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. Others include US v. Kinder where our congress passed legislation that would require a minimum sentence for persons caught distributing more than 10 grams of cocaine. Judge Leval used a weighing method suggested by the sentencing commission rather than the method required by congress. The different method used did not trigger the mandatory sentence whereas the congressional method would have. Miranda v. Arizona is a very important activist decision that required police to inform criminal suspects of their rights before they could be interrogated. These rights include: the right to remain silent, that anything you say can and will be used against you in a court of law, you have a right to an attorney, if you cannot afford an attorney one will be appointed to you be the court. In this case the Fifth Amendment's right that a person may not be forced to incriminate one's self was interpreted in an activist way as meaning that one must be aware of this right before on is interrogated by the police. Prior to this ruling it was common practice to force and coerce confessions from criminal suspects who did not know they had the right not to incriminate themselves. 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.
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.
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.
One of the Judicial Branch’s many powers is the power of judicial review. Judicial review allows the Supreme Court to decide whether or not the other branches of governments’ actions are constitutional or not. This power is very important because it is usually the last hope of justice for many cases. This also allows the court to overturn lower courts’ rulings. Cases like Miranda v. Arizona gave Miranda justice for having his rules as a citizen violated. The court evalutes whether any law was broken then makes their ruling. Also, the Weeks v. United States case had to be reviewed by the court because unlawful searches and siezures were conducted by officers. One of the most famous cases involving judicial review was the Plessey v. Ferguson
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.
Facts: The petitioner Miranda V. Arizona, 384 U.S. 436 (1966) was taken into police custody on March 13, 1963. Miranda was taken from his home because he was accused of raping and kidnapping a young woman. The petitioner Miranda 384 U.S. 436 (1966) was the interrogated none stop for two hours by two different officers who failed to mention to him that a right to an attorney at law. He did not have to confess to anything. The officers at hand admitted to knowing they did not read him his rights but even still Miranda 384 U.S. 436 (1966) was found guilty because he still signed a paper saying he had confessed to the crime at hand. The case went all the way to the Supreme Court and the lower courts decided that he still confessed which was good enough for them and even though his rights were not read, He technically never asked for an attorney.
“We live in the greatest nation on Planet Earth, but it is becoming more and more apparent that in order to keep it, the people must do something to stop the federal courts that are daily setting themselves above the law and dictating to us how we should live, and what we should think” (Sutherland M. et al p. 9, 2007) Those are the beginning words of the preface to the book Judicial Tyranny: The New Kings of America. The work expounds upon the idea that there is something fundamentally wrong with our country’s judicial system, especially when it comes to the Supreme Court. The main idea behind the book is that an unelected judicial branch has taken upon itself new powers and is legislating from the court bench without regard to the general consent of the people and our Constitutional process. The entire book comes from very Christian world vi...
In the early years of the Constitution the legislative and executive branches held the power to establish and enforce any laws. This was prevalent up until the Marbury v. Madison case in 1803. John Marshall, as the Chief Justice during the case, declared that the Judicial Act of 1801, appointing numerous federalist “midnight judges” to judicial positions in the government, was unconstitutional. By overruling a law passed by Congress itself, Marshall was able to prove the Supreme Court as a center of power that can even have precedence over Congress, the President, and all other courts if it is necessary to determine constitutionality. Also known as Judicial Review, this power was the base on which John Marshall build up the Supreme Court to be respected and equal to the other branches. The power of the Supreme Court and federal law was continued into the next major case, Fletcher v. Peck. When Georgia wanted the land they gave to the Yazoo Company back after elections, their government brought it to court. John Marshall and the Supreme Court declared that land grant contracts cannot be repealed and made contracts “sacred”. Marshall utilized the power of the Supreme Court to overrule the decision made by Georgia. The establishment of Judicial Review is prevalent in the outcome of Fletcher v. Peck in that the federal judiciary
Madison established the principle of judicial review.1 In that decision, Chief Justice John Marshall stated: “It is emphatically the province and duty of the judicial department to say what the law is.”2 Mark Levin in The Liberty Amendments (2013) noted the Marbury v. Madison ruling modified and augmented SCOTUS’ limited jurisdiction to arbitrate civil and criminal disputes into judicial oligarchy with few institutional limits on its power.3 Since that decision, the notion of judicial review asserts that SCOTUS can declare congressional acts, presidential decisions, and state statues unconstitutional has maneuvered into judicial supremacy.4 Some examples are the Patient Protection and Affordable Care Act (Obamacare), same sex marriage (Obergefell v. Hodges), and SCOTUS in Kelo v. City of New London interpreted the Takings Clause to allow government to seize citizens’ homes, transferring the property to a private corporation because it could pay more
This case established the power of judicial review in the U.S. Supreme Court. This power was later extended to all Federal Courts. This empowered Federal Courts to decide legal issues raised by state constitutions and common-law decisions that may violate the Constitution. They are to review laws that are enacted by The President and Congress, identify and invalidate those that violate the Constitution of the United States.
In 1966, the Supreme Court of the United States ruled in the landmark case of Miranda v Arizona and declared that, whenever a person is arrested by the police should be informed prior to questioning the right under the Fifth Amendment (" the Fifth Amendment ") not to make statements that might incriminate himself.
In 1966, the U.S. Supreme court case Miranda v. Arizona ruled that those arrested for a crime must be issued certain rights by the police. The requirement given by a Miranda warning fulfill a citizen's rights and prevents manipulation by police. Miranda rights, however, contain massive loopholes that can be used to the prisoner's advantage and allow dangerous men or women to go free. Miranda rights, in sum, are necessary in protecting the rights of the people, but are not immune to the legal gaps they contain.
Judicial activism is the view that the Supreme Court should be an active and creative partner with the legislative and executive branches in shaping government policy (Wasserman American Politics 138). The believers of this philosophical view of how our judicial branch should be suggest that the Supreme Court more active and participate in molding the policies of American society. It can be argued that during the end of the Civil War and the "Separate but Equal" era, in cases such as the Brown v. Board of Education, Baker v. Carr, Missouri ex. Rel. Gaines v. Canada, and Sweatt v. Painter. The more recent, Bush v. Gore case is a fine example of judicial activism.
Judicial activism and judicial restraint are entirely different systems. Judicial activism is the perception of the Constitution to advise modern values. Judicial activism has a considerable part in devising social policies on problems like protecting the rights of an individual, civil rights, and when there is unfairness in politics. The purpose of judicial activism is to create political adjustments when it is needed in specific situations. If judicial activism is used, it has power to overrule certain judgments or acts of Congress. This has been interpreted by some to negatively impact other branches of government. Some believe that this damages the rule of law and democracy. In judicial restraint, the court should uphold all acts of the
Miranda v. Arizona is a case that revolutionized the rights of an accused while in custody and interrogation. The Supreme court leaders based the rights of Mr. Miranda by the fifth amendment of the United States Constitution. The fifth amendment has been interpreted though the decision of supreme court rulings into the right to remain silent in an interrogation in order to prevent the accused to testify against himself. This amendment also protects any person from double jeopardy from the same crime, gives him or her a grand jury, and it requires for due process of law to come in effect in case a citizen is denied him or her from their right of life, liberty, or property.