What is the debate between judicial restraint and judicial activism?

Judicial Restraint vs. Judicial Activism The role of the judiciary branch has been up for debate for centuries. This is mostly due to no specific mention of the judiciary's exact task in the Constitution, except the checks and balances and separation of powers left behind by the Founding Fathers Another factor in the debate is how the Constitution is interpreted. The method of interpretation is highly subjective and leads to further arguments on the role and power of the judicial branch One last factor is the personal ideology of the judges.

Personal views can affect a judge's judgment significantly to the point of questioning the judge's basis for decision-making There are six main methods of interpreting the Constitution. One is textualism, or similarly, strict constructionalism. This means solely the text is referred to For example: "Congress shall make no law… abridging freedom of speech" means exactly "no law."

However, it has the drawback that not exactly everything is stated in the Constitution Another similar method of interpretation is contextualism, which is attempting to derive the meaning from the text. Its main drawback, however, is subjectivity. "Freedom of speech" can be interpreted in over a hundred different ways.Is treason protected?

Is flag-burning protected? Public school prayer? These kinds of arguments have all been hot topics of debate Two other methods are originalism and structuralism.

Originalism attempts to discover the original intent of the framers while structuralism attempts to refer to the structure of government (checks and balances, separation of powers, etc. ). However, both methods are highly subjective. It is difficult to determine the framers' original intent when they purposely left the Constitution vague and ambiguous.

It is difficult to base decisions on structuralism without hard concrete proof like textualism and contextualism Two final methods are doctrinalism and developmentalism. Doctrinalism is the basing of decisions on previous case precedents or stare decisis. This is a standard approach of the judicial system For example Plessy v.

Ferguson held against many challenges until 1954's Brown v. Board of Education decision. Developmentalism is the add-on to doctrinalism in the sense that historical events and political culture are included for interpretation.

However, both methods are negative in the sense that they both detract attention from the Constitution There have been literally hundreds of landmark cases, but only a handful that have been brought up in the judicial restraint-activism debate. Judges have been noticeably making use of contextualism until the progressivist era For example: Plessy v. Ferguson was passed on the basis that the Constitution did not mention or intend that blacks have the same citizenship rights as whites and that segregation was unconstitutional.

The ruling was not overturned until Brown v. Board of Education, which has been touted because critics say that the judges "overstepped their bounds" or became too activist in their ruling There are many cases where critics have argued that the judges and jurors were too activist in their decision, and possibly too self-centered on their personal views. Some examples include Roe v.

Wade concerning abortion. The Supreme court ruled that abortion must be legal to protect the woman's health and privacy. The court ruled that it was unconstitutional for the government or anyone else to intervene in another person's personal affairs.

In the Court's opinion, nobody could tell a woman that she could or could not have a child.

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