Despitemuch remaining confusion between the two models, it is clear thathistory has chosen the non-interpretative model without which many ofthe defining points in our nations history would be unjustified. Theoverwhelming strength of the non-interpretive model is that it hasallowed for many fundamental decisions that have served to protectthe natural rights of the members of this society. If on the other handthe interpretive model is to be accepted, a significant number ofdecisions must be revoked. Briefly, the majority of the due processclause is no longer justified. Fair criminal and civil procedures must bedismantled since they have no specific textual reference in theConstitution. Freedom of speech, religion, and property rights are allcalled in question.
Also affected is the legitimacy of franchise andlegislative apportionment bodies of doctrine. The equal protectionclause of the Constitution when read literally outlines the defense ofsome forms of racial discrimination. However, it does not immediatelyguarantee the right to vote, eligibility for office, or the right to serveon a jury. Additionally, the clause does not suggest that equal-facilitysegregation is not to be allowed.
Finally, the freedom from cruel andunusual punishments as outlined in the eighth amendment loses itsflexibility. In this manner, a prima facie argument against theinterpretive model is evident. Without the ability to move beyond thespecific wording, the Court loses its authority to protect what societyvalues as basic human rights. A fundamental question relevant to thisdebate is whether or not values within our society are time-enduringor changing. When the Supreme Court makes a controversialdecision, does it use the text of the Constitution to legitimize principlesof natural law, social norms and arrangements? Or, is it acting as aninterpreter of slowly changing values and imposing its views on societythrough its decisions? The Constitution is not a stagnant document; itis very much alive and changing with the times.
Critics argue that theamendment process was created to allow change and that the role ofthe Judiciary does not include the power to change stated commandsin addition to that of enforcing them. However, in many cases, theamendment process is inadequate for clarification of issues of humanrights. A great virtue of the non-interpretive model is that the Courthas the power to strike down unconstitutional legislation that allowsfor the Court to preserve the rights of the people. Non-interpretationthen requires the application of understood codes, yet thedecision-making process is far from mechanical. Critics contest thatthe Court should not have the ability to interpret societal values in agiven period of time. However, as has been shown, history has upheldthis tradition.
A number of questions now arise. Is it practically wise toplace the responsibility to define and protect human rights in thehands of Supreme Court Justices? The answer lies in onesinterpretation of history. While it is true that the Court has madedecisions that reflect its own biases and interests, it can be shownthat the Court has also consistently acted to secure the rights ofcitizens and to limit federal and state powers. Following, is thedefinition and enforcement of human rights a judicial task? Theadjudication of the Supreme Court over issues of human rights asopposed to this power residing in other branches of government mustbe answered. While there is no direct statement regarding judicialreview in the Constitution, Marbury v.
Madison is referenced here asthe greatest of all cases justifying this judicial power. Thus arises thepenultimate question of the authority of the Supreme Court. Constitutional adjudication was allowed for implicitly by the FoundingFathers. Only some of the principles of higher law were written downin the original document; however, the distinction between those .