FREE ESSAY ON JUSTIFICATION AND WEAKNESSES OF NON-INTERPRETIVE

JUSTIFICATION AND WEAKNESSES OF NON-INTERPRETIVE

Justification and Weaknesses of
the Non-Interpretive Model 
Brief: Justification and Weaknesses of the Non-Interpretive Model The
question of Constitutional interpretation still has yet to be resolved.
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.