Constitution And Originalism Analysis

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When interpreting the constitution, the doctrine of originalism and the dependence on founder’s intent is typically referred to as the more defensible style of constitutional interpretation, yet with further analysis this becomes invalid. Due to the vagueness of the text, and the ideology of compromise at the core of its creation, originalist style of interpretation becomes far less defensible than that of a living constitution. Even so, there still must be guidelines in place that limit the extent to which the constitution is interpreted:this comes in the form of prudentialism or struclasim. Due to the vagueness of the text in the constitution, and the ability of both prudentialism and structuralism to expand the rights of American citizens, …show more content…
Judge Posner states that “questions about the public good and questions about private rights are inseparable”;(O’Brien, 205) meaning that the public and private sphere intertwine when it comes to the Constitution, and judges must consider how their interpretations affect both sectors. Judges who interpret the constitution through the lense of originalism can not take this into consideration, and must make their decisions solely based off the text which can result in missed opportunities to vest more power in the hands of citizens. Through structuralism, judges are able to be intentional with their interpretations of the key themes in the constitution, and bring about more rights to the general population. In particular, it is because of this living constitution style of interpretation that citizens in the private sphere and all in the public sector can reap the benefits of substantive due process. Substantive due process is defined as a principle allowing courts to protect certain fundamental rights from government interference, even if procedural protections are present or the rights are not specifically mentioned in the constitution(Williams). First used in the unfortunate in the case of Dred Scott v Sanford 1856 substantive due process did not become an institutional mechanism until the case of Lochner v New York 1905(Legal dictionary). Through this case the courts found that New York’s regulation of the hours worked per week, conflicted with each citizen's right to enter contracts guaranteed in the due process clause of the constitution. That said, when looking at the two specific due process clauses in the 14th and 5th amendment, neither clause explicitly mentions the “rights of contract”. Rather, by taking the overarching themes in the constitution, the judges in this case were able to extend
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