How should courts interpret the Bill of Rights?

Article Abstract:

Constitutional rights, as interests protected from political change, are really limitations on self-government. Giving power to the federal courts to determine constitutional rights violates principles of self-government and federalism, according to which most decisions should be made at the state level. Reasons given for limiting self-government are that the people cannot govern themselves, meaning they should be governed by their superiors, or that it is necessary to correct defects in the democratic process. The Bill of Rights should be interpreted in good faith according to its intended meaning.

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Originalism and the Bill of Rights

Article Abstract:

Originalism encounters a number of problems when applied to the Bill of Rights. When the Bill of Rights was enacted, one concern was that future generations would think that only the rights enumerated there are protected. This makes it difficult for an originalist to argue for recognition of only those rights explicitly mentioned in the Bill of Rights. Another problem is that when the Bill of Rights was adopted, the federal government was expected to have only limited powers. Thus, interpretations that seek to restrict federal powers can be seen as consistent with originalism.

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Interpreting the Bill of Rights: a dichotomy of jurisprudential approaches

Article Abstract:

Jurisprudence is divided over whether judges should adhere to the original meaning of the Constitution or whether interpretations should change in response to the times. Supreme Court nominee Robert Bork exemplifies the originalist position, whereas Justice William Brennan advocates the latter approach. Over the last 30 years, the federal courts have been following Brennan's approach.

Beliefs, opinions and attitudes, Jurisprudence

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