2
REFLECTION: CONTEMP ISSUES
Reflecting on Contemporary Issues in Constitutional Order
Admittedly, as I entered this course, I wasn’t sure what to expect. I have a passion for
work and laws that impact marginalized communities that were not even considered humans at
the time the United States Constitution was written. I struggled with concepts like original intent
because as Berger argues, “the intention of the framers should control interpretation because it is
only by examining ‘original intent’ that the interpreter can discover the normative meaning of the
Constitution” (Powell, 1985). By this definition, I’d always interpreted it to imply that if the
Constitutional Framers were not considering a specific people or thing then there was never any
intent for growth or reimagining. As the needs and desires of the American people have shifted
based on changes in society, laws and policies of the past must be revisited in order to move
forward. The Progressive Era saw a rise in non-originalist methodologies becoming widely
accepted by the Supreme Court and American legal culture during the New Deal before the
resurgence of originalism in the 1980s (Strang, 2019). Viewing laws and public policies through
a modern lens the concept of original intent must be sifted and expose the racist origins and
racial undertones of its use as it relates to progressive ideals of equality like desegregation in
schools as seen in Brown v Board of Education of Topeka (1954) (Terbeek, 2021).
Today, we are experiencing the overturning of laws in the name of original intent that
borders on government overreach. Government overreach is the involvement of the government
in issues that infringe upon human rights and goes beyond the scope of government sight.
Tangentially, judicial activism refers to a philosophy where judges interpret laws and the
Constitution in a way that actively shapes societal change or addresses perceived injustices, often
by expanding or reinterpreting legal precedents beyond their original scope (Mustafa, 2021). In
2022, the Supreme Court overturned the decision in Roe v Wade (1973) with Dobbs v State of
3
REFLECTION: CONTEMP ISSUES
Mississippi (2022) arguing that “the constitution makes no reference to abortion and no such
right is implicitly protected by any constitutional provision” (Hong, 2022). Arguably, this is the
definition of government overreach while others may call it judicial activism. The Dobbs v State
of Mississippi (2022) has the potential to set a frightening precedent of overturning laws that are
not explicitly outlined in the United States Constitution. I reflect on the fact that Constitutional
Framers could not imagine what exists today at the time it was written. I liken it to our Second
Amendment right to bear arms never having considered the possibility of being able to set off
hundreds of shots in a matter of seconds. Somethings simply require considering the modern
context and revisiting based on social changes, however, ignoring the complexities of
contemporary issues on a constitution that could not have envisioned what we see today is
dangerous.
When discussing the social impacts of post-World War II America, I appreciated the amount of
my classmates who offered insight on the impact of the Women’s Rights Movement and the
Civil Rights Movement. What this confirmed for me, from the 1950s to the 1970s to 2024, we
are still being plagued with issues concerning race and gender equality. As such, I recognize that
there is still much work to do. In 1972, Title IX set to guarantee the right to education free of sex
discrimination but neglected to consider protections for transgender students and is another
example of how modern social issues must inform social policies (Buzuvis, 2013). Many of
which may not align with the original intent of the framers but support social evolution.
In “Crisis and the Leviathan”, Higgs (1987) examines how the government’s power expands
significantly during times of crisis yet rarely returns to its pre-crisis state and size (Keller, 1991).
Gaining a deeper understanding of the ways the United States government has grown across
history through events such as war, economic downturns and social upheavals, I am brought
4
REFLECTION: CONTEMP ISSUES
back to the necessity of social policies and the complexities of holding policies that are
contingent upon social needs against the United States Constitution that could not have imagined
the contemporary issues of today. In a modern context, we’ve seen how the government
expanded due to the Civil Rights movement with expansion of voter rights, further desegregation
of schools and much more. Likewise, after 9/11, we witness a series of national security
measures put in place that still exists today (Hollander & Whitfield, 2005). Higgs’ work helps
understand the crucial ways in which crises in shaping the United States government and the
necessity of balancing the demands of crisis management and the preservation of democratic
principles and liberties.
Throughout this course, I’ve discovered a new interest in progressive constitutional
theory. Sultany (2012) frames this as seeking to understand and address the ways in which legal
and constitutional frameworks can be used to advance social justice, equality and well-being for
all United States citizens. The paradox of constitutional democracy and the pursuit of justice in a
progressive manner is something that I believe the country will contend with for the rest of its
existence. I believe that it is unrealistic to think that as a nation, our founding fathers have had it
figured out entirely. Compared to many other nations, the United States is a fairly new country.
Countries that existed prior to Jesus ever walking the earth or constantly having to revisit their
policies, their procedures and consider the social climate that exists today. We see this as
recently as March 2024, when France made abortion a constitutional right (Charlton & Le Deley,
2024). Personal beliefs and agreements aside, France is an example of listening to the calls to
action for its people, acknowledging the social climate at play, reflecting on what it means to be
a nation that puts its citizens first and acting on that.
5
REFLECTION: CONTEMP ISSUES
My last and perhaps greatest reflection has been grappling with my foundation as a
believer in Christ and what I know He has called me to follow, and the progressivism needed to
support this nation. This course has had me sit with concepts of progressivism, judicial activism,
governmental oversight and whether the principles that I choose to follow as a believer belong in
the conversations about law and policy. 1 Corinthians 2:14 says “The person without the Spirit
does not accept the things that come from the Spirit of God but considers them foolishness and
cannot understand them because they are discerned only through the Spirit” (NIV, 1971/1995).
We cannot expect nonbelievers to subscribe to our belief systems, yet I feel impassioned to
support God’s creation through law and policy. Where’s the line? What does it look like to not
compromise my beliefs and yet show up in a way that American citizens can feel heard and
taken care of that one day they may see the light of Christ shining through me? I don’t yet have
the answers and this may be a lifelong exploration, but I’m grateful for the language to put into
context the paradox I have personally felt along this journey.
6
REFLECTION: CONTEMP ISSUES
References
Buzuvis, E. E. (2013). On the basis of sex: Using Title IX to protect transgender students from
discrimination in education. Wisconsin Journal of Law, Gender & Society. 28(3). 220-245.
https://digitalcommons.law.wne.edu/cgi/viewcontent.cgi?article=1291&context=facschol
Charlton, A., & Le Deley, J. (2024). France enshrines abortion as a constitutional right as the
world marks International Women’s Day. The Associated Press.
https://apnews.com/article/international-womens-day-france-abortion-constitution-
e9475951b59cd5778b9741aa4a21f339
Hollander J.B. & Whitfield, C. (2005). The appearance of security zones in US cities after 9/11.
Property Management. 23(4). 244-256. https://doi.org/10.1108/0263747510618398
Hong, K (2022). The Supreme Court’s draft abortion decision overturning Roe v Wade: How
originalism’s rejection of family formation rights undermines the Court’s legitimacy and
destabilizes a functioning federal government. Montana Law Review. 83(5).
https://scholarworks.umt.edu/cgi/viewcontent.cgi?article=1150&=&context=mlr_online&=&sei-
redir=1&referer=https%253A%252F%252Fscholar.google.com%252Fscholar%253Fhl%253Den
%2526as_sdt%253D0%25252C21%2526q%253Droe%252Bv%252Bwade%252Band
%252Borignialism%2526btnG%253D#search=%22roe%20v%20wade%20orignialism%22
Keller, R. (1991) Crisis and leviathan: A critique and reconstruction. Journal of Economic
Issues. 45(2). 665-666. https://www.jstor.org/stable/4226417
Mustafa, C. (2021). The view of judicial activism and public legitimacy. Crime Law Soc Change. 76. 23-
34. https://doi.org/10.1007/s10611-021-09955-0
7
REFLECTION: CONTEMP ISSUES
New International Bible. (2011). The NIV Bible. https://www.thenivbible.com/ (Original work
published in 1978)
Powell, H. J. (1985). The original understanding of original intent. Harvard Law Review. 98(5).
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1390&context=faculty_scholarship
Strang, Lee J. (2019) A brief history of originalism in American constitutional interpretation.
Originalism’s promise: A natural law account of the American Constitution. Cambridge
University Press. 9-42. https://doi.org/10.1017/9781108688093.002
Sultany, N. (2012). The state of progressive constitutional theory: The paradox of constitutional
democracy and the project of political justification. Harvard Civil Rights—Civil Liberties
Law Review (CR-CL). 47(2). 1-86
Terbeek, C. (2021). “Clocks must always be turned back”: Brown v Board of Education and the racial
origins of constitutional originalism. American Political Science Review. 115(3). 821-834.
https://doi.org/10.1017/S0003055421000095
Powered by TCPDF (www.tcpdf.org)
