Term Paper: Living Constitutionalism as the Leader

Pages: 11 (3355 words)  ·  Bibliography Sources: 10  ·  Level: College Senior  ·  Topic: Business - Law  ·  Buy This Paper

SAMPLE EXCERPT:

[. . .] This exceptionalism myth is entrenched in the hackneyed national ethos dubbed 'the American dream,' which highlights a set of ideals such as equal opportunities for success, prosperity, and upward social mobility

During the campaign trail ahead of the November 2012 presidential poll, President Barack Obama affirmed that while he believed in America as 'the indispensable nation' and the 'leader of the free world,' he did not think that it was any greater than, say, Vietnamese exceptionalism, British exceptionalism or any other country's brand of nationalistic and patriotic chest-thumping. Obama reiterated that greatness lies in humility and the desire to acknowledge other countries' integrity; as a leader of the free world, America should be humble and unpretentious

DISCUSSION

As stipulated in the American constitutional dispensation, the letter of the law is unequivocal. That notwithstanding, many agree that every society is dynamic in nature. As such, as society keeps changing, there is a growing need for the constitution to be equally as dynamic in view of various considerations. Implementing and enforcing the letter of the law as stated in constitutional clauses often has its shortcomings. For instance, the United States is a nation that embraces democracy as an integral part of its political economy. Democracy connotes the 'will of the majority.' However, in view of the concern that the will of the majority would bring about tyranny of numbers, the American electoral system incorporates the Electoral College of delegates in bid to achieve balance. The Electoral College, though criticized by many as draconian, mitigates the adversity of mediocrity of democracy. In the American criminal jurisdiction, they have juries comprising upright citizens taking into account ethnic, racial and gender considerations. The role of the jury is to humanize the law since the letter of the law would be unrealistic if implemented to the core

The concept 'Living Constitutionalism' revolves around humanizing the law. By adding the element of humanity in the law, the constitution gains a dynamic element. This idea relates to the view of the society as contemporaneous, which introduces the need for rational interpretation of key provisions in the constitutional dispensation. The pragmatic view of living constitutionalism seeks to avoid the enforcement of repulsive clauses, which is why constant amendment of the constitution becomes vital. Experts claim that while drafting the document, the constitutional framers used 'loose terms' to leave room for future changes in view of the fact that the society is dynamic in nature for the law to be implemented to the letter.

Even while America embraces the spirit of living constitutionalism, a section of commentators has denounced it. Opponents to living constitutionalism claim that it is a sham and that society ought to refrain from trying to change the letter of the law. Some of the most vocal commentators reckon that by branding it a living constitution, constitutional interpreters willfully manipulate the course of justice. They believe that living constitutionalism is a subtle and crafty means of encouraging legislative and judicial activism with the aim of rewriting the law as originally envisioned by the constitutional framers years ago. Gilbert Madison, a professor at the University of Nairobi argues that the constitution is the most supreme source of law in any given country and as such, people ought to respect what it entails. Madison believes that any form of legislative or judicial activism undermines the spirit of constitutional supremacy. Echoing the same views, conservative republicans believe that the best constitutional interpreters ought to do is to discern what the framers intended as opposed to rewriting the letter of the law

In response to some of the concerns raised by constitutional hardliners, popular ex-president, Ronald Reagan once explained that a living constitution represents the view of a dynamic framework that is consistent with the growing needs of the American society as they constantly change. Proponents of living constitutionalism draw their argument from the fact that the constitution itself is silent as it appertains to constitutional interpretation. While the framers of the U.S. Constitution, most of who were prominent legal theorists and lawyers, presented the document, they knew all too well that providing a strict methodology of interpretation would create a rigid dispensation that would disallow reasonable interpretation in the future. Had they envisioned a rigid constitutional dispensation, they would have indicated as much in the document itself; by choosing to leave space for reasonable interpretation, constitutional framers sought to mitigate that problem

Constitutional expert, Annabel Hathaway of the University of Stanford explains that in an attempt to understand the concept 'living constitutionalism', it is prudent for people to view the constitution as the foundation for legal concepts that govern the society instead of viewing it merely as the source of law. As a living constitution therefore, the American dispensation provides a set of laws that ought to guide governance of the society within the framework of sound legal institutions. While seconding this debate, Olivia Wendell Holmes Jr. wrote that the provisions in the American constitution are organic, living provisions rather than mathematical formulas.

There issue of living constitutionalism has sparked intense debate amid divergent ideologies held by various parties. It has become, to that extent, a partisan political issue and a divisive one at that. An overwhelming number of political philosophers and legal theorists however believe that there is a growing need to accommodate the fact that the society is dynamic and as much as it changes constantly, so should the law.

Living Constitutionalism amid Contemporary Contentious Issues

As mentioned earlier, the spirit behind living constitutionalism is pragmatism. Living constitutionalism allows for deliberations on certain issues amid changing perspectives. For instance, the Second Amendment states that every citizen has a right to bear arms for purposes of their protection and self-defense. Apart from the legislative mandate to bear arms, the judiciary also endorsed citizens' entitlement to bear arms. In 2008, for instance, the U.S. Supreme Court held that Amendment II safeguards an individual's right to acquire, possess and carry firearms. The Supreme Court further issued two landmark decisions in 2008 and 2010 thereby officially establishing this interpretation. In the 2008 case: District of Columbia v. Heller, 554 U.S. 570

, the Supreme Court held that Amendment II protects an individual's right to bear arms, which are to be used for traditionally lawful purposes such as defense of property or self-defense.

Following the unfortunate gun incident where a sociopath identified as Adam Lanza, 20, opened fire claiming 26 lives at Sandy Hook Elementary School in Newtown, Connecticut, there emerged fresh calls to re-evaluate the Second Amendment. The unprecedented fatalities, as per the death toll released by Amnesty International hours later, included 20 children aged below 10 years and six adults. The unfortunate event dated December 14, 2012 sparked national outcry that rekindled the gun debate. In bid to mitigate gun violence, it would be plausible to enforce stricter firearm laws, policies, and overall restrictions while amending the Second Amendment. Experts believe that dispensing with civilian right to own arms would not be beneficial to campaign against gun violence; proper firearm regulation is what would actually reduce crime.

The debate on the rights of citizens to bear arms and the need for gun control through federal or state interference remains a partisan political issue in the United States. Conservatives view gun possession as a civil rights issue; the republican ideology is that all individuals have a constitutional right to bear arms for their own protection and no authority should deprive civilians of their civil rights. The liberals, on the other hand, believe that even though citizens are entitled to bear arms for their own protection, state and federal law enforcement authorities should closely monitor the flow of such arms for national security purposes.

The New York Times reveals that Senate Democratic leaders are expecting a gun bill to move to the floor of the Senate soon. Majority Leader, Harry Reid of Nevada, told Washington Monday that this bill, which notably excludes a ban on military-style, semiautomatic weapons, includes proposals backed by the Office of the President. This move is an indicator of how Senate Democrats are planning to move forward towards major gun legislation in coming weeks.

Conclusion

The Constitution of the United States came into force on September 17, 1787 following its adoption by the Constitutional Convention in Philadelphia, Pennsylvania. As stipulated in the American constitutional dispensation, the letter of the law is unequivocal. That notwithstanding, many agree that every society is dynamic in nature. As such, as society keeps changing, there is a growing need for the constitution to be equally as dynamic in view of various considerations. Implementing and enforcing the letter of the law as stated in constitutional clauses often has its shortcomings. The concept 'Living Constitutionalism' revolves around humanizing the law. By adding the element of humanity in the law, the constitution gains a dynamic element. This idea relates to the view of the society as contemporaneous, which introduces the need for rational interpretation of key provisions in the constitutional dispensation. Even as… [END OF PREVIEW]

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Living Constitutionalism as the Leader.  (2013, April 4).  Retrieved April 25, 2019, from https://www.essaytown.com/subjects/paper/living-constitutionalism-leader/4966239

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