What is the Best Method of Constitutional Interpretation: Minimalism, Originalism, or Living Constitutionalism?

Constitutional interpretation stands for the procedure of assigning meaning to words in a constitution. It is performed in order to make possible the execution of justified legal decisions. The current paper will demonstrate that minimalism is the best method of constitutional interpretation, as this approach allows reaching partially theorized agreements, which are highly necessary for a diverse society.

Facts demonstrate that minimalist judging proceeds along two dimensions. Firstly, judicial opinions are supposed to be narrow rather than wide, resolving the case at hand, at the same time eluding pronouncing regulations for deciding on future cases. Secondly, judicial opinions are supposed to be shallow instead of being deep, helping in avoiding huge theoretical disagreements, debates, and basic principle issues (Sustein 42). It presupposes that judicial opinions have to depend on partially theorized agreements instead of providing judges with a possibility to make varied philosophical commitments (Sustein 44). Importantly, minimalism begins with a presumption of deference to the political branches. It self-deliberately eludes the invalidation of operations of the executive and legislative branches either by defending them on the merits or by utilizing different methods for eluding constitutional questions (Sustein 42). It helps in recognizing the restricted function of the federal judiciary, providing huge scope for democratic self-government (Sustein 44). Moreover, minimalism assesses a solid version of stare decisions, which reveals that respective and appropriate adherence stimulates predictability and stability, saving and supporting the court’s institutional concerns (Sustein 44). Therefore, minimalism actually promotes itself in a form of a hedge against judicial supremacy.

Sunstein’s book Radicals in Robes appears to be a criticism of fundamentalism (also known as originalism), which stands for a view followed by an accumulation of scholars, judges, and Justices with a specific conservative agenda in the name of courts in general, and the Supreme Court in particular (Sunstein 133). Nevertheless, the key deficiency of Sunstein’s book, as a work of constitutional theory, is the fact that the suggested minimalism, as a fundamental ground for the fundamentalism criticism, miscarries in engaging fundamentalism in two major ways (Sunstein 134). Firstly, the deficiencies of fundamentalism are mainly independent of the minimalism merits (Sunstein 134). Secondly, a set of commitments, which characterize fundamentalism as being a constitutional theory, are not even addressed by minimalism (Sunstein 134). Sunstein seriously addresses the defects and deficiencies of fundamentalism and demonstrates that the most serious deficiency stands for core positions of fundamentalists, which merely appear to be inconsistent with their claimed commitment to original cognition. In fact, the scholar defines some fundamentalists as “false fundamentalists” (Sunstein 134).

Additionally, affirmative action appears to be the best example for this case. There is merely any proof that affirmative action is inconsistent with original cognition of the Equal Protection Clause (Sunstein 138-142). The criticism of national security fundamentalism appears through such lines as: “Here, as with affirmative action, many fundamentalists do not follow their own creed” (Sunstein 152). The author demonstrates that fundamentalists’ perspective on power separation and the non-delegation doctrine appear to be unsupported by their methodology (Sunstein 204). Sunstein also criticizes other essential planks of the fundamentalists theoretical platform, encompassing gun control, campaign finance, and commercial speech libertarianism, which cannot be viewed as commitment to original understanding and contradict it (Sunstein 26).

In addition, Sunstein also addresses the issues concerning privacy, establishment of religions, and the power of Congress to pass environmental and antidiscrimination laws, which actually leads to the emergence of a discrepant argument (70). The academic does not concede the argument from text and history on these points, regardless of the fact that he attempts to acknowledge defects in them (70). He actually defines a reason for rejecting the fundamentalists’ position which surpasses their inconsistency.

The subsection “Why Fundamentalism is Indefensible” helps Sunstein in offering the suggestion concerning the fact that fundamentalism might produce “bad results” (Sunstein 71). The author demonstrates that the objection to fundamentalism on the grounds of possible intolerable consequences is not unacceptably “result-oriented” (Sunstein 71). He explains that any approach to interpretation has to be defended and not merely celebrated. Thus, in case when some methodology might lead to intolerable results, it is hard to defend (Sunstein 72). A solid example is equipped in the case of Establishment Clause discussion (Sunstein 223). The author illustrates Justice Clarence Thomas’s position regarding the fact that a state might officially single out a specific religion, which it desires to favor. As a matter of fact, the First Amendment’s Establishment Clause was specifically devised to prohibit the federal government from performing such action, while at the same time allowing the states to execute it (Porter 346). Sunstein claims that such view cannot be regarded as improbable, but it might lead to radical alterations in American life and law (Sunstein 225). The author also debates that there is an analogous argument line with regards to the rights of privacy and the existence of the regulatory state. It is obvious that minimalism appears to be more appropriate to the abruption of these positions (Sunstein 225). It is because they appear to be radical propositions, while minimalism cannot be regarded as either radical or preferring huge alterations (Sunstein 225). Nevertheless, an argument, which presupposes simple rejection of conclusions as they are viewed to have intolerable results, stands for a claim, which moves too rapidly in inviting judges to expound the law on the basic foundations of favorable outcomes (Sunstein 225).

Therefore, Radicals in Robes seriously convinces that the fundamentalist agenda stands for the radical change. Hence, such type of fundamentalists’ radicalism is inconsistent with the judges’ function and role. It is highly important to understand that minimalism chiefly incorporates a theory concerning the incrementalism virtues, the hazards of any complete judicial agenda pursuit, the valuables of stare decisis, together with the valuable of providing space and time to complicated societal issues in an affirmative manner. These points actually concern the normative pronouncement methodology. Such a dimension frequently appears to be perpendicular to the dimension of asking what the most plausible understanding of the Constitution’s meaning is (Sunstein 72). They are majorly connected to determinations how limited, obsequious or aggressive the Court is supposed to be in different situations, how rapidly the Court is supposed to move in regards to its individual interpretation of constitutional text pieces, how much esteem should be paid to precedent, and so on.

Therefore, while analyzing Sunstein’s view, it is significant to understand what the author thinks about the theoretical core of the fundamentalists’ position. Sunstein actually proposes simply a remarkably pragmatic approach to interpretation, as he outlines that fundamentalists obtain a lot of rhetorical scope out of the requisition concerning the fact that their approach is neutral at the same time when others are merely an issue of “politics” (Sunstein 72). He believes that there is nothing neutral in fundamentalism. It represents a political choice that should be defended on political grounds. In a case when it leads to a far worse system of constitutional law, then it appears to be strong point against it (Sunstein 72).

In accordance with Sunstein, there is another manner, in which minimalism can overcome fundamentalism. One of the most solid arguments in support of fundamentalism stands for the fact that perfectionism (closely related to living constitutionalism) is its single serious alternative, at the same time when perfectionism cannot be regarded as acceptable. Instead of taking fundamentalism's inappropriateness to be the ground for perfectionism, Sunstein’s argument takes the inadequacy of perfectionism to be a ground for fundamentalism (Porter 347). Thus, Sunstein’s minimalism appears to be the mean of refuting this argument. Robert Bork’s, Scalia’s and Thomas’s nomination together with the overall fundamentalist group appeared in a form of a reaction to the perfectionist (close to living constitutionalism) propositions of the Warren Court (Porter 347). In fact, Sunstein has an objective of sustaining the available alternative to this. Nonetheless, fundamentalism or originalism do not appear to be the appropriate response and reaction to perfectionism or living constitutionalism. There are myriads of possible responses, while minimalism appears to be merely one of the possible reactions.

Wilkinson believes that minimalism appears to encourage caution and restraint (97). In fact, Sunstein exhorts judges to reveal as little information as possible in order to leave plenty of breathing room for the elected branches. In addition, the theory surpasses its manner to be apolitical. The scholar proudly proclaims that minimalism “does not dictate particular results” and cannot be ‘easily characterized as liberal or conservative” (Wilkinson 34). Such an approach, in fact, echoes many of the analogous values, which juridical restraint attempts to vindicate, stimulating judges to elude the political thicket enhancing the legitimacy of their ruling (Sunstein 98). Further, Wilkinson demonstrates that regardless the fact that Sunstein himself features minimalism as no “ordinary form” of juridical restraint, the truth is that as he applies it, it is no form at all (97). Hence, while minimalism encourages judges to be modest in their tone and prose, it at only slows down, but does not stop them from taking the law whatever they see fit.

Finally, a living constitutionalism views the Constitution as one, which develops, alters with the time, and adjusts to innovative settings, without being officially and formally amended. Nevertheless, there is no practical disjunctive to a living Constitution. Currently written Constitution has been adopted 220 years ago. Despite the fact that can be amended, this procedure appears to be highly complicated. The most essential amendments and changes have been adopted approximately 150 years ago, while all later amendments typically dealt with comparatively minor issues (Wilkinson 13). Scholars who write about constitutional law, highly rarely utilized the term the living constitution. The Constitution is believed to be a rock-stable and solid foundation, being the increment of the most fundamental principles. It is actually the whole idea and concept of having a constitution. In fact, a living Constitution obviously appears to be a manipulable one. In a setup when the Constitution alters from time to time, people (meaning group of judges) who alter it, perform this in accordance to their individual ideas and concepts concerning the ways the Constitution should look. Therefore, a living Constitution becomes not a Constitution at all, it cannot even be regarded as a law any more.

Living constitutionalism claims the virtue of incorporating the common law method in constitutional adjudication. This approach is advantageous in accordance to living constitutionalists, because of the desirable incrementalism and inherent adaptability of the common law approach. Hence, it appears that the common law has evolutionary rather than a revolutionary nature. In fact, incrementalism appears to be the “common-sense notion” of traditionalism, which holds that any radical reexamination of existing ways of doing thing is likely to discard good practices and is unlikely to find many better ones” (Wilkinson 15). Therefore, the development of a constitutional libel doctrine and a free speech doctrine appear to be a shining ample of the above-mentioned incremental method at work, due to the fact that they fitfully developed with the time, in the process where principles and standards were tried and eventually accepted or modified in the light of experience and an ongoing, explicit assessment of this principles as a matter of policy (Wilkinson 16). Nevertheless, living constitutionalism is vulnerable in numerous ways. There are based on modern definitions of terms like ‘equality” and “commerce”.

With respect to equality, living constitutionalism has played an important part in adapting the Constitution itself, as well as alerting the elected branches to the need for moving on their own, towards the eradication of invidious discrimination in the U.S. In regards with commerce, living constitutionalism has given a modern understanding to the forms of commerce, which have evolved in American life and has granted congress the tools to deal with commercial development that are both integrated and interstate. In fact, in the willingness of allowing the political branches to pursue more modern conceptions of equality and commerce, living constitutionalism has made no small contribution and has been more of a restraining force on judges, in opposition to originalism or even minimalism. However, there is a huge discrepancy between courts permitting the elected branches to refer current issues and judges initiating this in order to perform it on their own. It is living constitutionalism’s willingness that blurs this distinction that is among it large infirmities. Whatever the virtues of living constitutionalism might be, juridical restraint is not among them (Wilkinson 19).

Living constitutionalism, both in theory and practice, has promoted judicial self-confidence over resignation, audacity over decency, and interventions over restraints (Wilkinson 19). Initially, the theory is ‘anti-democratic’ in heart. In case when the goal is positive entitlement or substantive rights to privacy, living constitutionalism requires judges to execute a task of originating and formulating a better world. It is actually replete with vague exhortations concerning ‘human dignity’, evolving norms of decency and the perceived demands of justice and society requirements. Importantly, living constitutionalism comes perilously close to abandoning the posture of restraint that makes juridical authority acceptable in the first place. It turns it into a complete inversion of democratic primacy and turns the constitution’s foremost premise of popular governance on its head (Wilkinson 20). In addition, Wilkinson states that fruits of living constitutionalism, which are produced outside of proper democratic channels cannot even be repaired inside these channels.

Minimalism is highly different from originalism and living constitutionalism with regards to the issues of abortion or death penalty. Minimalists agree that the constitution allows reasonable limitations on the right to select abortion. In the case when the states desire to ensure that the selection of abortion is adequately informed, or to require a serious consultation with doctors before abortion is selected, the constitution should not stand in the way (Wilkinson 108). On the other hand, fundamentalists are in favor of restraint (meaning respecting democratic prerogatives) concerning abortion, discrimination on the ground of sexual orientation, and protection of criminal defendants (Wilkinson 108). Furthermore, living constitutionalists are restrained where their fundamentalist counterparts are activists, and vice-versa. Thus, minimalism appears to be particularly appropriate in morally complex cases (Wilkinson 108).

The current paper demonstrates that minimalism is the best method and approach to constitutional interpretation. It does not revolutionize the law by referencing to first principles. It allows showing a large measure of mutual respect. The approach suggests that social peace and the law are possible only when people are ready to adjourn their innermost disparities and are capable of resolving what to do without agreeing on precise reasons to do it. Hence, the paper demonstrates that minimalists view constitutional law an assortment of partially theorized agreements, in which judges accept a specific approach to equality, free speech, or religious freedom, without inevitably arranging and conforming on the innermost essentials of that approach. In fact, originalism and living constitutionalism do not seem to make sense for the U.S. at the present time. Originalism would make people much less free, while the living constitutionalism will make the system less democratic, lading to fatal defects.