Supreme Court of the United States

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

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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...

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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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The answer to this is, of course, a matter of personal opinion.  Different people will have different answers.  In my response to your question, I will give some reasons for each judicial philosophy so that you can choose for yourself which is more attractive to you.

One philosophy is the philosophy of judicial activism.  Some people like this philosophy because it allows the courts to safeguard the rights of the people.  When the Supreme Court engages in activism, it does not defer to Congress.  It aggressively strikes down laws that it finds unconstitutional, thus protecting us from government infringements on our rights.  

Another philosophy is judicial restraint.  Some people like this philosophy because it seems more democratic to them.  When the Court follows this philosophy, it lets the elected branches of government take the lead.  It only overrules them when they pass laws that are blatantly unconstitutional.  Letting the elected branches take the lead is more democratic (at least arguably) than having unelected judges being more aggressive about striking down laws.

We can also look at two other philosophies.  These philosophies are not opposed to the two already mentioned.  Instead, they are simply different.  They vary on a different axis than judicial restraint and activism.

One of these philosophies is the philosophy of strict constructionism and original intent.  Some people like this philosophy because they think it is more faithful to the Constitution.  They say that it looks only at the clear meaning of the Constitution based on the words of the documents and the intentions of those who wrote it.  By using this philosophy, they say, the Supreme Court is honoring the true meaning of the Constitution rather than inserting the justices’ own opinions into its decisions.

The other philosophy is that of loose constructionism and the “living Constitution.”  Some people like this philosophy because it allows us to change our basic laws as our country changes.  It does not force us to be bound by the thoughts of rich, white men who lived over 200 years ago.  In addition, they like it because they do not believe that it is really possible to know what the Framers meant when they wrote the Constitution.  It is not possible to know which of the Framers’ opinions we are supposed to try to determine and it is hard to know how to accurately understand what each of the Framers thought.

Having looked at this discussion you should be able to pick which philosophy or philosophies you think the Supreme Court should use.

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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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