SUPREME COURT: Outline the advantages and disadvantages of loose constructionism

This is likely to be a short 15 mark question

Ok let's consider the question.

What is loose constructionism?

Loose constructionism; interpreting the Constitution in a broad way. 

This is in direct contrast to strict constructionism, which tends to interpret the Constitution in a very literal way. Loose constructionists tend to be liberal judges who consider how society's values have changed over the years, taking this into account when making decisions.

For example, the Constitution says citizens have the bear arms (own guns)

The strict constructionist would read this and say that every adult citizen therefore should be free to have a gun.

Whereas, the loose constructionist would say that this is not practical in 21st century America where gun violence is a major issue. Rather, they would interpret this as a collective right instead of an individual right i.e army and police officers can own guns on behalf of the citizens

There are some situations where loose constructionism will increase the general welfare of citizens e.g. gun rights. But this type of interpretation also has it's problems

So let's answer the question

Main body

1) Advantage; Loose constructionists tend to uphold civil rights and liberties. Judicially active, loose constructionist judges such as Ruth Bader Ginsburg tend to dissent in cases which infringe civil liberties such as Salinas v Texas (2013) and agree with rulings that don't e.g. 2015 Same sex ruling

2) Advantage; Loose constructionists often protect minorities, especially those incompatible with Congress or the executive. This is because loose constructionists are not scared to overturn laws or actions made by Congress or the executive e.g. Brown v Board of Education

3) Disadvantage; Loose constructionists tend to be judicially active, which has fuelled arguments on the politicisation of the Court. They 'legislate from the bench' by striking down laws as unconstitutional. This is undemocratic and elitist, as they have mandate from the electorate

4) Disadvantage; Loose constructionists tend to be too sensitive to public opinion, which could hamper the neutrality and independence of the Court. However, some public support is necessary to maintain the authority of the Court

Conclusion

To determine whether loose constructionism is good or bad, think about the purpose of the judiciary. Does this type of interpretation hinder or help the judiciary to achieve its aims?