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What judicial philosophy should guide the Supreme Court's exercise of judicial review?

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ziendj33 | (Level 2) eNoter

Posted April 10, 2013 at 3:00 PM via web

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What judicial philosophy should guide the Supreme Court's exercise of judicial review?

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pohnpei397 | College Teacher | (Level 3) Distinguished Educator

Posted April 10, 2013 at 3:12 PM (Answer #1)

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There is, of course, no objectively correct answer to this question.  I would argue that the Supreme Court should hold to a philosophy of loose construction and should treat the Constitution as a living document.  This is the philosophy that should inform its use of judicial review. 

Some people would argue that the Supreme Court should hold to a strict construction informed by original intent.  In this view, the Court should adhere to the letter of the Constitution and should interpret it as they believe the Framers meant it to be interpreted.

However, I do not think that this is a viable way to interpret the Constitution or a good way to do so.  The Constitution should be seen as a set of ideas, not as a set of exact rules.  For example, we should understand that the Constitution generally wants the government to leave people alone and let them make their own choices.  Therefore, the Court should not allow things like laws against homosexual behavior just because there is nothing in the Constitution that protects such behavior.  The Court should understand that the Constitution is a set of ideas about the proper relationship between government and people, not a set of detailed laws.

I would argue, then, that it is important for the Court to engage in loose construction and to adapt the Constitution to modern conditions.  These are the ideas that should be behind its use of judicial review.

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