Judicial activism is a controversial issue because judges are often presumed to be almost robotically neutral. However, judges are human beings who are concerned about the integrity of the law as the law reflects core values and social norms. When the laws do not reflect progress in social norms, judges often take the initiative to make decisions that encourage change. Called "judicial activism," the process of using judicial power to influence the law is an inevitable part of the American justice system and an inevitable component of American political culture.
Judicial activism can be loosely defined as "decisions that overturn laws and overrule precedents," (Chemerinsky, 2010). Judicial activism is contrasted with judicial restraint, which "occurs when courts defer to the other branches of government and follow precedents," (Chemerinsky, 2010). It is easy to see how when the public agrees with the policy in question, judicial activism is celebrated but not when…...
Judicial activism has had a profound effect on American society. Some examples of judicial activism include: Brown v. Board of Education—the 1954 Supreme Court case in which the Court ruled that segregation was a violation of the Constitution and thus public schools were desegregated. Roe v. Wade is another example: this 1973 Supreme Court case made abortion legal. These examples fundamentally altered the character and fabric of society in ways that continue to have repercussions even to this very day.
The Constitution allows judges to play an activist role because ultimately the framers of the Constitution recognized how important and crucial the judiciary branch of the government would be. Just as the executive and the legislative branches can be activist, so too can and ought to be the judiciary branch. Judicial officials are often misrepresented as being impartial, but the reality is that they are not impartial but rather very partial—partial…...
Kelo V. New London Judicial Activism
Kelo V. City of New London and Judicial Activism
Kelo v. City of New London, 545 U.S. 469 (2005) analyzes the issue of eminent domain and the circumstances under which a city or government can use this to seize an individual's property. In Kelo v. City of New London (2005), Susette Kelo sued the city of New London claiming that her property, and the properties of her neighbors, were illegally seized because they were not taken to be developed for public use, one of the requirements of eminent domain. Furthermore, Kelo argued that the property seizures were a violation of the Fifth and Fourteenth Amendments thus rendering them unconstitutional. After analyzing the dissenting views of the Supreme Court Justices that exercised judicial restraint, it is clear that judicial activism was used to define "public use."
Traditionally, judicial activists believe the U.S. Constitution is a living document that…...
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References
Eminent Domain: Drawing the Line on Property Rights. (2009, Nov 10). W.P. Carey School
Judicial Philosophy of the Supreme Court
Judicial philosophy is a concept that refers to the way judges understand and interpret the law in relation to the specific cases they are handling. This concept emerges from the fact that while laws are universal and broad, they need to be applied to specific cases based on the judge's understanding and interpretation of the law as well as the unique circumstances surrounding the case. The two most common judicial philosophies of the Supreme Court are judicial activism and judicial restraint, which have influenced various cases including Gore vs. Bush (2000) and Obergefell vs. Hodges (2015). Judicial activism refers to a philosophy in which judges depart from conventional precedents to adopt new, progressive social policies whereas judicial restraint is a philosophy in which judges limit the exercise of their own authority (Bendor, 2011).
Judicial activism of the Supreme Court influenced cases like Gore vs. Bush (2000)…...
Understanding the Judiciary: Activism, estraint, and PowerThe judiciary is one of the three main parts of our government, and its role is to interpret and apply the law. However, people do not always agree on how it should do this. Some people think that courts have become too powerful and that judges are making laws from the bench, a concept known as judicial activism (oosevelt, 2008). Others believe that courts should show judicial restraint, which means they should only interpret the law, not make it (Epstein & Walker, 2019).One of the primary roles of the judiciary is the interpretation and application of the law. This includes deciphering the meaning of statutes, regulations, and constitutional provisions. In doing so, the judiciary ensures that the law is applied consistently and fairly across all cases and circumstances. Another critical role of the judiciary is the protection of individual rights and liberties. Courts often…...
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ReferencesRoosevelt, K. (2008). The myth of judicial activism: making sense of Supreme Court decisions. Yale University Press.Epstein, L., & Walker, T. G. (2019). Constitutional Law for a Changing America: Rights, Liberties, and Justice. CQ Press.Friedman, B. (2009). The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. Farrar, Straus and Giroux.Rosenberg, G. N. (2008). The Hollow Hope: Can Courts Bring About Social Change? University of Chicago Press.Tushnet, M. (1999). Taking the Constitution Away from the Courts. Princeton University Press.
WEEK 1 CHAPTE EVIEW JOUNAL BLWeek 1 Chapter eview Journal BLQuestion 1In my opinion, if the Court were to hear a new flag burning case, it should follow precedent and find that setting the American flag ablaze essentially constitutes free speech and is secured by the U.S. constitution. This is more so the case given that in some scenarios, this may be the only powerful way to protest against certain ills or inefficiencies attributable to the government. For instance, when the government of the day has an ineffective or poorly implemented foreign policy, or when the government engages in brutal acts against the very people who elected it to power, mere street protests may not be sufficient to express displeasure. Protesters ought to be permitted to engage in an expressive form of symbolic speech in such a case and owing to the fact that the flag is essentially the…...
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ReferencesBest, A. & Barnes, D.W. (2007). Basic Tort Law: Cases, Statutes, and Problems. Wolters Kluwer. Petersen, N. (2017). Proportionality and Judicial Activism. Cambridge University Press.
students opportunity discuss a key political science concept, show a basic understanding academic research reporting skills.
Define "loose construction" and "strict construction" methods of constitutional interpretation, and describe how each perspective aligns with formal vs. informal methods of change.
The 'strict construction' view of the Constitution has traditionally been aligned with conservatives such as Robert Bork who argue that "a judge interpreting the Constitution" should only consider "the words used in the Constitution [as] would have been understood at the time [of enactment]" (Linder, citing Posner, "Theories"). In contrast, the 'loose construction' view (traditionally aligned with more liberal politics) stresses the need to interpret the Constitution in a manner beyond the letter of the law. There are a number of factors which justices traditionally consider when making constitutional interpretations, including the text itself; likely intentions of the founders; precedents; consequences of the decision in the 'real world;' and so-called 'natural law'…...
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Works Cited
Chemerinsky, Erwin. "Conservatives embrace judicial activism in campaign finance ruling."
For example, the EP has the right to bring an action for failure to act, and can also take action to have the ECJ review acts of the Council or the Commission.
Despite those protections, the ECJ determined that the legal remedies provided for in the Euratom Treaty and EEC treaty might be ineffective or uncertain.
For example, an action for failure to act cannot be used to challenge a measure that has already been adopted.
In addition, though the EP has the right to seek a preliminary ruling on the validity of such an action, such a ruling does not mean that anyone will actually bring an action for annulment.
In fact, even though the Commission is required to respect the EP's prerogatives, it is not obliged to adopt the EP's positions as its own.
As a result, the ECJ concluded that the legal remedies available to the EP were not sufficient to…...
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Works Cited
"Article 230." Treaty of Nice. 2000. University College Cork. 25 Aug. 2009
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Case 70/88, European Parliament v. Council of Ministers, Judgment of the ECJ of 22 March
Courting Disaster
This study reviews Pat obertson's "Courting disaster: How the Supreme Court is usurping the power of Congress and the people." Pat obertson is the founder and chairperson of the Christian Broadcasting Network, founder of egent University, and The Center for Law and Justice. He and his wife have four children and thirteen grandchildren. They reside in Virginia Beach, Virginia. Using both legal and religious points-of-view, obertson attempts to prove that the current operation of the judicial system is dangerous to both the republican form of government and our individual freedoms. While seeking to strengthen his argument, the author has compiled fascinating facts, quotes, case decisions, and opinions of the Court (Mu-ller-Fahrenholz, 2007).
From this study, it is evident that obertson undertook a political expedition seeking to identify various issues that bedeviled the American society. However, he fails to provide solutions to the identified problems. This is an action conscious book.…...
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References
Barrett, P., & Smolla, R.A. (2010). A year in the life of the Supreme Court. Durham [u.a.: Duke Univ. Press.
Edwards, L., & Meese, E. (2011). Bringing justice to the people: The story of the freedom-based public interest law movement. Washington, DC: Heritage Books.
Melashenko, E.L., & Smith, D.B. (2009). Rock-solid living in a run-amok world. Hagerstown, MD: Review and Herald Pub. Association.
Mu-ller-Fahrenholz, G. (2007). America's battle for God: A European Christian looks at civil religion. Grand Rapids, Mich. [u.a.: William B. Eerdmans Publ.
Judicial activists like Chief Justice Earl Warren used their power to invoke the Constitution in social changes like school desegregation. They believe the government must stay current with the times and change, rather than become archaic.
Capital punishment is one of the most hotly debated punishments in our judicial system. That is because it is a very emotional issue, and both sides are equally convinced their ideas are right. Because it involves taking a life as punishment for a crime, it is an ethical and moral dilemma, too. Supporters of capital punishment believe it helps keep crime down by scaring potential criminals about the sacrifice they could pay if they commit a heinous crime. They also believe that if the criminal committed a crime like murder, that they could do it again if they faced the possibility of parole, so they believe capital punishment is good for public safety. They…...
The first amendment to the Constitution in the ill of Rights states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." This provision has been the justification for entirely removing prayer from schools and the mention of God from public places. This may not have been the intention of the Framers. They were concerned that the government could not establish an official state religion, as had been done in many countries in Europe. They did not intend to eliminate religion from public life.
The problem with judicial activism is that it becomes very hard to stop once it begins. As stated, while most would agree that a right to privacy is desirable, what about other rights or privileges with which the majority would not agree. The Constitution was designed with a process to amend it as conditions change. The Framers anticipated that…...
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Bibliography
Constitution of the United States. September 17, 1787.
Bill of Rights of the United States. 1791.
Burns, James MacGregor and J.W. Pelton. Government by the People. Englewood Cliffs: Prentice-Hall, 1972.
Burns, James MacGregor and J.W. Pelton. Government by the People. Englewood Cliffs: Prentice-Hall, 1972, p. 44.
Living Constitutionalism
As the leader of the free world, the United States remains in the limelight as the rest of the world keeps a keen eye on how they conduct their affairs. As it appertains to constitutional interpretation, the U.S. has a sound philosophy dubbed 'living constitutionalism.' In the American constitutional dispensation, as in other countries, the letter of the law is unequivocal. That notwithstanding, many agree that every society is dynamic in nature. As such, as society keeps changing, there is a growing need for the constitution to be equally as dynamic in view of various considerations. Implementing and enforcing the letter of the law as stated in constitutional clauses often has its shortcomings. The concept 'Living Constitutionalism' revolves around humanizing the law. By adding the element of humanity in the law, the constitution gains a dynamic element. This idea relates to the view of the society as contemporaneous, which…...
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References List
Alstyne, William Van. 2010. "Clashing Visions of a "Living" Constitution: Of Opportunists and Obligationists." Cato Supreme Court Review 13-26.
Balkin, Jack M. 2012. "Panelist Papers: The Roots of the Living Constitution." Boston University Law Review 92, 4:1129-1160.
Denning, Brannon P. 2011. "Common Law Constitutional Interpretation: A Critique." Constitutional Commentary 27, 3:621-645.
Dodson, Scott. 2008. "A Darwinist View of the Living Constitution." Vanderbilt Law Review 61, 5:1319-1347.
1st Amendment Issues
A highly controversial decision rendered on January 21st of this year by the Supreme Court, affirming the right of corporations and other organizations to enjoy consideration as "persons" and the 1st amendment protections afforded by that status, threatens to undermine the foundation of this country's democratic process. With their closely contested 5-4 decision in the case of Citizens United v. FEC, the high court's conservative members have effectively shattered existing precedent regarding the ability of corporations to channel shareholder funds to political campaigns. In their effort to protect the duly granted right of individuals to contribute money as a form of political speech and expression, the justices in the majority have effectively opened a Pandora's box of unintended consequences. By extending the rights held by individual citizens of this nation to corporate conglomerates and multinational entities, the Roberts court has redefined the menace of judicial activism once…...
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 oe v. Wade, which created a test of viability for the fetus while protecting women's absolute right to choose abortion…...
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References
Carmona, Ana Julia Bozo. (1999). Toward a postmodern theory of law. Paideia project.
American Government: Judicial Branch1. In order for a court to hear a case, it must have jurisdiction. What is jurisdiction? Distinguish between original jurisdiction and appellate jurisdiction.The term jurisdiction is used to refer to the legal authority or power of a court, government, or administrative body to administer justice, make decisions, and enforce laws within a defined geographic or specific subject matter area. The term also subsumes the scope and degree of authority that is assigned by operation of law to govern and regulate people and their actions. According to the editors of American Government (hereinafter the text), original jurisdiction is constitutionally reserved to the Supreme Court. In this regard, the text states, In cases of original jurisdiction the courts cannot decide the U.S. Constitution mandates that the U.S. Supreme Court must hear cases of original jurisdiction (chap. 13).Therefore, all cases besides those involving disputes between the several states…...
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ReferencesAmerican Government, 1st ed. Textbooks. Retrieved from v. Wade. (2023). Center for Reproductive Rights. Retrieved from https://reproductiverights. org/roe-v-wade/#:~:text=In%20June%202022%2C% 20in%20a,no%20constitutional %20right%20to%20abortion.Shoemaker, K. et al. (2023). “Abortion Was a Crime”? Three Medievalists respond to “English cases dating all the way back to the 13th century corroborate the treatises’ statements that abortion was a crime.” Law & History Review. Retrieved from https://lawandhistory review.org/article/abortion-was-a-crime-three-medievalists-respond-to-english-cases-dating-all-the-way-back-to-the-13th-century-corroborate-the-treatises-statements-that-abortio/.https://textbooks.whatcom.edu/amgov/ .Roe
The Evolution of Marriage Law and the Recognition of Same-Sex Relationships The Impact of Obergefell v. Hodges and Subsequent Legal Precedents on Same-Sex Marriage The Role of Judicial Activism in Same-Sex Marriage Jurisprudence Comparative Analysis of Same-Sex Marriage Laws in Different Countries
Social and Cultural Impacts
The Transformation of Family Structures and Kinship Relations The Impact of Same-Sex Marriage on Children and Their Well-being The Role of Religion in Shaping Public Opinion on Same-Sex Marriage The LGBTQ+ Rights Movement and Its Advocacy for Marriage Equality
Political and Economic Considerations
The Influence of....
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