Philosophies of Constitutional Interpretation

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Compares and contrasts the major schools of thought that guide judicial decision-making, including judicial activism vs. judicial restraint and originalism vs. the 'living Constitution' theory.

Philosophies of Constitutional Interpretation

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What is the judicial philosophy of judicial restraint?

A theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional, deferring to the policy decisions of the elected branches.

What is the judicial philosophy of judicial activism?

A theory of judicial interpretation that encourages judges to use their power broadly to further justice, especially in the areas of equality and personal liberty. It suggests the courts should play an active role in shaping policy.

What is the 'originalism' or 'strict constructionist' approach to interpretation?

An approach where judges attempt to interpret the Constitution based on the original intent of the framers or the original public meaning of the text at the time it was written.

What is the 'living Constitution' or 'loose constructionist' approach?

An approach that views the Constitution as a dynamic document whose meaning should be interpreted in the context of contemporary society. It argues that constitutional principles must be adapted to modern values and conditions.

How does the principle of "stare decisis" relate to judicial philosophy?

Judges who favor restraint and originalism tend to place a high value on "stare decisis" (following precedent). Judges who are more activist or believe in a living constitution may be more willing to overturn precedents they view as outdated or wrongly decided.

What is a common critique of the 'living Constitution' theory?

Critics argue that it allows judges to become "unelected legislators" by imposing their own personal policy preferences and values, which undermines the democratic process.

What is a common critique of the 'originalism' theory?

Critics argue that it's often impossible to know the true "original intent" of the framers and that a rigid adherence to centuries-old meanings can lead to unjust or impractical outcomes in modern society.

Can judicial activism be either liberal or conservative?

Yes. Activism is about the willingness to overturn laws or precedents, not the political direction. A conservative court striking down campaign finance laws ("Citizens United") can be seen as just as activist as a liberal court establishing a right to privacy ("Griswold v. Connecticut").

Philosophies of Constitutional Interpretation

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