strict constructionist

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  • Strict Constructionists
    • Can be called strict internationalists, originalists and interpretivists
    • Judicial restraint is the doctrine that cases should be decided on the narrowest possible grounds, without resolving unnecessary issues, especially political or social controversies.
    • Before 1953 the Court may be said to have adopted the model of judicial restraint
    • Famous justice associated with strict constructionism: Felix Frankfurter. Leading contemporary supporter, Robert Bork.
    • Strict constructionist justices are primarily concerned with the intentions of the Founding Fathers. Fidelity to the text of the Constitution is critical for them. To move beyond the intentions of the Fathers is an unwarranted exercise of judicial power. 
    • Main ideas
      • Justices should examine the literal meaning of the words as written and understood at the time
      • The intentions of the authors of the Constitution or the Amendments should be studied
      • Inferences should be made from the principles and structure of the Constitution or the writings of the fathers
    • Arguments in favour
      • Undermines the separation of powers – the legislature’s will is undermined
      • The federal judiciary is unelected
      • Activism assigns power to an elite institutional which is not democratically accountable to the people. 
      • Justices who base their rulings on loose constructionism are inevitably imposing their own values. In many cases these values are unrepresentative of the American opinion
    • Constitution of detail – constitution expresses only the very specific, concrete expectations of the particular statesmen who wrote and voted for them. The Equal Protection, for example, would only have the force that the people who wrote it and voted for it would have expected it to have


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