Judicial Restraint/Activism

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. This document is over two hundred years old and still very relevant to today's society. In my opinion, the court needs to find a fine line between activism and restraint or intentionalism as Justice Bork refers to it. Even the Constitution, the result of many debates and compromises, was constructed with aspects that were very clear and those that were very ambiguous.

Brennan said that the "genius of the Constitution rests not in any static meaning it might have had in a world dead and gone, but in the adaptability of its great principles to cope with current problems and current needs". In Korematsu v. U.S., the court held that the relocation of Japanese Americans was constitutional. At the time, the court said that the security interests of the nation warranted the actions of the Military Commander. Justice Murphy disagreed with the majority in Korematsu. He said that the "exclusion" of the Japanese Americans "on a plea of military necessity in the absence of martial law ought not be approved. Such exclusion goes over the brink of constitutional power…". That is how that case is perceived today. A majority decided what was best for society at the time.

In B...

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..., therefore, our contemplation cannot be only of what has been, but of what may be.

If the Constitution was meant to be a document with supreme finality, the original framers would not have included provisions for change. If this blueprint of our free government is expected to survive the ultimate test, the test of time, it must be open to interpretation. And part of that interpretative process must include events relevant to current times as well as the historical events that led to the formation of the Constitution. In my opinion, strict adherence to one method of interpretation leads to closed minded opinions. Like any decision, many factors must be considered before ultimately deciding the outcome. Similarly, the court must look at the intent of the authors, the past history that led up to the event, and also the best interests of society as a whole.