Judicial Philosophies Theories of Constitutional Interpretation Judicial Restraint or Judicial Activism

Judicial Restraint  Constitution gives law and policy-making authority to the President and Congress  AIII gives the courts Judicial Power only  The power to interpret is the power to change - leave it to the people  Constitution is a permanent document  Lists ways to add or detract - Article V  Judicial Review is a usurpation of power  Judges should make rulings based upon the Constitution, laws and or treaties only

 Judges should not impose their personal notions of what is desirable  Constitutional adjudication - correctly reading the Constitution in a straightforward manner  If the wording of the Constitution is ambiguous  courts must take the perspective of the Founding Fathers  determine the intent behind the language.

 Strict construction of the Constitution  Judicial review = Judicial Policy-Making  Supreme Court must take the Constitution as they find it  It is not their job to rewrite it  A Constitution of limited powers  Intent of the Framers - what did they have in mind  Amendment passed today - expect future courts to ask what was intended

 Effects of Judicial Restraint:  Dred Scott  Upheld property rights over individual rights  Plessy v Ferguson  Separate but equal upheld equal protection clause 14th amendment  Hammer v Dagenhart  Found law that prohibited interstate commerce of goods made by minors illegal - production was not commerce therefore outside of Federal government control

 Marsh v Chambers  Prayers by tax-supported legislative chaplains could be traced to the First Continental Congress and to the First Congress. As a consequence, the chaplaincy practice had become "part of the fabric of our society." In such circumstances, an invocation for Divine guidance is not an establishment of religion.  Judges who practice Judicial Restraint  Justice Hugo Black  Justice Antonin Scalia  Justice Clarence Thomas

Judicial Activism  Loose construction of the Constitution:  Federalist # 78  Judicial review is a curb on legislature’s encroachments upon individual rights  Founding Fathers could not foresee today’s society. How can you apply the standards of 1789 to the present?  Judicial Activism allows the Constitution Flexibility, Durability

 Constitution is silent about many rights; Loose Construction guaranteed these rights:  Innocent until proven guilty  Coffin v. United States (1895), established the presumption of innocence of persons accused of crimes.  Right to privacy  4th, which guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures; 1,3,9  Bill of Rights applied to the states  Incorporation of rights using due process clause 14th

 Meaning of Constitution words difficult to pin down - “unreasonable search”, “due process”, “speech”  Principles behind the words  9th Amendment invites expansion of freedoms that are uniquely our heritage  What the Constitution does not say must also be interpreted, understood and applied  Tandy “inferior class of beings” - not his opinion but a conclusion dictated by the language of the Constitution and obvious intent of Framers  Constitution lacks certainty, automatic application

 Effects of Judicial Activism:  Brown v Education  Segregation violates the equal protection clause  Baker v Carr  Ruled that SC can intervene regarding reapportionment equal protection - 14th  Gideon v Wainwright  Right to counsel even if you cannot afford one. 6th  Roe v Wade  Woman’s right to choose to terminate a pregnancy; privacy 9th

Questions to Ponder  If simply reading the Constitution the right way - only qualification for job is literacy?  Why only Congress prohibited in 1st Amendment? OK for President?  Dec of Indep “all men created equal” Constitution “slave trade and 3/5’s compromise” - what was the intent? Was there a single purpose?

 Supreme Court - include justices with different approaches to the Constitution?  Value of dissenters?  Supreme Court - Judicial Gap filler or binding as written?  What are appropriate sources of authority to guide interpretation of the Constitution?  What relative weight should be assigned to the various appropriate sources?