Judicial Activism vs. Judicial Restraint

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Judicial Activism vs. Judicial Restraint Judicial restraint is a doctrine which encourages the judiciary to adhere closely to the wording of the law, be mindful of precedent, and should defer to decisions made by legislatures. In other words, it is a doctrine that urges judges to refrain from incorporating their own philosophies or personal preferences into the law in order to avoid misconstruction of the law. This is based on the concept that judges are to apply the law rather than determine it. One example is Luther v. Borden (1849). In 1841, Rhode Island was still operating under a form of government established by a royal charter of 1663. A convention was held protesting the charter; a new constitution was drafted and a governor was even elected. The charter government declared martial law to shut down the rebellion. Martin Luther argued that the charter was not “a republican form of government” and all acts thus far are not binding. The question was whether or not the Court had the authority to declare which policy could be called the government of Rhode Island. The Court held that the federal courts did not have the authority nor is it the courts function to decide “political” matters; it is the responsibility of the President and Congress. Another example is how Chief Justice Roberts upheld the Constitutionality of ObamaCare. He contended that the health insurance mandate was lawful under Congress’ power to “lay and collect taxes.” Roberts said that “the text of a statute can sometimes have more than one possible meaning” and the “the government asks us to interpret the mandate as imposing a tax.” In contrast to Judicial restraint, Judicial activism is the idea that judges should actively interpret the Constitution and make policy decisions in new ways. They should develop new legal principles when they see a compelling need, even if it places them in
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