2. What are the differences between the two? Basically, Judicial Activism means that judges use their own political and personal thoughts to influence/help rule on a legal matter. Judicial Restraint means that judges do not use their own political and personal thoughts to influence/help rule on a legal matter. 3.
Judicial Activism is a concept where judges should interpret laws loosely, using their power to promote their preferred social and political goals. This includes the willingness or tendency to overturn existing precedent, inject one’s views into decisions, issue broad rulings with wide implications, and strike down laws created by elected legislatures. The Supreme Court is considered very strong in the notion of Judicial Activism, and essentially sets precedents for future cases. Judicial restraint, on the other hand, is where legislators, not judges, make laws. Judges base their judicial decisions on the concept of stare decisis, which deals with the court’s obligation to honor previous judiciary decisions.
Question of Law: Do the limitations which the Due Process Clause of the Fourteenth Amendment impose on the conduct of criminal proceedings by the States? Holding: “The Due Process Clause empowers this Court to nullify any state law if its application ‘shocks the conscience,’ offends ‘a sense of justice’ or runs counter to the ‘decencies of conduct.’ ” Reasoning: “The Due Process Clause places upon this Court the duty of exercising a judgment upon interests of society pushing in opposite directions. In each case ‘due process of law’ requires an evaluation based on detached claims, on a judgment duly mindful of reconciling the needs both of continuity and of change in a progressive society” Concurring Opinion: Justice Black agreed with the majority but believed that the issue of graver concern is that there is a philosophy of natural law that
In short, Americans have exchanged the rule of law for the rule of judges. “Without any Constitutional mandate, judges have banned the public recognition of God, redefined marriage, undermined national sovereignty, released a flood of pornography, institutionalized feminist dogma, interfered with elections, and handicapped law enforcement” (Schlafly, 2004). Judicial Tyranny, the New Kings of America, by Mark Sutherland exposes the tyrannical behavior of judges. The book is written to address the general public particularly voters who can influence who is selected for available seats on the Supreme Court. The purpose of the book is to advise the American public on the ongoing struggle with the outwitting Judiciary.
It is also a means to find equality among the different members of society. In criticism of Realism, Artifactualism states the Realists are too individualistic of their analyses of law and are too sensitive in regards to the constitutive law. In regards to the multiple theories discussed in part III of the article entitled “Mapping Legal Theory” by Richard F. Devlin from the Alberta Law Review, I believe the Marxist theory holds the same semblance to Artifactualism in terms of its interpretation of law. Marxist’s hold a belief that society revolves around the production of goods and the quality of society is determined by the how the relations are between the two classes within the production system. These two classes are the proletariats, who are
Martin’s argument on how the Charter is antidemocratic has six main premises. Firstly, Martin supports his claim by making a point that judges, as they hold no accountability for what their judgments, can “overturn deliberate policy decisions made by the elected representatives of the people where those decisions do not accord with the way the judges interpret the Charter.” Thus, the Charter, according to Martin, is antidemocratic. Secondly, Martin discerns the differences between liberalism and democracy, creating operational definitions for each. He explains that liberalism “is about individual rights,” and is “about the ability of individuals to do as they please without interference from the state.” Therefore, according to Martin, Liberalism “makes protection of the autonomy of the individual more important than the promotion of the welfare of the
One issue with the composition of the Supreme Court is the power that justices have. This is due to the prevalence of judicial activism which is when judicial rulings are suspected of being based on personal or political considerations rather than existing law. An example of this would be “Brown vs Board of Education” where judges ruled the segregation of schools to be “unconstitutional”. This could be seen to be activist because it is a case of liberal judges using their power to push forward reform in the area of civil rights on account of their political philosophy. This is a key issue because an activist court causes controversy through its ability to make decisions based on their political ideologies rather than the constitution.
United States (1914) and Mapp v. Ohio (1961), the Supreme Court created the exclusionary rule, which generally operates to suppress - i.e. prevent the introduction at trial of - evidence obtained in violation of Constitutional rights. "Suppression of evidence, however, has always been [the court's] last resort, not [its] first impulse. The exclusionary rule generates substantial social costs, which sometimes include setting the guilty free and the dangerous at large. " In United States v. Leon, the Supreme Court clarified that the exclusionary rule "operates as a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved."
Prior to Iris Young’s “Global Challenges” issues were viewed from a perspective which she calls the Liability Model. The Liability Model is based on viewing situations from a traditional legal perspective. A widely accepted view was that the scope of obligations of justice was defined by membership in a common political community. In “The Law of Peoples” Rawls says that principles of justice as fairness mutually oblige member of distinct societies to one another, yet do not apply to the moral relationships among people between societies across the globe. Charles Bietz challenged this belief in his work”Political Theory and International Relations” by arguing that there exists an international society even in the absence of a comprehensive political constitution to regulate it (Young 162).
The politics of the common law (Gearey et al.) argues that statutory interpretation can perhaps be best understood as a judicial practice; and judicial practice can be seen as informed by pragmatism and an ‘engagement with the language of Act in question in its legal context.’ The concept of statutory interpretation being a process or a practice is inconsistent with the old idea of thinking in terms of ‘rules’ of statutory interpretation. This new concept can be traced back to Willis’s 1938 article ‘Statutory interpretation in a nutshell’. Willis phrased the process of interpretation in terms of the literal, golden and mischief rules. The judicial practice of statutory interpretation incorporates the constitutional position with an understanding of how certain ‘rules of interpretation’ can be rationally connected.