Essay about Criminal Restraint Vs. Judicial Activism

Essay about Criminal Restraint Vs. Judicial Activism

Length: 1439 words (4.1 double-spaced pages)

Rating: Strong Essays

Open Document

Essay Preview

When deciding on outcomes to a case all judges must adhere to the laws as outlined by the state; in the matter of the Supreme Court, the judges must ascribe the U.S. Constitution as their bases for law. When interrupting the Constitution under these conditions two views become distinctive; those who view the constitution as static and unchanging are deemed originalist, and those who view it as a fluid piece of legislative that must be interpreted with the times as non- originalist. These views have conflicted in many cases, most notably the Obergefell v. Hodges Supreme Court case. It is then that these two camps will view the case in light of the constitution under different perspectives.
Judicial Views
Supreme Court judges must use their expertise as well as their personal stance on deciding outcomes of cases. These stances are largely different in respect to how the constitution is interrupted.
“Debates over proper constitutional interpretation have travelled under different headings: strict vs. loose construction; judicial restraint vs. judicial activism; interpretivist vs non-interpretivist… originalist against opponents – captioned, often interchangeably, ‘non-originalist’ or ‘living constitutionalists” (Berman, 2011, p. 408).
What this centers around is that there can be, nearly put, only two views in which induvial view the constitution. Those who support the case that it is non-changing and that judges should maintain its original meaning as close as possible without change are termed originalist. On the other side of the spectrum exist those who view the constitution as a fluid piece of legislature and that judges should use the majority opinion of the people as well as their skills to interpret the consti...

... middle of paper ...

...they feel their government is representing them accurately.
The dangers presented is that originalist will fall into stagnation and can possibly cause social upheaval where the majority no longer feel their government is supporting them accurately. The dangers of non-originalist is that the opinions of judges could go too far and as such the constitution could become blurred or even to a large degree unrecognizable and then cannot be applied or respected accurately or efficiently.
Originalist view the constitution in alight that reflects a static view of the document to some extent. Where non- originalist view the document in a light that allows change. As the Obergefell case demonstrated, the constitution needs to be viewed in the light of the latter so as to allow judges the opportunities to shape the laws of the land in ways the public approves of.

Need Writing Help?

Get feedback on grammar, clarity, concision and logic instantly.

Check your paper »

Essay on Judicial Activism and Judicial Restraint

- Judicial Activism is the Supreme Court’s willingness to use its powers to make significant changes in public policy or creatively [re]interpret the texts of the constitution. Judicial Restraint is the Supreme Court’s willingness to limit the use and extent of its power avoid making significant changes in public policy. These two terms designate opposite approaches on how the judges interpret the constitution and public policy for different cases. For example, Miranda vs. Arizona, on March 13, 1963, Ernesto Miranda was arrested by the Phoenix Police Department for the conviction of kidnapping and rape of 18 year old girl, after hours of interrogation Miranda finally confessed to the rape char...   [tags: Supreme Court's power limitations]

Strong Essays
614 words (1.8 pages)

The Difference between Judicial Activism and Judicial Restraint Essay

- The Difference between Judicial Activism and Judicial Restraint Our American judiciary branch of the federal government has contributed and molded our American beliefs in this great nation. This branch of government is respected because of the code of conduct that the judges, no matter how conservative or liberal. The language of the court as well as the uniform of the cloaks that judges wear has most probably contributed towards this widespread respect. Throughout the history of the United States, I noticed a pattern of "cause and effect" that our judiciary branch had practiced....   [tags: Papers]

Strong Essays
641 words (1.8 pages)

Essay on Restraint and Activism

- Restraint and Activism Judicial activism is loosely defined as decisions or judgements handed down by judges that take a broad interpretation of the constitution. It is a decision that is more of a reflection of how the judge thinks the law should be interpreted rather than how the law has or was intended to be interpreted. There are many examples of judicial activism; examples include the opinions of Sandra Day O'Connor in the Lynch v. Donnelly and the Wallace v. Jaffree trials. Sandra Day argues for the changing of the First Amendment's ban on "establishment" of religion into a ban on "endorsement" of religion....   [tags: Papers]

Free Essays
379 words (1.1 pages)

Essay about Judicial Review of the Warren Court

- AP Government Term Paper In the 1920’s a heightened suspicion of communist activities on domestic American land arose, the Red Scare. Benjamin Gitlow, a prominent member of the Socialist party, was arrested and convicted on charges of violating the New York Criminal Anarchy Law of 1902 during these drastic times. What was his violation. The publication and circulation of the Left-Wing Manifesto, a mere pamphlet, in the United States was his infringement. He appealed the decision on the basis that it violated his First Amendment rights of freedom of speech and press and it was passed on to the United States Supreme Court....   [tags: Political Science Politics]

Free Essays
1556 words (4.4 pages)

Essay about Judicial Activism vs. Judicial Restraint

- Judicial Activism vs. Judicial Restraint Judicial activism and judicial restraint are two opposing philosophies when it comes to the Supreme Court justices' interpretations of the United States Constitution; justices appointed by the President to the Supreme Court serve for life,and thus whose decisions shape the lives of "We the people" for a long time to come. Marbury v. Madison, one of the first Supreme Court cases asserting the power of judicial review, is an effective argument for this power; however, it lacks direct textual basis for the decision....   [tags: Papers]

Strong Essays
468 words (1.3 pages)

Judicial Restraint/Activism Essay

- Judicial Restraint/Activism Justice William J. Brennan, Jr. said it the best in his speech to the Text & Teaching Symposium, "We current Justices read the Constitution in the only way that we can: as Twentieth Century Americans." Justice Brennan also called the Constitution a fundamentally public text and called for its use to resolve public issues. If that is true, then the document must be interpreted from today's perspective - Judicial Activism. However, using only that approach would be saying that the work of the original framers was mute....   [tags: Papers]

Strong Essays
903 words (2.6 pages)

Essay about Judicial Restraint Is The Best Idea For The Country

- The American Judicial system has proved to be more troublesome and controversial than the founding fathers would have imagined. The debate on whether judicial activism or judicial restraint is the best idea for the country to follow has been long living. Both judicial activism and judicial restraint are described as types of judicial review. While both can be beneficial, Judicial activism is clearly more important than the other. Judicial restraint is “The judicial philosophy whose adherents refuse to go beyond the text of the Constitution in interpreting its meaning.” In other words, judicial restraint is an idea that one should not interpret laws differently than what has been expressed in...   [tags: Supreme Court of the United States, Law]

Strong Essays
994 words (2.8 pages)

criminal justice Essay examples

- Tushnet's A Court Divided By R. Anastasia Tremaine - February, 2005 Tushnet's A Court Divided Tushnet (2005) takes an insightful look into the current Supreme Court and what it means for the future in his work entitled A Court Divided. Much has been discussed about the Court, particularly since the 2000 election ended up being referred to the judicial branch of government. Constitutional law has always been fascinating subject, as it broaches the areas of guaranteed legal protections....   [tags: essays research papers]

Strong Essays
1334 words (3.8 pages)

Judicial Activism Essay

- The nomination of a Supreme Court justice is an event of major significance in American politics. Not only does the court wield enormous judicial power, separate and independent from the executive and legislative branches, but vacancies within the court also occur infrequently. In fact, vacancies are so infrequent that they may only occur one or twice, if at all, during a sitting President’s tenure in office. The reason for the infrequency is that Article III of the Constitution states that all federal judges will hold office “during good Behavior”(Wagner 19), which essentially amounts to a lifetime appointment barring impeachment and an opportunity for the President to...   [tags: Supreme Court, American Politics]

Strong Essays
1463 words (4.2 pages)

Essay on Judicial Activism

- Judicial Activism: A Necessary Action Judicial activism is rarely needed, but when it is employed, it is only in the most dire of circumstances. It is the broad interpretation of the constitution of the United States by the Supreme Court. Some argue that this should not be done, but if it had not been, slavery would still exist in America. It is obvious that in some cases, it is necessary to expand civil rights beyond what the constitution explicitly states. This was the case in Brown v....   [tags: essays research papers]

Free Essays
1048 words (3 pages)