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If that is true, then the document must be interpreted from today’s perspective - Judicial Activism. However, using only that approach would be saying that the work of the original framers was mute. This document is over two hundred years old and still very relevant to today’s society. In my opinion, the court needs to find a fine line between activism and restraint or intentionalism as Justice Bork refers to it. Even the Constitution, the result of many debates and compromises, was constructed with aspects that were very clear and those that were very ambiguous. Brennan said that the "genius of the Constitution rests not in any static meaning it might have had in a world dead and gone, but in the adaptability of its great principles to cope with current problems and current needs". In Korematsu v. U.S., the court held that the relocation of Japanese Americans was constitutional. At the time, the court said that the security interests of the nation warranted the actions of the Military Commander. Justice Murphy disagreed with the majority in Korematsu. He said that the "exclusion" of the Japanese Americans "on a plea of military necessity in the absence of martial law ought not be approved. Such exclusion goes over the brink of constitutional power…". That is how that case is perceived today. A majority decided what was best for society at the time. In Barron v. Baltimore, Chief Justice Marshall said that the first ten amendments to the Constitution did not apply to the states. Marshall said that Barron had no legal recourse under the provisions of the 5th Amendment because "the Bill of Rights did not apply to the states and that was that". This remained until the "Civil War Amendments" were passed in 1865 and 1868. It was Justice Brennan’s opinion that it was then that the Constitution could be "interpreted to require application of the first eight amendments to the states." Barron v. Baltimore was also an excellent example of judicial restraint or original intent. Marshall interpreted the language of the 5th Amendment exactly as the framers had intended it - the Bill of Rights did not apply to the states. Attorney General Edwin Meese III, believed "original intent" to be the best method for interpretation of the Constitution. He supported that belief with the following statement made by Justice Story: In construing the Constitution of the United States, we are in the first instance to consider, what are its nature and objects, its scope and design, as apparent from the structure of the instrument, viewed as a whole and also viewed in its component parts. Where its words are plain, clear and determinate, they require no interpretation. …Where the words admit of two senses, each of which conformable to general usage, that sense is to be adopted, which without departing from the literal import of the words, best harmonizes with the nature and objects, the scope and design of the instrument. The concept of original intent or judicial restraint was exhibited by Marshall in other cases. In Marbury, Marshall’s opinion warned that the Constitution limited not only judicial power, but also executive and legislative. And in McCulloch, Marshall reminded "judges never to forget it is a constitution they are expounding." Marshall, along with Meese, believed the Constitution was "intended to endure for ages to come, and, consequently, to be adapted to the various crisis of human affairs." He did not, however, feel that it was a "changeable thing". Marshall’s interpretation was not that the Constitution should be adopted to the "various crisis", but rather, the powers granted to the legislative branch were adaptable to deal with current issues. Simply, the courts role should be one of review, not enactment. The court should be free to pursue a jurisprudence of activism and restraint. In Plessy v. Ferguson, the court ruled that separate but equal was constitutional. They reached that conclusion even though the 14th Amendment required that all persons be treated equally. Clearly they added their own interpretation to that amendment based on the social environment in 1896. Fifty eight years later, the court, in Brown v. Board of Education, struck down the earlier decision allowing "separate but equal" (Plessy). This time the court interpreted the 5th and 14th Amendments exactly as the framers intended. That all persons are equal and that rights can not be taken away without due process, the words were very clear and concise. In both cases, the courts interpretation included a social perspective as well as the words of the framers. If the Justices would be limited to a jurisprudence of strict restraint, referring back to the quote from Justice Story, if the "words are plain, clear, and determinate, they require no interpretation", the court would have been required to decide Plessy differently. By requiring the court to decide one way verses another, the role of the court is subverted. The court must be free to include relevant current issues when deciding cases, they must read the Constitution as "Twentieth Century Americans" (Justice W. Brennan, Jr.) During our nations early history, economic rights were thought to be sacred. As society changed, that focus shifted to personal or civil rights. In Justice Brennan’s speech, he quoted the opinion from Weems v. U.S. [217 U.S. 349]: Time works change, brings into existence new conditions and purposes. Therefore, a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are, to use the words of Chief Justice Marshall, ‘designed to approach immortality as nearly as human institutions can approach it.’ The future is their care and provision for events of good and bad tendencies of which no prophesy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be. If the Constitution was meant to be a document with supreme finality, the original framers would not have included provisions for change. If this blueprint of our free government is expected to survive the ultimate test, the test of time, it must be open to interpretation. And part of that interpretative process must include events relevant to current times as well as the historical events that led to the formation of the Constitution. In my opinion, strict adherence to one method of interpretation leads to closed minded opinions. Like any decision, many factors must be considered before ultimately deciding the outcome. Similarly, the court must look at the intent of the authors, the past history that led up to the event, and also the best interests of society as a whole. Bibliography: Word Count: 1167
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