Study On The Creativity Of The United States Constitutional Interpretation

In the United States, the focus of debate about the method of constitutional interpretation is the way that the interpreters choose, when there are loopholes in the provisions of the constitution. One view is that the judge should follow the contitutional fathers'intent or the meaning of the text. Another view is that the life of the constitution lies in experience rather than logic.When the judge confronts the constitutional loopholes, he should be actively to play a creativity role in the process of constitutional interpretation. "The creativity of constitutional interpretation" refers to when the judge encounters difficult cases in the judicial process, he takes a judicial activism tendency which performs judicial liberalism as the core in most cases. It has both connections and differences with judicial liberalism and judicial activism of the United States judicial philosophy. The creativity of constitutional interpretation makes the judge be able to take a flexible approach, uphode a certain legal idea in judicial decisiona,constantly promote the social, politicial, economic, legal, cultural change and development.In the United States, the prime time of the development of the creativity of constitutional interpretation is the period of the Marshall Court and the Warren Court. They are the fact that the United States Supreme Court justice practice the creativity of constitutional interpretation. The creativity of constitutional interpretation has its rationality basis of the existence. Philosophical hermeneutics makes the spirit of liberalism and realism permeate the whole process of comstitutional interpretation. Although the anti-democratic voice of the creativity of constitutional interpretation never stopped, a powerful argument from its defenders regain the situation on some level. In adition, the application of measurement mode make the creativity of constitutioal interpretation can not be replaced, although it has controversy.