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Living Constitutional Theory Vs Minimalism

1938 Words8 Pages

The purpose of this paper is to demonstrate that minimalism is inferior over fundamentalism and living constitutional theory. I will also explain in depth how and why minimalism is different than fundamentalism and living constitutional theory. Moreover, we will explore how each theory issue judgments in various social debates.
In Sunstein’s book Radicals in Robes: Why extreme right-wing courts are wrong for America (In Radicals in Robes, Sunstein, provides definitions of the predominant theories of constitutional interpretation and applies the theories discussed to current issues the U.S Supreme court faces.) Sunstein, spends a great deal of time explaining why fundamentalism is wrong for America and justifies why minimalism is a better …show more content…

First thing we must understand is the both fundamentalism and the living constitutional theory are both very extreme on the spectrum of all the legal theories. But that doesn’t mean minimalism is more centric than fundamentalism or the living constitutional theory. We can find minimalists judges who are “liberal minimalist”, like Justice Ruth Bader Ginsburg. And judges such as Justice Sandra Day O’Connor, who is considered as a “conservative minimalists.” The point I’m trying to make here is that when you think of minimalism reframe from think about it in an absolute terms like one would in case of fundamentalism and living constitutional theory. Think of minimalism is relative terms; relative to the case being argued and the statues being challenged. The second distinguish feature of minimalism is that its not a theory which aims to interpret Constitution or provide any guidelines on how the constitution should be interpreted like fundamentalism and the living constitution theory claims to do. Rather, it aims to provide an insight on the process of how a judges make a decision on the cases presented before. Its provides an insight the tools and the techniques a judge uses to get to their …show more content…

Fundamentalists have established a position to oppose all measure of gun controls stating that they are unconstitutional. If the fundamentalists could, they would over turn all the current gun control laws. However, if we examine the text of the second amendment, much like fundamentalists would. Nowhere in the text it creates an individual right to bear arms. If we continue to examine the text further; it only bans Congress from banning a militia. Not from regulating guns. In fact, in 1939, in United States v. Miller, U.S Supreme court held that Congress could ban interstate transportation of sawed-off shot gun. If this precedent is respected by the U.S Supreme court, then almost all gun control laws are legitimate. But regardless of all the fundamentalist still believe that gun controls laws are

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