LAW

[Name]

[Professor]

[Subject]

23 April 2008

Comparative Constitutional Interpretation and Analysis

National Stare Decisis v . Evolving Community and International Standards

A catena of cases on issues of how to read the constitution and its clauses in to suit the times , in recent years , established a nebulous precedent for a progressive and liberal judicial interpretation /review of the laws . The trend moves more and more towards the awareness of or the reliance on the prevailing modern national and international consensus with respect to moral , social and political issues , or

the evolving standards of decency that mark the progress of a maturing society

More often than not , after a series of doctrinal statements being overturned , the Supreme Court has been consistent in reexamining traditional ruling to come up with a recalibrated adaptive response to an ever-changing society . The main idea is to forecast the extant universal moral climate and apply it with little to no regard for jurisprudence . However , since the very concept of stare decisis compels the judges to stick to a previous judgment , which partakes the nature of an inert and hardly movable doctrine , or at least supposedly , the danger lies in the frequent and disruptive reassessments [of our Eighth Amendment] precedents

There is the risk of uttering malleable doctrines that gains no permanent persuasive weight insofar as the plurality of opinions inevitably changes through time , across states , cultures and societies There is no longer the adherence to steadfast rules . Court decisions become open to the subjective moral judgments of the judges , who , in the first place , should be impartial and calculating as far as the constitution would permit . Thus , the myth of the traditional judge surfaces and the constitutional provisions , to which the decisions are ultimately based on , become no more than arbitrary political constructs variable to a particular country or an era

Yet , precisely because the constitutional provisions are not absolute and their interpretations not rigid , there is the constant need to reevaluate the tenets according to present contexts . By no stretch of imagination is it understood that since the constitutional provisions have been drafted and written ages ago , at a time when the conditions were different , the constitutionalists may have not most likely contemplated or forecasted the myriad exquisite changes in society . As such , the provisions were worded to accommodate a vast expanse of interpretation that would remain applicable and stand the test of time viz . [truly] like other expansive language in the Constitution [clauses] must be interpreted according to its text , by considering history , tradition , and precedent , and with due regard for its purpose and function in the constitutional design

The American constitution may be couched in simple terms , but for all its simplicity , its meaning is broad and universal , based on normative principles constant over time - past , present and the future . On one hand , the judges ' role is to ensure that the spirit and tenor of the constitution are not defeated . On the other hand , the judges must simultaneously synchronize the text to be...