Question

Should judges cultivate a more strict-constructionist or liberal-constructionist judicial philosophy? Also, should judges with the philosophy you select be more judicially restrained or judicially active?

Create a unified and cohesive argument.(summary)

Form a claim by selecting one option from each of the two questions above.

Include and defend at least two arguments for each claim.

For question two, include and rebut at least one counterargument.

Answer 1

Strict constitutionism

the United States, strict constructionism is a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation.One of the hardest parts of a judge's job is making difficult, and at times unpopular, legal decisions. Because the United States Constitution was written in relatively general terms, there have always been questions about how to best interpret it. Strict constructionism is a legal philosophy that applies a narrow, or strict, interpretation to a legal text, like the U.S. Constitution.Under strict constructionism, a judge can interpret a text as it is written, considering only what is presented within the four corners of the legal document. While strict constructionism is often thought of as a way of interpreting the Constitution, it may also be used to interpret laws and other legal texts.Strict constructionists seek to understand and apply the original meaning of the legal text. They do not rely upon political or personal motivations when applying the law. Likewise, they aren't driven to hand down a particular ruling or judgment for the sake of obtaining a specific result. That approach is known as judicial activism.

Judicial Philosophy

Judicial Philosophy is the way in which a judge understands and interprets the law. Laws are universal, but they must be applied to particular cases with unique circumstances. To do this, judges interpret the law, determining its meaning and sometimes the intent of those who wrote it.

The main types of contrasting judicial philosophies include judicial activism versus judicial restraint, loose constructionism versus strict constructionism, and living document versus original intent.

Some judges develop a philosophy of activism, using the bench to enact social and political change. Other judges practice a philosophy of restraint, believing that judges must interpret the law strictly rather than seek to make new laws. And all judges, regardless of their philosophies, develop their own methods of reading the Constitution. Some judicial philosophies tend to coincide with certain political views. Most strict constructionists, for example, are also advocates of judicial restraint, but not all. Similarly, many advocates of judicial restraint also follow the doctrine of original intent. These views, however, do not always overlap. As a result, judicial philosophies are not the same as political ideologies.

Judicial Restraint

Judicial Restraint is 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. Judicially-restrained judges respect stare-decisis, the principle of upholding established precedent handed down by past judges.

Judicial Activism

The expression `judicial activism’ is often used in contrast to another expression `judicial restraint’. Judicial activism is a dynamic process of judicial outlook in a changing society. Arthur Schlesinger Jr. introduced the term "judicial activism" in a January 1947 Fortune magazine article titled "The Supreme Court: 1947".According to Black's Law Dictionary judicial activism is a " judicial philosophy which motivate judges to depart from the traditional precedents in favour of progressive and new social policies”.D

Strict constructionism

Strict constructionism” and “judicial activism” were two terms that came into play quite frequently in the last presidential election. A core constituency of one of the major political parties made the title of this article one of their chief weapons of attack as it pertains to the almost certainty there will be at least one, and possibly four, vacancies on the U.S. Supreme Court

Strict constructionisim, or original intent, is a theory limiting interpretation of legal and constitutional language to the literal meaning of this language at the time of passage. This theory contrasts with a loose construction of laws, which allows broader discretion by judges to determine intent in legal language

Criticism

In the strictest sense, opponents argue that the original meaning of the constitution, as it was written in 1788, can't be applied to modern legal dilemmas. Sometimes, a judge's strict interpretation of a text can lead to unusual, or even absurd, results. This is referred to as the doctrine of absurdity.

For instance, imagine two parties negotiating the sale of a boat. After they agree on the terms, they work together to draft a contract. However, due to a clerical error, the contract refers to a 'boar' instead of 'boat,' which in the strictest sense would obligate the seller to sell a boar, instead of a boat, to the buyer