental rights? Further, if this body, namely

the Supreme Court, bases its decisions of constitutional relevance not

wholly on exact interpretation, then regardless of reason, are they

wholly illegitimate? The non-interpretive model allows the Court to

interpret beyond the exact wording of the Constitution to define and

protect the values of a society.

The question of how the

non-interpretative model can be justified must be answered. Despite

much remaining confusion between the two models, it is clear that

history has chosen the non-interpretative model without which many of

the defining points in our nation’s history would be unjustified. The

overwhelming strength of the non-interpretive model is that it has

allowed for many fundamental decisions that have served to protect

the natural rights of the members of this society.

If on the other hand

the interpretive model is to be accepted, a significant number of

decisions must be revoked. Briefly, the majority of the due process

clause is no longer justified. Fair criminal and civil procedures must be

dismantled since they have no specific textual reference in the

Constitution. Freedom of speech, religion, and property rights are all

called in question. Also affected is the legitimacy of franchise and

legislative apportionment bodies of doctrine. The equal protection

clause of the Constitution when read literally outlines the defense of

some forms of racial discrimination. However, it does not immediately

guarantee the right to vote, eligibility for office, or the right to serve

on a jury. Additionally, the clause does not suggest that equal-facility

segregation is not to be allowed. Finally, the freedom from cruel and

unusual punishments as outlined in the eighth amendment loses its

flexibility. In this manner, a prima facie argument against the

interpretive model is evident. Without the ability to move beyond the

specific wording, the Court loses its authority to protect what society

values as basic human rights. A fundamental question relevant to this

debate is whether or not values within our society are time-enduring

or changing. When the Supreme Court makes a controversial

decision, does it use the text of the Constitution to legitimize principles

of natural law, social norms and arrangements? Or, is it acting as an

interpreter of slowly changing values and imposing its views on society

through its decisions? The Constitution is not a stagnant document; it

is very much alive and changing with the times. Critics argue that the

amendment process was created to allow change and that the role of

the Judiciary does not include the power to change stated commands

in addition to that of enforcing them. However, in many cases, the

amendment process is inadequate for clarification of issues of human

rights. A great virtue of the non-interpretive model is that the Court

has the power to strike down unconstitutional legislation that allows

for the Court to preserve the rights of the people. Non-interpretation

then requires the application of understood codes, yet the

decision-making process is far from mechanical. Critics contest that

the Court should not have the ability to interpret societal values in a

given period of time. However, as has been shown, history has upheld

this tradition. A number of questions now arise. Is it practically wise to

place the responsibility to define and protect human rights in the

hands of Supreme Court Justices? The answer lies in one’s

interpretation of history. While it is true that the Court has made

decisions that reflect its own biases and interests, it can be shown

that the Court has also consistently acted to secure the rights of

citizens and to limit federal and state powers. Following, is the

definition and enforcement of human rights a judicial task? The

adjudication of the Supreme Court over issues of human rights as

opposed to this power residing in other branches of government must

be answered. While there is no direct statement regarding judicial

review in the Constitution, Marbury v. Madison is referenced here as

the greatest of all cases justifying this judicial power. Thus arises the

penultimate question of the authority of the Supreme Court.

Constitutional adjudication was allowed for implicitly by the Founding

Fathers. Only some of the principles of higher law were written down

in the original document; however, the distinction between those laws

protecting natural rights and positive law was a well-understood one.

The ninth amendment allowing for due and proper legislation is the

expression of the existence of further principles of higher law not

specifically written into the Constitution. The Marshall Court is a prime

example of the manner by which the Supreme Court would act as the

enforcer of both written and unwritten natural rights. Through the

mid-nineteenth century unwritten constitutional law was referenced

during many controversial debates, notably allowing for the protection

of contracts, the institution of labor regulation, and the restraining of

taxation. Continuing through the twentieth century, unwritten rights

were upheld allowing for the advancement of laissez-faire capitalism

and restraining the powers of state governments against impinging on

the natural rights of its citizens. Finally, through the most recent

decades, the non-interpretive model has allowed for the right to

privacy, freedom of expression, women’s suffrage, de-segregation of

schools, and general equality for all citizens under law. Hence, the

Constitution itself is inadequate if read in the interpretative model, for

it says nothing of many of the rights American society values as

indispensable. There exists a long-standing tradition of belief in natural

rights within American civilization. The Constitution textually defined

only a portion of these and left the outline of those remaining to be

defined and protected by an undeclared institution. The court filled this

role through the function of judicial review and the power vested by

the 14th amendment. The Founding Fathers had no intention of

declaring every human right; rather, they created a system by which

future generations could modify existing legislation in the context of

contemporary codes. Since that time, a vast number of crucial cases

in U.S. history have required extrapolation beyond the exact written

words of the Constitution. Without which the rights of the citizens of

this society would be far less secure and well defined. Hence, one

recognizes the superiority of the non-interpretive model. There are

several weaknesses to the non-interpretative model of Constitutional

review. One such weakness deals not with the content of declared

rights but with the manner by which they come about. Despite that

the equal protection doctrine, the right to privacy, and freedom of

association are good and may be based on reason, they do not stem

from interpretation of the written Constitution. Therefore, critics argue

that they are wholly illegitimate. The Court now becomes an arbiter of

fundamental value choices, and if these are defined by the

Constitution, the Court need not intervene. Yet, it matters less how

these rights come about if the majority of society recognizes them as

fundamental to a functioning democracy. Additionally, one must return

to the recognition that values change within a society and the

Constitution cannot fully allow for all rights needed in contemporary

society. Secondly, critics argue that Marbury v. Madison is a weak

grounds for the non-interpretive model. It is said that this decision

revolved around a highly technical provision of the Constitution. Indeed,

there is merit to this criticism, for the logic used by Marshall does not

wholly justify the use of this case as the deciding factor in the outcome

of Supreme Court cases involving constitutional interpretation.

However, the 14th amendment and the due process clause further

allow for such interpretation. Thirdly and most importantly, advocates

of the interpretive model argue that the Supreme Court is not an

unbiased institution and should not have the power to define the

present values of American society. The outcomes of many Supreme

Court cases have exhibited the biases of the judges deciding the case.

Critics then ask the question, if the Court is also vulnerable to opinions

and biases, why ought the Court to have the power to declare the

limits of natural rights and set down national ideals? They argue that

there is little reason why the legislative body should have this power.

This is perhaps the most difficult of criticisms to the non-interpretive

model. Because the Court contends with this difficulty in justification of

many decisions, it has used poor legal history and unclear use of

constitutional language to support cases that could be justified just as

well with current moral and political notions. While this tendency of

the Court is deplorable, the truth is inescapable that the cases

allowing for many of our most basic rights cannot be justified simply by

reference to the Constitution. Hence, the Court has invoked the

generality of the Constitution to define and defend vested rights and

general principles of democratic society. To conclude, without the

ability to move beyond the explicit text of the Constitution, a great

number of crucial decisions in U.S. history must be overturned. The

simple fact is that the interpretive model cannot allow for the

justification of many of our most sacred rights. While criticisms as to

the justification of the power of the Court to discern the values of

contemporary society are legitimate, history as well as the citizens of

this society have long declared the non-interpretive model superior.

Cite this The Non-Interpretive Model

The Non-Interpretive Model. (2018, Aug 09). Retrieved from https://graduateway.com/non-interpretive-model/

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