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Introduction: Confounding the Constitution: Treason in the Courts
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12158 |
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MODERN THOUGHT
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3 / 1994 |
536 Words |
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"We the People ..." So begins the oldest written constitution still in effect today. Its authors hoped that future generations of Americans would have the foresight and imagination equal to their own to preserve the "sacred fire of liberty."
For two centuries the Constitution has provided America with an effective and responsive framework for government. William Gladstone proclaimed the Constitution to be "the most wonderful work ever struck off at a given moment by the brain and purpose of man."
Looking at the restless state of postmodern America, we would do well to remember the origins of our nation and recall the work of those who laid the foundations of our society and fashioned our system of government.
In recent years, a heated debate has arisen among legal scholars and jurists over the subject of constitutional interpretation. Judicial activists believe that the intent of the framers of the Constitution is not discernable or applicable to our lives today. They would have us interpret the Constitution according to "evolving standards of morality." They rely less on the language of the document than on this "spirit." Justice William Brennan, for example, has said that "what the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time." Legal scholar Ronald Dworkin omits constitutional interpretation almost entirely. He argues that judges should not consider what the framers had in mind, but rather should look to the enlightened understanding modern Americans have today as a basis for deciding questions of law.
Of course, such loose reasoning leads to the problem that the judges can read into the Constitution anything they want--indeed, it has left us with a rule of justices--of men--rather than a rule of law. Moreover, what this means is that in America today we have two "constitutions": a symbolic Constitution written in 1787; and a fluid, unwritten constitution that has emerged by trial and error through the courts.
This month legal scholar Gerard Bradley brings us to the heart of the contemporary controversy surrounding the Constitution--Is the framers' Constitution no longer the work of genius that generations of Americans once thought it was? Has it been buried by the Court?
Brutus, in the Federalist, warned of the potential for the Court to usurp the powers of the Congress
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