For much of its history, the Supreme Court has purported to engage in what is called "interpretive" judicial review. Interpretive review occurs when the Court ...
"ascertains the constitutionality of a given policy choice by reference to one of the value judgments of which the Constitution consists-that is, by reference to a value judgment embodied, though not necessarily explicitly, either in some particular provision of the text of the Constitution or in the overall structure of government ordained by the Constitution."
Justice William Brennan, for example, engaged in interpretive review when he argued in his recent Holmes Lecture that the framers intended the eighth amendment eventually to bar capital punishment. The legitimacy of interpretive review-as one leading advocate of noninterpretive review has acknowledged-is not particularly difficult to justify. However, in recent years more and more commentators have urged the courts to adopt frankly noninterpretive values in deciding constitutional cases. The justification for noninterpretive review is more troublesome. Proponents of noninterpretive review appear to admit cheerfully that judges should adopt values not found in, influenced by,or derived from, the constitutional text or the logic of precedent. Some have argued that the modern judiciary should act simply because it is"the voice and conscience of contemporary society." Judges should recognize correct moral and political values, and find the "right answers"in order to go "beyond the value judgments established by the framers of the written Constitution (extra constitutional policymaking)."Noninterpretivists see the Constitution not so much as a blueprint for allocating and limiting government power but as a way for judges to forge an ideal society-or, at least, a society that they view as ideal.These commentators advocate "a more candidly creative role" for the Court because "the highest mission of the Supreme Court. ..is not to conserve judicial credibility, but in the Constitution's own phrase, 'to form a more perfect Union.""In the continuing debate between interpretivists and noninterpretivists, the noninterpretivists recently have argued that the framers did not intend the judiciary to be bound or illuminated by the intent of the framers or ratifiers of the Constitution. One commentator, for example,is quoted as claiming that James Madison "never" intended that original intention should be the oracular guide in explaining the Constitution. Another remarked bluntly: "[T]he framers, after all, are dead,and in the contemporary world, their views are neither relevant nor morally binding."
Ronald D. Rotunda,
Original Intent, the View of the Framers, and the Role of the Ratifiers,
41 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol41/iss3/3