The Political Seduction of the Law

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Table of Contents

Introduction
Background
Body
Conclusion
Works Cited

The purpose of this essay is to provide answers to different methods of interpreting the law, as well as identify loopholes that exist in its interpretation. The deeper meaning involves checking on the integrity of the interpretation mechanism and the opposite sides that support and counter the constitutional interpretation. The major issue is seeking to know on who is the best person to give the interpretation of the law. This is the school of thought that provides the basis of determining judgment and establishing the role of the judge in the law decision making process. The reader needs to realize the side of the interpretation of the constitution.

This is new information that provides us with the insight in the context not only of the text but as well as the alternative and the natural law perspective that the constitution should be based on. Few people have considered looking into this new line of discussion and, therefore, better research is needed to be done to establish the different modes of reading the law and the role of legislature in the law making process.

This is a new line of thought that is very interesting to learn about new things through finding the facts by doing research. I was reading some article about the natural law and the constitution, and I wanted to know more about the relationship between them; the natural law and the constitution. Constitution has become a tool that is used by politicians to change policies that prevent them to promote on their way to the top in the political system. Therefore, there is a need for a proper interpretation in a democratic society. Natural law and the constitution need to be well-thought of trying to find the basis of constitutional implementation and interpretation.

Introduction

Constitutional politics is one of the major issues that affect the local context as well as the global scenario. This is because different nations are governed by different constitutions, but they all submit to the international law which they all respect and follow. Constitutional interpretation is therefore a key element that will guide the social, emotional and the political forces of all nations and everything that affect the world (Krason 26). The biggest controversy is on who has the authority to provide direction in the interpretation of the constitution. What is the relative weight that ought to be attached to the relevant sources, such as the governing systems? And finally, what is their mandate in interpreting the constitution? This paper seeks to address these issues at large and in line with the current conflict of interest that is associated with this discussion.

Background

There are five key components that can be used to interpret constitution. They include the following; first and foremost, the text and structure of the constitution should be mentioned. Secondly, there are the intentions of the people who drafted the constitution in those lines of expression, the people who voted in favor of the constitution or proposition of the specific ratification of the part of the constitution. Thirdly, the precedents are prior to the writing which is the judicial system in most cases. Fourth, there are political, economic and social consequences of the alternative interpretation of the constitution, and, finally, the natural law. Critically analyzing these criteria for interpretation raises arguments on the applicability of interpretation on the constitution (Hamburger 914).

The first point three can be supported but the last notes that all the weight should be applied because, for instance, basing on the alternative interpretation does not add many weight to the law. This will still apply even if all the other reasons are balanced as well. The natural law is frequently suggested to be a higher law which is the main law; Gods law. Interpretation of the constitution based on the natural law has been a great argument for supporters and opponents who have been recognized as either originalists for the supporters and the non-originalists for the non supporters. Originalist who believes in the primary weight of the text and the structure of the constitution has therefore been referred to as the textualists (Krason 27). Those who support the intentions are intentionalists, and non-originalists who do not support the alternative interpretation for the public good as a way to give the weight to the judicial precedence are recognized as pragmatists. The natural law theorists are staunch believers in a higher coordination of the moral law for the positive law (Hamburger 915).

Body

The originalists hold that if the constitution is the law, then its meaning is presumably like that of any other law, and that is the meaning the makers were understood to have intended. It is also presumed that the meaning is as binding upon judges as it is upon the legislatures and the executives (Bork 65). The reason for this is that judges can never come up with a new constitution that will work to destroy the old version of the constitution because doing so will be tantamount to be violation of the rights of the legislature and the people and the philosophy of the original understood meaning. It is because of this reasons that the originalists strongly believe that originalism will help reduce the likely hood of the unelected judges seizing power from the unelected representatives (Oh 41), they also see themselves as the best preservatives of the authority of the court. They claim that the non-originalists will basically be able to give too much room for the judges to own their subjective and elitists moral values. The originalists believe in being neutral, objective and framers of the constitutional clauses. The people in an originalist perspective also need others to be allowed to make decision based on the constitution so that serious public debates and the limitations can be corrected. It is seen as a binding contract as they highly respect the decision of the constitution. The originalist in most cases force the repeal of the constitution by the legislatures so that they can give room for corrections and amendments of their own bad laws (Bork 66).

On the contrary, the non-originalists neither hold any specific intentions on the constitution nor do they want their intentions to dictate the interpretation of the constitution. They also believe that judges need to feel some constitutional gaps so that all the errors that a government might use to oppress the people would be eliminated. They ascertain that the intentions of the framers are varied, transient and may never be determined (Oh 45). The texts are at times ambiguous in such situations; the results are needed to support the public interest rather than gambling with the decision.

On this line of thinking, the non-originalists support the role of the judges. They as well believe in the evolution of the constitution to make a better understanding of the matters in the constitution. They also can not be able to prevent or slow down the inhumane program. This is especially in relation to the ideology that was held with the Nazi government (Krason 28). This has extended to the level of the constitution being seen as undemocratic, oppressive and being regarded as the sectarian law (George 325). Incidences, such as the restriction of the use of contraceptives, indicate major dents in the constitution. Is this the nature of the written constitution? What should stand undisputed in the interpretation of the law is the perceived literal meaning which should not be applied in the violation of every constitutional clause. It is very reassuring to contemplate that the court stand in between us and the legislative dictates of the wrong constitution which will remain foreseeable and expressly forbidden by framers on the new laws (Bork 68)

Conclusion

The law needs to be read from the point of view of both the originalists and the non-originalists so as to comprehensively interpret the constitution. The interpretation of the law is the main contentious issue of the law. Only the appropriate sources should be allowed to give the interpretation of the law.

Works Cited

Bork, Robert. The Tempting of America: The Political Seduction of the Law. New York: Free Press, 2007. Print.

George, Robert P. The Autonomy of Law: Essays on Legal Positivism, ed. Oxford: Clarendon Press, 2005. Print.

Hamburger, Philip. Natural Rights, Natural Law, and American Constitutions, Yale Law Journal 102. 4(1993): 907-960. Print.

Krason, Stephen. Constitutional Interpretation, Unenumerated Rights, and the Natural Law. Catholic Social Science Review (2006): 20-31. Print.

Oh, Daniel. Natural Law ethics: its historical development and application to the formation of character development in warriors. New York: Greenwood Press, 2006. Print.

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The Political Seduction of the Law

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