Essay On Judicial Activism. Words 5 Pages. Show More. In , the framers of the United States Constitution effectively separated the federal powers of the United States government into three separate but equal branches. These branches, the Legislative Branch, the Executive Branch, and the Judicial Branch, were all given specific powers that were outlined in their respective Constitutional May 07, · This is an essay on “Judicial Activism” for CSS, PMS, and Judiciary examination. Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint Judicial activism can in general terms be defined as judge legislating on the bench. Judicial activism is a situation where the presiding judge or jury issues a judgment on a case based on his or her political or personal thoughts. The judgment may also be based on pressures that emanate outside the constitution
Essay On Judicial Activism - Words | Cram
Judicial activism is too often simply a criticism made against a judge who exercises the power of judicial review to strike down a democratically enacted law on constitutional grounds.
Judicial activism means more than just simply invalidating a democratically enacted law, just as judicial restraint means more than simply upholding one. Supreme Court, during which the court struck down legislation by interpreting the Constitution to expand the scope of individual rights in such areas as privacy essays judicial activism criminal procedure. However, as the political science literature persuasively shows, conservative justices also seek to strike down legislation as unconstitutional.
Political scientists such as Jeffrey Segal and Harold Spaeth have shown that justices often invalidate laws and policies on the basis of ideological preference. So, whereas a liberal judge may be more likely to invalidate laws that infringe essays judicial activism or expand executive power, the conservative counterpart may be more likely to do so when laws infringe property or benefit racial minorities.
Judges invariably invalidate legislation, acting in a counter majoritarian fashion. That is the role of a judge in a constitutional system. Though the empirical literature is instructive in highlighting the way in which all justices—conservative and liberal—seek to strike down laws, it does not capture the normative sting of accusing a judge of judicial activism. Equating activism simply with the frequency or likelihood with which a court strikes down laws is insufficient.
After all, there is a connotation of illegitimacy about judicial activism. This distinction defines judicial activism as the perception that a court has engaged essays judicial activism higher lawmaking. This definition has two parts, essays judicial activism. First, in the U. Second, this distinction can be connected to the perception that a court has gone beyond merely interpreting a constitution. This distinction posits two levels of democratic lawmaking.
The Constitution, essays judicial activism, including its amendments, represents higher lawmaking. They engage in constitutional decision making, not just legislative decision making. Statutes, laws, policies, executive orders, and the like are instances of lower lawmaking.
After all, consider that the process for amending. the U. Constitution is far more onerous than simply passing a law. Amending, for instance, requires ratification by three-quarter of the states, essays judicial activism. Higher lawmaking, essays judicial activism, then, is substantively more democratic than a simple law or statute. The role for the court is to preserve higher lawmaking moments essays judicial activism lower ones by invalidating laws that conflict with the Constitution, essays judicial activism.
This is a separate issue from whether other branches may perform this preservationist role. These would not be instances of judicial activism.
Rather, they represent the dualist legal structure of a written constitution in which the court thwarts current majority interests that conflict with the higher democratic interests of the Constitution. Judicial activism is thus the perception that the court has engaged in higher lawmaking; it has gone beyond interpretation. By co-opting the constitutional democratic process, and in particular its amendment procedures, the court goes beyond its role as merely the preserver of higher lawmaking.
Rather than seeking to uphold the higher law against its lower counterpart, the court improperly makes higher law. This explains why judicial activism is widely viewed as illegitimate. It does not allow the relevant democratic polity to deliberate, debate, and ultimately decide constitutional issues, essays judicial activism. Sanford Levinson proposes a useful typology for appreciating the bounds of interpretation.
He posits a sliding scale of constitutional change from interpretation, to amendment, to revision, and to revolution. Judicial activism is the perception that the court has genuinely changed the document. If one accepts this framework, the perception that the court has engaged in higher lawmaking still often hinges on what theory of interpretation an individual adopts.
Crudely put, the two opposing theories are static and dynamic ones. The static conception, often associated with originals, contends that constitutional language must be understood as it was written.
Its dynamic essays judicial activism contends that constitutional language must be interpreted in a way that expands or informs liberty. A judge who deploys a dynamic theory of interpretation may interpret equal protection to strike down legislation that limits marriage to opposite sex couples or may interpret constitutional language to expand rights; this can be seen by the static camp as judicial activism.
However, by insisting on the original language or meaning of the text to strike down a law relevant to a situation never envisioned by the framers of a constitution or its amendments, essays judicial activism, originality can be accused also of judicial essays judicial activism by the dynamic camp.
Thus, the charge of judicial activism goes beyond any particular theory of interpretation: conservative or liberal. It rests on the perception that the court has exceeded its constitutional role by engaging in higher lawmaking rather than simply upholding it, essays judicial activism. This example Judicial Activism Essay is published for educational and informational purposes only, essays judicial activism. If you need a custom essay or research paper on this topic please use our writing services.
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Essay On Judicial Activism. Words 5 Pages. Show More. In , the framers of the United States Constitution effectively separated the federal powers of the United States government into three separate but equal branches. These branches, the Legislative Branch, the Executive Branch, and the Judicial Branch, were all given specific powers that were outlined in their respective Constitutional Judicial activism is “the doctrine that the courts should develop new legal principles when judges see a compelling need, even if this action places them in conflict with precedent or the policy decisions of elected officials” (Patterson, ) May 07, · This is an essay on “Judicial Activism” for CSS, PMS, and Judiciary examination. Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint
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