The Supreme Court judicial review is largely based on two major theories. The Living Document theory states that the constitution is a living thing; therefore it should be flexible and not rigid as the Ten Commandments written on the stone. This theory however conflicts with the Originality Theory which argues that the judges and justices should use the constitution in its original for whenever they make a ruling on any case. This theory argues that if the judges are given the power to interpret the constitution, they are never consistent in their ruling on similar cases.
The Living Document Theory
The Living Document theory argues that since the constitution is a Living Document, it should be flexible. This is hinged on the basic fact that the social and political lives of a people are immensely dynamic. Despite of the fact that the constitution is a changing document, conflicts arise as to whether the judge’s rulings and interpretations of the constitution in the context of the changing world ought to be acceptable.
The system of checks and balances coupled with the separation of powers do not entirely eliminate the conflicts arising between government agencies and the Supreme Court or even the public. Holmes asserted that his role as a justice was to determine as to whether the laws either upheld the constitution or violated it with an aim of avoiding legislation from the bench (Spalding, 2007, p. 145).
The Living Document theory states that the interpretation of the constitution entirely depends on the composition of the Courts of Laws. The former chief justice of the Supreme Court of the USA, Charles Hughes commented that the meaning of the constitution entirely depends on what the Supreme Court asserts.
He argued that by exercising the right of judicial review, the courts could either expand or hamper the powers of the congress. With respect to Hughes’ argument it’s evident that the congress is held hostage by the will of the court system.
The Originality Theory
The Originality Theory seeks to defend the originality of the constitution. This theory argues that the ruling of the citadel of justice should be hinged on the constitution and the spirit of constitutionalism as envisaged by the drafters of the supreme document.
The theory advocates for the existence of a vast industry to analyze the decisions, and seeks principled theories for justifying judicial activism and judicial restrain (Wolfe, 2006, p. 89). This theory argues that the justices at the center of the court are not consistent and intellectually holistic in their dispensation of justice.
The pillars of this theory are the intent and the meaning of the constitutional causes. The theory argues in support of a sanctified and rigid constitution, which is devoid of unnecessary alterations. Additionally, it provides that the meaning of the constitutional clauses must be retained by the judges whenever they administer justice without changing its basic fundamentals.
I would subscribe to The Living Document Theory since it provides room for constitutional amendments. This theory gives the Supreme Court a window of constitutional interpretation the without necessarily sticking to the original meaning of the constitution. This theory is more logical compared to Originality Theory for it acknowledges the fact that the constitution is a Living Document. There are various strengths and weaknesses of the Originality Theory as discussed below;
Strengths of the Originality Theory
The Originality Theory argues that the courts’ rulings should be in line with the constitutional provisions as intended by the constitutional makers. This theory prevents incidences where judges make rulings on the basis of their own personal understanding hence promoting fairness and justice. This theory, however, prevents the Supreme Court from making rulings or legal interpretations that may have devastating impacts on the lives of the citizens.
The Originality Theory fails to take into account the fact that socio-political aspects of a people are extremely dynamic. Consequently, it does not provide a straight avenue for judicial changes to occur thus making it difficult for the constitution to adapt to the changing times. The interpretation of the constitution by the Supreme Court, the congress and the president must evolve over time through a less cumbersome process as well.
The two theories conflict with each other in that whereas the Living Document Theory states that the constitution is a living thing and therefore should be flexible and not rigid, The Originality Theory seeks to defend the originality of the constitution by discouraging alterations. Despite that the Living Document Theory provides for constitutional amendments and gives the judges power to make ruling basing on their personal ideologies, the Originality Theory restricts the ruling of the Supreme Court to the constitution in its original form.
Despite the fact that the Originality Theory fails to address the current changes and reforms taking place in the social and political system in the society today, it calls for administration of justice in an equal and fair way to all citizens. It is also important to note that despite the fact that the Living Document Theory is the most preferable one, the judges and justices may be biased in their delivery of duty as well as service. Both the Originality Theory and Living Document Theory have their strengths as well as weaknesses.
Spalding, M. (2007). The Formation of the Constitution. Washington: Center of American studies.
Wolfe, C. (2006). From Constitutional Interpretation to Judicial Activism. Littlefield: Rowan and Littlefield Press.