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Judicial Activism And Restraint
Judicial restraint vs. judicial activism
Judicial activism v judicial restraint
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Each judge has the option to choose which of the two philosophies they should use when judging a case. Judges use either judicial restraint or judicial activism as a method of judgement. Judicial restraint is when a judge does not believe that their opinion is relevant when judging a case, so they would use a past case as a guide to help make current judgement. Judicial activism is when a judge uses their own opinion which is based from modern ways. These two philosophies are the ways they differentiate judges in the court system.
Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. These judges are limiting their own power because they are not using it to its advantage, instead they are using past Judges personal interpretations on the constitution . Were as creating their own interpretations to help defend a case. Example, if a judge were to be giv...
The strategic model acknowledges that judges seek to achieve policy goals, but it also acknowledges that they are subject to certain restrictions in doing so. Since they cannot act accordingly to preference, they must act strategically to achieve their goals given by the restrictions. It argues that like politicians, justices make their decisions based off other’s decisions or make their decisions while trying to determine how another person will react from it. This decision style says justices would base their decisions on the influence of other justices.
In the case of U.S. v Jones, the judicial branch had to address the questionable topic of whether or not the Fourth Amendment was violated (). Since this case was not black and white and did bring up many questions as to what was constitutional, the judges had to use judicial review. Judicial review is the power that allows judges to interpret the meaning of laws (Class, March 13). Once a law is understood a certain way, the people must follow it (Class, __). The U.S. v Jones case deals with the Bill of Rights (United, 1). This is due to the circumstance that the Fourth Amendment is included in the Bill of Rights document stating that “searches and seizures” cannot be done without a warrant (Class,___). The case of U.S. v Jones was about the violation of Jones’s Fourth Amendment when a GPS device was placed on his jeep without his consent because he was suspected of drug possession (United, 1). Since judges have the power to informally amend the Constitution using judicial review (Class, ___), they must take into consideration many contributing elements when making a decision.
In Federalist 78, Alexander Hamilton argued that the Judicial Branch is the “least dangerous to the political rights of the Constitution" and that it is “beyond comparison the weakest of the three departments of power” since it has “neither force nor will, but merely judgment.” [*] While it is true that Hamilton wrote the Federalist Papers as propaganda to garner support for the Constitution by convincing New Yorkers that it would not take away their rights and liberties, it is also true that Article III of the Constitution was deliberately vague about the powers of the Judicial Branch to allow future generations to decide what exactly those powers should be. In the 1803 case of Marbury v. Madison, the Supreme Court, led by Chief Justice John Marshall, established the Court’s power of judicial review. However, as Jill Lepore, Harvard professor of American History, argued, “This was such an astonishing thing to do that the Court didn’t declare another federal law unconstitutional for fifty-four years” after declaring the Judicial Act of 1789 unconstitutional in Marbury v. Madison. [*Jill Lepore] Alexander Hamilton was incorrect in his assertion that the Judicial Branch is the least dangerous to political rights and the weakest of the three government branches because judicial review has made the Supreme Court more powerful than he had anticipated. From 1803 to today, the controversial practice of judicial activism in the Supreme Court has grown—as exemplified by the differing decisions in Minor v. Happersett and United States v. Virginia—which, in effect, has increased the power of the Supreme Court to boundaries beyond those that Alexander Hamilton stated in Federalist 78.
In Federalist no. 78 Hamilton explains the powers and duties of the judiciary department as developed in Article III of the Constitution. Article III of the Constitution is very vague on the structure of the federal courts. Hamilton had to convince Americans that the federal courts would not run amok. He presented that the federal courts would not have unlimited power but that they would play a vital role in the constitutional government. Hamilton limited judiciary power by defining it as a text-bound interpretative power. (R.B Bernstein) This essay was intended to endorse as well as interpret the Constitution.
When the rights of the American citizen are on the line than the judiciary should utilize the powers invested in them to protect and enforce what is constitutional. However, in times of controversy, where personal preference or aspects of religious or personal nature are at hand, the judiciary should exercise their power with finesse, thereby acting out judicial restraint. An example of such is in the case of Engel v. Vitale where Mr. Justice Black delivered the opinion of the court directing the School District’s principal to read a prayer at the commencement of each school day. In cases that do not regard whether an action is constitutional or not, the judiciary should suppress their power of judicial review.
Madison, declared the power of the courts to interpret the Constitution and affirmed the power of judicial review. The power of judicial review averted the judiciary branch of the inherent weakness and lack of equality in power among the three branches of government. The independence of the Supreme Court is paramount in protecting the civil liberties granted to citizens. The judicial power afforded by means of the doctrine of judicial review is not superior or above the other two branches of government. The Supreme Court’s duty is to nullify legislative acts contrary to the Constitution. Hamilton expounds the power of the courts in the Federalist Papers No. 78, “it only supposes that the power of the people is superior to both”, and judges should regulate their decisions by the fundamental laws, (Hamilton, 2008). The Supreme Court’s duty is to nullify legislative acts contrary to the
Strict constitution is a legal philosophy of judicial interpretation in which the original intent of the constitution holds that the Constitution means exactly what it says. Strict means limited government and mostly the governments are limited by the statues or formal written enactments. Statutes command or prohibit something, or declare policy that are laws made by legislative bodies and distinguished from case law which is decided by courts, and regulations issued by government agencies.
Whether a judge should be elected or appointed has been a topic for discussion since the creation of a judicial system. Depending on what side of the decision one may be on, there are some challenges that arise from each side. If a judge is elected, will he be judicious in his decision based on the law or based on his constituents? If the judge is appointed, will he be subject to the authority that appointed him, thereby slanting his decision to keep favor of the executive or legislator that appointed him? Mandatory retirement is also a question that brings about challenges. How old is too old? When does a judge become ineffective based on their age?
Today, China is ranked as the nation with the largest population in the world. It is also a fact that China is amongst one of the countries whose economy is growing at a very rapid rate. It is quite imperative to note that capitalism has been the dominant in this nation, which enables it to not only strengthen, but also capture great regional as well as global influence. Even though China has been rediscovering its ancient tradition elements whilst repackaging them to be in line with modernity, it is evident that the visions embraced are very different from the ones in the West. The Celebrated Cases of Judge Dee is a perfect publication that sheds light to the reader on the various social, political and moral issues that existed in China decades ago and the ways of resolving them. Comparing the legal issues in China decades ago, a thin line can be drawn. This is inherently because nothing much has changed in terms social, political and moral perspectives. The celebrated cases of Judge Dee borrow a lot from the Chinese culture, which defines the standard morals and values for its people. Consequently, the legal system in this nation appears to rely wholly on the defined moral standards in reprimanding wrongdoers.
Judicial restraint is loosely defined as decisions or judgements that take a narrow interpretation of the constitution. It reflects a respect for the law as it has been enacted by the Legislature. Rather than creating new laws from broad interpretations. For myself, it is somewhat harder to distinguish what judicial restraint is. An example of judicial restraint would be the 1996 case of Bowers v. Hardwick. Hardwick was charged with violating the Georgia statute of sodomy by committing a sexual act with another male in the bedroom of his home.
Their long term in office liberates judges from partisan burdens and inhibits attacks on judicial power by the executive and legislative branch. Independence gives the judicial branch the ability to guard the Constitution and the rights of the people against the legislature. That means that he believes that the judicial branch is less likely to abuse a person's as compared to the executive or legislative. He felt that judges should have independence from the sanction of the executive, legislature, and the individuals so they can satisfy the judicial qualities defined in the Constitution. The U.S. Constitution offers that federal judges are selected to life term thru good behavior, so the courts can remain independent from the other two
The book of Judges is the sequel to Joshua. It is the seventh book of the Old Testament. It recounts stories and events from the death of the hebrew leader and prophet Joshua to the birth of the hebrew Samuel. That is roughly, from the end of the Israelite conquest of Canan in the 13th Century B.C to the begining of the monarchy in the 11 th century B.C. It tells about the hebrews from Joshua’s Death to the time of Samuel. It was written in about 550 BC, on tablets named the Ras Shamra tablets. The Ras Shamra tablets where later discovered in the early 20th Century, even though the stories and acountings of the judges where already known and written. The book of Judges belongs to a specific historical tradition which is called the Deuteronomic history. The author of the book of Judges, was in exile in Babylonia. While in exile he was deeply concerned with foreign domination. So he wrote many of his stories on the migration of the tribe of Dan to the North and the sins of the Benjamites. The author emphasized that Israel was being influenced by foreign powers and the loss of freedom and prosperity. Recurring throughout the book is the stereotyped formula: "The people of Israel did what was evil in the sight of the lord." Then after each period or subjection the author introduces another formula: " But when the people of Israel cried the Lord, the Lord raised up a deliverer for the people. Through-out the book, the book of judges tells about prophets, rulers and influencial people such as: Othniel, Ehud, Shamgar, Deborah, Gideon, Tilian and Samson. There are also many more minor people.
Introduction This submission will discuss the problems created by the Doctrine of Judicial Precedent and will attempt to find solutions to them. Whereas, English Law has formed over some 900 years it was not until the middle of the 19th Century that the modern Doctrine was ‘reaffirmed’. London Tramways Co. Ltd V London County Council (1898). Law is open to interpretation, all decisions made since the birth of the English Legal System, have had some form of impact whether it is beneficial or not The term ‘Judicial Precedent’ has at least two meanings, one of which is the process where Judges will follow the decisions of previously decided cases, the other is what is known as an ‘Original Precedent’ that is a case that creates and applies a new rule. Precedents are to be found in Law Reports and are divided up into ‘Binding’ and ‘Persuasive’.
INTRODUCTION: Parliament, the supreme law-making body, has unrestricted legislative power, and the laws it passes cannot be set aside by the courts. The role of judges, in relation to laws enacted by Parliament, is to interpret and apply them, rather than to pass judgment on whether they are good or bad laws. However, evidence has shown that they have a tendency to deviate from their ‘real roles’ and instead formulate laws on their own terms. Thus, the real role of a judge in any legal system continues to be a phenomenon questioned by many.
The term ‘judicial activism’ means a court decision suspected of being built or based on individual, political or private reflections instead of the actual law. In America, judicial activism is considered either as conventional or as plentiful. The original retro of American legitimate antiquity was categorized by traditional justice involvement where the Central Supreme Law court was reluctant to allow the conditions or the assembly to permit lawmaking that would control social or financial businesses. Judges should not read between the lines or add their own experiences when it comes to determining what the verdict will be. The United States Constitution is direct, with plainly written sentences and all judges should follow those guidelines.