Characteristics of American democracy
January 14, 2021
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January 14, 2021

From the article “Original Intent.” Original intent refers to a school of thought among judges that as much as possible, judges today should apply…

From the article “Original Intent.” Original intent refers to a school of thought among judges that as much as possible, judges today should apply the U.S. Constitution as the framers intended it to be applied, in other words, by preserving their values even if at the expense of other values. While all judges should be concerned about what the framers wanted, society today is much different than society was in the late 1700’s. How did the framers feel about red light cameras at traffic intersections, stem cell research, and the right to keep assault wespons? In fact, they did not have cameras, any knowledge of cells, or assault weapons back then. The framers decided to preserve the institution of slavery and to keep women from enjoying the equal rights that they have today, and probably no one would support turning back the clock. So, we need to temper our enthusiasm a bit over original intent. On the other hand, how can you say that a woman has a Constitutional right to an abortion when the framers probably weren’t thinking of abortion when they wrote the Constitution and when James Madison presented his draft of the Bill of Rights? That is one example of the argument in favor of original intent: How can you construe the words of a person speaking about one topic (religion, speech, press, peaceful assembly) to imply support of another completely different subject? Plus, in the words of a famous late twentieth century judge Robert Bork, “If we applied the Constitution to just those things that the framers knew about, the Constitution would eventually become meaningless.” Yet, every legal issue today must somehow be directly or indirectly tied in to the Constitution, else a ruling from the bench would be just a judge giving his or her personal opinion.

 

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From the article “Original Intent.” Original intent refers to a school of thought among judges that as much as possible, judges today should apply… was first posted on January 14, 2021 at 10:00 pm.
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