How to best project human rights within society?
Constitutions…
- They are usually designed to outline the key structures in society to maintain justice
- A key feature is also to outline the key rights which the government must respect and guarantee
- This is not the case in the UK as you know we do not have a concrete codified list of rights
What do you want this constitution to do?
- You want it to list the main rights which can be guaranteed despite the political changes taking place
- Therefore you want it to be fairly rigid and hard to amend
- At the same time you want it to respond to modern issue and therefore to have an element of flexibility
Issue?
- How do you achieve both?
Problems with the informal method;
How should judges determine the meaning of rights?
Two approaches
- Originalism
Vs
- Living constitutionalism
Originalism
All statements in the constitution must be interpreted based on the original understanding of the authors or the
people at the time it was ratified
Originalists seek one of two alternative sources of meaning
- The original theory, which holds that interpretation of a written constitution is consistent with what was
meant by those who drafted and ratified it
- The original meaning theory, which is closely related to textualism, is the view that interpretation of a
written constitution or law should be based on what reasonable persons living at the time of its adoption
would have understood the ordinary meaning of the text to be
Living Constitutionalism
- A living constitution is said to develop alongside the need of a society, providing more malleable tools
for governments. The idea is associated with views that contemporaneous society should be taken into
account when interpreting key constitutional phrases. For example; openly used for the 8th amendment
(prohibition of ill treatment)
- This was seen in the 1958 supreme court case of trop v Dulles
Strengths and weaknesses with each approach
Originalism
- strengths
Ble to explain where the constitution gets its authority from ’we the people’ who drafted the initial constitution
Captures the purpose of a constitution - offering constant protection to rights which are outside of change
- problems
Dead - hand of the past - why binding on current generation
No consistent methodology to determine the original intent/ purpose/ meaning
Unable to respond to change
Constitutions…
- They are usually designed to outline the key structures in society to maintain justice
- A key feature is also to outline the key rights which the government must respect and guarantee
- This is not the case in the UK as you know we do not have a concrete codified list of rights
What do you want this constitution to do?
- You want it to list the main rights which can be guaranteed despite the political changes taking place
- Therefore you want it to be fairly rigid and hard to amend
- At the same time you want it to respond to modern issue and therefore to have an element of flexibility
Issue?
- How do you achieve both?
Problems with the informal method;
How should judges determine the meaning of rights?
Two approaches
- Originalism
Vs
- Living constitutionalism
Originalism
All statements in the constitution must be interpreted based on the original understanding of the authors or the
people at the time it was ratified
Originalists seek one of two alternative sources of meaning
- The original theory, which holds that interpretation of a written constitution is consistent with what was
meant by those who drafted and ratified it
- The original meaning theory, which is closely related to textualism, is the view that interpretation of a
written constitution or law should be based on what reasonable persons living at the time of its adoption
would have understood the ordinary meaning of the text to be
Living Constitutionalism
- A living constitution is said to develop alongside the need of a society, providing more malleable tools
for governments. The idea is associated with views that contemporaneous society should be taken into
account when interpreting key constitutional phrases. For example; openly used for the 8th amendment
(prohibition of ill treatment)
- This was seen in the 1958 supreme court case of trop v Dulles
Strengths and weaknesses with each approach
Originalism
- strengths
Ble to explain where the constitution gets its authority from ’we the people’ who drafted the initial constitution
Captures the purpose of a constitution - offering constant protection to rights which are outside of change
- problems
Dead - hand of the past - why binding on current generation
No consistent methodology to determine the original intent/ purpose/ meaning
Unable to respond to change
