Should there be judicial activism?

Anonymous asked this question on 4/11/2000:

Should the Supreme Court be Judicially Activist or Judicially self-restrained in its application of the constitution?

JesseGordon gave this response on 4/11/2000:

I'm all for judicial activism. I think that justices should decide issues using their subjective judgement, within their interpretation of the Constitution in their times.

If we extend the "self-restraint" argument to its logical conclusion, we would hardly need a Supreme Court at all -- a computer could apply the Constitution to each case and determine the answer that best fits. Such "objectivity" is never really objective -- it's equally subjective as my version, but pretends to be objective to hide its bias. Let the justices express their subjective views -- they always have the opportunity to fully explain themselves anyway (when they make a decision, there are long essays accompanying them, unlike with Senate votes, which are just Yea or Nay).

"Self-restraint" in the current political environment means the same thing as a conservative interpretation, especially on the issues of abortion and gun control. On both those issues, I believe the Constitution is vague (intentionally so on gun issues, leaving the details to Congress; unintentionally so on abortion, because the issue didn't exist when the Constitution was written). Vagueness implies that the justices must interpret, and hence be "activist", rather than "strict constitutionalists."

Anonymous asked this question on 3/28/2000:

What is "judicial review"? Where did the power come from? What sorts of limits are there on this power? How does it serve as an additional checks and balance? Does judicial review help or hinder democratic government?

budgetanalyst gave this response on 3/28/2000:

Judicial review is when the courts take a look at what has been done by an executive or legislative body, to make sure that it does not violate the laws and the Constitution. If the actions violate the laws or the Constitution, they overturn the actions. This power comes from the Constitution and legal precedents.

Judicial review helps democracy. It is the last resort for those who have been unjustly harmed. It keeps the legislature and the executive from doing things together that are not legal or just, although they may be popular. This is the reason why Federal judges have life tenure - they are there for the duration, and they cannot be removed except for malfeasance; they do not have to worry about their popularity.

Anonymous asked this question on 7/28/2000:

Explain Judicial review and how it was established.

stevehaddock gave this response on 7/30/2000:

Judicial review was invented by the Supreme Court in the early 1800's. The key case is Marbury v. Madison. Ostensibly, this was a case regarding a judicial appointment that didn't come through. It turned into the first use of the word "unconstitutional"

Since Marbury, it has generally been held that final and binding interpretation of a nation's constitution is the job of the judiciary, not the executive or the legislature. Moreover, it is generally conceded that when laws and the constitution conflict, it is the constitution that prevails.

Judicial review has actually been used very few times since its invention. After Marbury, the Supreme Court did not rule another federal statute unconstitutional until "Dred Scott" in 1857 when it struck down the Missouri Compromise (which stated that all territories north of Missouri were free and all those south of Missouri were slave). Unfortunately, the ruling effectively prevented the enforcement of Northern anti-slavery statutes, throwing the fate of about 50,000 escaped slaves living in the north into question.

It has been used more often in the 20th century, but again, not as often as one might think. Whether you think judicial review is appropriate is often determined not by the composition of the court, but by the prevailing politics of the critic. In the 1930's the Supreme Court struck down federal statutes forming the "New Deal". By the 1950's they were striking down segregated school districts.

Judicial review is often felt to be the best cure for what has been termed "tyranny of the majority". For example, majority white populations starting in the 1880's started passing laws that effectively stripped blacks of the right to vote, serve on juries, or even obtain an education. Blacks obviously didn't have the numbers to reverse these laws, but just as obviously, these laws violated the provisions of the 14th amendment which were designed to prevent these abuses. When the federal government took no action, these people turned to the courts, as have several other minority groups like the Jehovah's Witnesses.

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