Judicial Interpretation: Originalism vs. Living Constitution

• Judicial Interpretation involves different theories on how to interpret the US Constitution.

Originalism

• Theory of constitutional interpretation that seeks to understand the Constitution as it would have been understood when it was written.
• Decisions made by the Supreme Court should align with the literal definitions and language used in the document in 1789.
• Originalists believe the Constitution should have a fixed meaning.

Living Constitutionalism

• Theory that views the US Constitution as having a dynamic meaning that evolves and adapts to changing circumstances, even without formal amendments.
• Argues that the Constitution is silent on the matter of constitutional interpretation.
• Living constitutionalists suggest that if the framers wanted future generations to interpret the Constitution in a specific way, they would have stated it explicitly.
• A criticism is that it can lead to the law being twisted to fit desired outcomes, potentially reading rights into the Constitution.
• Another criticism is that the original designers provided a means of amending it, they never intended for their original words to change the meaning, noting how difficult it is to amend the constitution.

Jefferson’s Criticism

• Jefferson agreed that laws conflicting with the Constitution should be invalidated.
• He believed each government department should have a role in judicial review.
• Jefferson argued that the Supreme Court should not have a monopoly on interpreting the Constitution.
• Jefferson stated that judges are fallible and susceptible to partisan passions.
• Jefferson proposed judges be have reappointment every 6 years and can be appointed by president.

Federalist 78

• Hamilton argued the courts are the least dangerous branch, lacking the power of the purse (legislative) and the sword (executive).
• Hamilton stated that the judiciary is not superior to either congress or the people.
• Courts act as an intermediary to protect peoples’ rights from Congress.
• Life tenure ensures judicial independence, guarding against improper influence from the Executive or Legislature.
• A limited pool of qualified candidates necessitates life tenure to attract and retain talent.
• Life tenure checks Congress and safeguards judicial independence.

Bureaucracy

• A bureaucracy is a hierarchical organization with specialized offices and employees assigned responsibilities based on merit, knowledge, and experience.
• The federal bureaucracy includes all executive agencies, personnel, and federal government employees, tasked with administering and enforcing congressional laws.

Federal Bureaucracy Structure

• The structure consists of 15 major cabinet departments organized hierarchically.
• There are 12 independent regulatory commissions.
• There are dozens of major agencies, boards, and institutes.
• Bureaucrats are permanent government employees, often pursuing long-term public service careers.
• Systems prior to modern bureaucratic systems involved Patronage where political jobs were awarded based on political ties rather than qualifications.
• The federal bureaucracy's original tasks included delivering mail, collecting customs duties, and recording land deeds and marriage certificates.
• The Pendleton Act of 1883 replaced patronage with a merit-based system for federal government jobs.

Federal Bureaucracy Growth

• The federal bureaucracy grew from 100,000 workers in 1880 to 3 million in the late 1960s.
• The first major surge happened during the Great Depression in the 1930s with the New Deal, leading to the creation of the Social Security Administration (1935), US Securities and Exchange Commission (1934), and National Labor Relations Board (1935).
• The second surge occurred in the 1960s with the Great Society programs, creating Medicare (1965), Medicaid (1965), Head Start (1965), Department of Housing and Urban Development (1965), and Department of Transportation (1966).

Structure of the Federal Bureaucracy

• The original departments handle foundational governmental tasks like defense, law enforcement, and financial management.
• The Department of Justice includes sub-agencies like the FBI, DEA, and BOP.
• The Department of Defense includes the Army, Navy, and Marines.
• The Department of Treasury collects taxes, manages the national debt, and formulates economic policy.
• The Department of State advises the President on foreign policy, including relations with the UN, WHO, WTO, and USAID.

Clientele Departments

• Serving specific interests in society (agriculture, labor, veterans)
• USDA: Regulates meat, poultry, and egg products and supports farmers through loan programs.
• Department of Commerce aims to strengthen domestic industry, create jobs, ensure fair trade, and stimulate local economies.
• Department of Veteran Affairs provides benefits and services to veterans and their families, including education, health care, and home loans.
• Department of Labor administers and enforces federal laws related to minimum wage, workplace safety, unemployment insurance, and employment discrimination.
• Department of Interior manages public lands, national parks, and wildlife refuges.

Service Departments

• Departments offer broad social services that benefit the general population such as health, education, and housing.
• The Department of Health and Human Services oversees programs, funding, and research related to public health, food and drug safety, and health insurance, including the CDC, FDA, NIH, and CMS.
• The Department of Energy manages nuclear weapons, national energy security, and promotes energy efficiency.
• The Department of Homeland Security works to prevent and respond to domestic threats like terrorism, natural disasters, and border security.
• The Department of Housing and Urban Development facilitates affordable housing, manages public housing programs, and enforces fair housing laws.
• The Department of Transportation oversees transportation infrastructure development and sets safety regulations, including vehicle safety standards and the Federal Aviation Administration.

Regulatory Commissions

• Regulatory commissions are headed by bipartisan boards responsible for developing, implementing, and adjudicating policy.
• These commissions include the SEC, Federal Reserve, CPSC, FTC, and FCC.
• Headed by bipartisan boards with long, overlapping terms, insulating them from political influence.
• While the President appoints heads, they cannot be fired at will, ensuring further independence.