Importance Of Judicial Restraint Vs Judicial Activism

Better Essays
By any means the Federal courts shouldn 't be able to interpret the U.S. Constitution, they should see it as a living document in which the meaning changes with the times. The courts shouldn 't interpreted the constitution in its original meaning. As the times change and things are viewed differently as they once were, people 's views on things change with the time. Why should we allow the courts to constitution when everyone sees it differently.
The issue of judicial restraint vs. judicial activism is that judicial activism* is generally refers to judges who allow their personal and political views to affect their interpretation of the law, and, consequently, their decisions in important cases. Judicial activists are often accused of ignoring stare decision when making their decisions. (American Psychological Assoc.) For Judicial restraint is a judicial interpretation that encourages judges to limit the exercise of their own power. Judges should hesitate to strike down laws unless they are obviously unconstitutional, though what counts as obviously unconstitutional is itself a matter of some
…show more content…
As we go through time, things change, people change, and also the way we view or think things change. A great example of this would be slavery, in 1612 everyone thought slavery was a good thing. As the times went by people started to see that it wasn 't a great thing, but some people didn 't want to see it was as bad thing. But as time went by people saw that it wasn 't a good thing, so they made a law excused slavey. Thus the reason why we should leave the constitution as a living document whose meaning changes with the times. Allowing the courts to interpreted its original meaning may confuse people and they might also take it the wrong way. By allowing the constitution to change with the times is letting us (the people of the united states) interrupt the constitution how we see

Related Documents

  • Decent Essays

    During the ratification debates of the US Constitution, there was conversation over the necessity of a bill of rights to define people’s rights and limit the government’s powers. Many federalists believed such a bill of rights would not only be unnecessary, but would weaken the constitution and the people, and give the government powers they should have. Noah Webster, Alexander Hamilton, and James Wilson each make arguments against a bill of rights. Webster argues that a bill of rights may be irrelevant in future generations, but people will be reluctant to change or add to it. Hamilton believes that the bill of rights is unnecessary because the constitution itself is in terms a bill of rights.…

    • 1049 Words
    • 5 Pages
    Decent Essays
  • Decent Essays

    The issue with letting Parliament decide on these matters is that Parliament is under pressure from the majority, which can lead to enacting draconian measures against who they fear is the enemy, which is usually a minority with little protection . The courts are removed from this pressure and can question the need for new polices that Parliament may introduce which can infringe on human rights . The legitimacy of the judiciary comes from that fact that it has to have rational arguments, its decisions must come from a legal authority and the judiciary is independent from politics ensuring an unbiased opinion . This gives legitimacy to judicial decisions against unjust laws passed by the government. This is an important when human rights are being considered because with issues of national security can often lead to improper treatment of minorities and foreign nationals.…

    • 1936 Words
    • 8 Pages
    Decent Essays
  • Decent Essays

    Introduction Legal formalism is a belief, in the capacity of legal rules, to determine the outcomes to legal disputes without having recourse to the judge’s political beliefs or sense of fairness. Formalism posits that judicial interpreters can and should be tightly constrained by the objectively determinable meaning of a statute; if unelected judges exercise much discretion in these cases, democratic governance is threatened. Legal-formalist have been severely criticised by, among others, legal realist and critical legal studies scholars. This essay aims to discuss the criticism of legal formalism by the above mentioned movement and school of thought. This will be achieved by critically engaging with questions of whether criticisms of legal…

    • 2094 Words
    • 9 Pages
    Decent Essays
  • Decent Essays

    The Supreme Court System

    • 726 Words
    • 3 Pages

    They also believe that unelected judges should not strike down on laws/policies that were created by an elected legislature. Politicians who oppose judicial activism also believe that courts should only be resolving internal conflicts within the branches and should only use judicial restraint when determining if a law is unconstitutional. (Jones 2016) However, these arguments against judicial activism are iniquitous. The function of the courts is to promote a democracy and ensure that the rights of citizens are not violated. If a law that a legislature has created violates a citizen’s individual liberty, judiciaries should be able to dismantle this…

    • 726 Words
    • 3 Pages
    Decent Essays
  • Decent Essays

    I oppose this concept because it simply goes against what I seem to believe is the most important idea that must be carried out in all forms of the government which is separation of powers. I support a support a system within the government that allows only for each branch to review and be responsible for their own decisions. The Constitution does allow for one branch to check up on the actions of another, however to allow the judges to simply have the full perspective not only for themselves but for all the other branches as well, I fear will lead to a judicial despotism that will be damaging to us…

    • 1713 Words
    • 7 Pages
    Decent Essays
  • Decent Essays

    Should Judges Make Law

    • 1958 Words
    • 8 Pages

    Judges may use a different approach in cases with similar facts. Some appear to choose an approach to enable them to reach their own desired outcome. Lord Hailsham said ' 'the trouble with Denning is he 's always remaking the law and we never know where we are ' '. Judges are not elected and both the purposive and mischief rule allow the judge to consider the policy (what will benefit society) behind the statute. It is arguable that as judges are not elected, their role in law making should be limited as policy decisions are based on society and it is more appropriate for an elected body to do this.…

    • 1958 Words
    • 8 Pages
    Decent Essays
  • Decent Essays

    Personally, I am more convinced that public opinion should be considered, but should not have the right to interpret the Constitution. Because the citizens are somewhat arbitrary and vulnerable to others’ thoughts, sometimes they petition to redress,…

    • 753 Words
    • 4 Pages
    Decent Essays
  • Decent Essays

    Scalia goes on to protest that the system of separation of powers that we have abided by in the past has protected us from indefinite imprisonment by the President, and to go against that would stop us from this protection. Again, he is attempting to showcase how reinterpreting constitutional text can have a harmful impact on our…

    • 2172 Words
    • 9 Pages
    Decent Essays
  • Decent Essays

    Also, striking down or disregarding precedents can be done as an act of judicial activism. Or, to exercise judicial activism the court may reframe the constitution creatively. To detect judicial activism, one should look for the courts to reinterpret the constitution, oust some legislation that they deem unconstitutional, or ending certain precedents by disregarding their existence. Judicial restraint,…

    • 932 Words
    • 4 Pages
    Decent Essays
  • Decent Essays

    The Substantive Due Process Clause keeps the government from violating certain fundamental constitutional rights of individuals or parties. The Supreme court relied on the Substantive Due Process clause to overturn the previous courts ruling and argued that the ruling violated the S. Due Process Clause, as opposed to the Equal Protections Clause. However, Justice Sandra Day O ' Connor argued in favor of the Equal Protections Clause to overturn the state laws against sodomy. The Court recognized that the privacy rights of consenting adults cannot be violated as this violates the Constitution. You would first file a complaint with the court and deliver a copy to the defendant.…

    • 972 Words
    • 4 Pages
    Decent Essays