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Jurisprudence Or Jurispru"Don'Ts"?

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Jason C. Dunderdale

U.S. Politics

Dr. Fliter

14 April 2006

Jurisprudence or Jurispru"don'ts"?

The question of whether justices of the Supreme Court should abide by the original intention of the Constitution is a complex one. In the assigned readings for this paper, His Honor Edwin Meece III and His Honor William Brennan Jr. each express their opinions on this subject. Both pay special attention to the nature of express and implied provisions of the Constitution as opposed to the provisions themselves. The balance between these two segments of Constitutional Law creates a divide in the ideologies of both these distinguished men. This conundrum begs the self-perpetuating question of what was relevant in the time of the framers of the Constitution, what of that is relevant today, and what is not? What is more, how can the values of our foremost basis of Law, Order, Liberty, and Freedom remain relevant in the future?

Meece brings to bear the belief that what is most important in legal decision-making is the original intent of the framers, "Jurisprudence of Original Intention" (MSS, pg. 318) as he put it. He points out early that the framers' time was one in which documentation and publication of political ideas was both commonplace and popular. In addition to that, Meece also explains that the official minutes of the Constitutional Convention are public record. This serves to support his argument that the intentions of the framers were and are today readily available. He believes that when one considers these facts, any attempt to futilize the clarity of the framers' intent is futile itself. Once Meece makes these particulars clear, he rationalizes his ideology of original intention. Meece quotes from Justice Marshall's opinion on Marbury v. Madison [1803], "[I]t is apparent, that the framers of the Constitution contemplated that instrument as a rule for the government of the courts as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it?" (MSS, pg. 319). Meece puts his faith in those who drafted the Constitution to have done so with the best interest of the nation in mind and that they made the document flexible enough to withstand the rigors of time and turmoil. He argues that where the Constitution needs to be specific it is; for example the requirements for the Office of the President. Yet, the Constitution is also one that expounds not on the solutions but how the government is to arrive at those solutions. For Meece there is no other way to interpret the Constitution, but to follow it to the letter and consider what those who wrote it for us had the right ideas.

Justice Brennan takes a different stance. He believes that because the Constitution is a living document and must remain relevant that its interpretation is subject to the will of those who do the interpreting. Brennan argues that while sufficient documentation exists to confirm the opinions of those who drafted or influenced the drafting of the Constitution, all that documentation does is illustrate that no one got everything they wanted. Brennan asserts that there is no way the best interest of the nation in the late Eighteenth Century is the same as that of the nation at the turn of the Twenty First Century. He urges his audience to consider the will of the people, which is diminished by the expansive force of majoritarian democracy. Brennan explains that if the government uses archaic ideology to govern on the behalf of a public with which it is already out of touch than its power only increases and so too does the gap between public and polity. Instead, he sees the need for a progressive interpretation that values the interest

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