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Judiciary, Current Trends and Issues

strict constructionists, liberal interpretation, Pledge of Allegiance, national flag, Amish

Presently the judiciary has several challenges. The first involves a debate over the proper limits of the Supreme Courtís activism. This debate pits judicial fundamentalists, or strict constructionists, against judicial activists, also known as loose constructionists.

Strict constructionists believe the Supreme Court should interpret the Constitution using only its specific wording and the original intentions of its authors. In this way, they argue, the court would serve as a gatekeeper, maintaining the balance between the separate powers of government and adhering to established precedents. Strict constructionists believe that changes should come through executive and legislative actions and through the states.

Loose constructionists favor a liberal interpretation of the Constitution. They hold that the authors of the Constitution did not intend to preserve an unchanging society, but instead meant the Constitution to adapt as the needs of the nation changed. Thus, they argue, the court should be free to clarify the vague language of statutes and to interpret rules for practical application. In this view, the Supreme Court considers the constitutionality of important public issues in a society that is much different than it was when the Constitution was written.

Loose constructionists also believe the judiciary stands as the primary protector of minority rights and unpopular viewpoints. Judicial activists look to the courts to protect rights and opinions that are not widely accepted and that might be trampled by a legislative majority. By adopting a flexible view of the Constitution, the Supreme Court has often upheld the rights of minority groups, such as the Amish or Jehovahís Witnesses. For example, the Amish have used the First Amendment to challenge the application of statesí school laws to their children. Members of Jehovahís Witnesses have challenged the right of the state to draft them for military service and have refused to allow their children to salute the national flag or say the Pledge of Allegiance to the Flag. They have turned, often successfully, to the Supreme Court to sustain their constitutional right to dissent.

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