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

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Posted on (Answer #1)

This is, of course, a matter of personal opinion.  There is no one judicial philosophy with respect to judicial review that is objectively correct.  My own view is that the Supreme Court should adopt a philosophy of loose construction of the Constitution.

I say this for two reasons.  First, this is because it is not really possible to objectively determine the “original intent” of the Constitution.  Whose original intent is to be consulted?  Those who wrote the document, those who signed it, or those who voted to ratify it?  How do we know what they intended, particularly if we are talking about the people who voted for it?  There were no opinion polls in those days.  We simply cannot meaningfully speak about what the original intent of the Constitution is.

Second, even if we could determine what the original intent was on the issue, for example, of gay marriage, do we really want to be governed by the specific policy preferences of wealthy white men from 230 years ago?  These were, after all, people who kept slaves and believed that women were inferior to men.  We should not try to follow their policy preferences.  Instead, we should try to follow their broad ideas while applying our own modern standards to those ideas.

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