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Originalism Vs Living Constitution Theory

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The judiciary has become more and more involved in policy making in recent years, and many citizens and politicians ask how far should judges go interpreting a law. Should they really have the power to impose laws that go against the representatives, that have been elected by the people? Those are the questions that get asked frequently and the constitution is silent on the subject. The two main theories preval are the originalism and living constitution theories. To sum it up, the originalism theory states ¨the constitution should be interpreted in a way that it would have been interpreted when it was written¨, whereas living constitution theory states that ¨the framers made the constitution flexible for interpretation¨. Both theories have a solid foundation for their belief, with one stating that laws the judiciary makes, drifts too far away from what the framers wanted, and the other theory states that as times change so should the laws. …show more content…

Similar to the originalism theory, judicial restraint holds that ¨judges should defer to precedent and decisions made by legislature´s¨(Patterson 470). Whereas judicial activism(similar to living constitution theory) holds that ¨judges should actively interpret the Constitution, statutes, and precedents in light of fundamental principles and should intervene when elected representatives fail to act in accord with all these principles”(Patterson 470). Advocates of judicial activism believe in the importance of majority rule but do not believe the courts should blindly uphold decisions of representatives. A recent example of judicial activism would be in a court's 2010 ruling on campaign

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