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Judicial Activism: Does the norm itself changes through the interpretation or does it stays the same?
Again with this thema: I beleive that there is no change in the norm itself, since it stays the same, the text stays the same. The active interpretation is what mutates throught time because it changes the meaning, but we cannot say that the norm itself mutates. Do we?
I believe that what changes are either the judges or the social values. But the norm is always the same sentence.
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| By
Yow Joo is back (CAT) |
Posted on
09/25/07 Total Answers
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| Answers- |
| When referring to law, the norm is generally the societal norm, and that, of course, does change through time. That is why judicial review (Not activism, as there is virtually none of that actually happening) is an important part of our legal system. |
| Answer by :
stiggo629 On Date
2007-09-25 06:17:58 |
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| First, I'm presuming that you're talking about constitutional interpretation (which in some ways is vastly different from either statutory interpretation or evolution of the "common law", where much of the "judicial activism" charges come from.)
Certainly the words of the constitution do not change (unless amended). They are fixed in time. Your use of the term "norm" is difficult, though, and targets exactly the problem. What is that "norm"? Is it exactly what the Framers believed the words to be, or is it the _concept_ or _idea_ that the Framers understood that they were granting the people. For example, the constitution proscribes "cruel and unusual punishment." Of course, capital punishment of all sorts (excluding the most extreme forms of torture) was accepted by the Framers -- in fact, if was often the default punishment for any felony (like rape, burglary, arson...) Did the framers understand that capital punishment would always be permissible under the Consitution, or did they understand that, by using the words "cruel and unusual" that as the country, society, technology, and philosophy (a big deal there in the late 18th century) changed, that the application of what was "cruel" or "unusual" may also change?
Let's take it the other way -- the Constitution prevents "excessive fines." Would the Framers have objected to a $1,000,000 fine (in 1790 dollars) as excessive? Of course! That amount of money was essentially unfathomable. But would that be excessive for an enron exec who stole billions? Not at all.
Certainly judges (and judicial philosophies) change, and so do "social values" (which may affect some provisions of the constitution, undoubtedly). But the concepts ("norms") underlying the constitution do not change... that is, if you believe the "liberal" members of the Supreme Court.
For a great discussion of this issue, check out Justice Scalia's book "A Matter of Interpretation" -- it's a collection of essays of people from the left AND right about how statutes and the Constitution are interpreted. |
| Answer by :
Perdendosi On Date
2007-09-25 06:20:10 |
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