Prevailing Legal Theory in the United States Today

¶ … Prevailing Legal Theory in the United States Today

Common legal theories in the United States today

The most commonly-espoused legal theories in the media today are those of 'strict construction' and 'broad construction' (otherwise known as 'judicial activism.') Strict construction, according to its adherents, means strictly adhering to the 'letter of the law' and strictly interpreting the Constitution according to the original intent of the authors of the document. Strict construction uses a "literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes" (Sollum 2009). Strict construction interpreters have been highly critical of decisions such as Brown v. Board of Education, which examined evidence of the psychological impact of segregation upon young, African-American children and Roe v. Wade, which created a test of viability for the fetus while protecting women's absolute right to choose abortion for the first trimester, and only allowed restrictions in the second trimester to protect women's health.

However, many people have called this definition of strict construction somewhat specious, given that so-called conservative U.S. Supreme Court justices have often enacted broad-sweeping legal decisions that significantly enhanced the founders' interpretation of the Constitution. For example, the largely conservative Roberts Court recently made one of the broadest-sweeping decisions in history -- "the justices overturned a ban on letting companies and unions use their own funds to produce their own campaign ads. The decision also eliminated the so-called McCain-Feingold ban on issue-oriented ads within 30 days of a primary and 60 days of a general election" (Supreme Court OKs corporate campaign contributions, 2010, PBS)

"By contrast 'broad construction' looks to what someone thinks was the 'intent' of the framers' language and expands and interprets the language extensively to meet current standards of human conduct and complexity of society" (Sollum 2009). In general, this is by far the most common legal point-of-view held by mainstream politicians and scholars. However, popular support for different legal philosophies varies widely, depending upon the character of the electorate. For example, strict construction jurists tend to interpret the Second Amendment as prohibiting any form of major restriction on guns. Politicians from areas afflicted with urban crime tend to support handgun restrictions while politicians from rural areas where hunting is common do not (Jones 2008). Likewise, many politicians say that they support a woman's right to choice, even while they do not personally support abortion.

It should be noted that the term 'judicial activism 'is often used as an epithet to characterize the acts of justices who strike down laws or reinterpret laws in a manner that is seen as 'adding' to the laws of the U.S. Constitution. However, "what is usually meant by judicial activism is not simply judicial activity or judicial activity invalidating action by the political branches. Rather, judicial activism means judicial activity that wrongfully invalidates action by the political branches" such as segregation (Sollum 2009). Protecting the rights of citizens rather than narrowly adhering to conventional interpretations of existing law is prioritized by so-called judicial activists. For example, in 1965, in Griswald v. Connecticut, the Warren Court declared that the state's current birth control laws unconstitutional because they made it "a crime for anyone to give out information or instructions on the use of birth control devices" which "intruded upon notions of privacy surrounding the ideas of marital privilege and reproductive rights" (Stephens 2003).