Describing Constitution Law Judicial Activism Through Two Phenomena

According to the text in Constitutional Law judicial activism is defined as describing two phenomena: a pattern by a judge of disrupting precedent in favor of his own conceptions and beliefs, and a pattern of using judicial decisions to engage in social emerging or policymaking. It has been associated with both political and legal liberalism. . A justice faces a dilemma when confronting precedent in which they disagree (Feldmeier, 2012). Precedents that have been relied upon to secure our individual rights should have no change with a significant jurisdiction.

The Supreme Court has stated â to overturn a constitutional decision is a rare and grave undertaking.

Although the doctrine of Stare Decisis applies with somewhat diminished fore in the constitutional cases⦠even in the ordinary constitutional cases, any departure demands special jurisdiction (Feldmeier, 2012). An activist judge is sometimes assumed of as a certain judge who may or may not indifference the precedent in the favor of the conceptions or beliefs in the regarding what specific law should be involved in the policymaking.

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Judicial activism can occasionally have a positive impact, although this impact can typically be better achieved by other methods. But truly is judicial activism more a good outcome or are more against the outcomes. There are many individual court cases that argue that judicial activism was either a good or bad decision of the ases.

In one of the many historical United States Supreme Court cases that have used judicial activism, Brown v. Board of Education, this debate was hard to reconcile the ruling with the Constitution, in spite of its positive impact.

Though, the Supreme Court unanimously ruled that segregated schools in the city were still unconstitutional because it was a violation of the due process clause of the Fifth Amendment. Although the impact was clearly desirable, the due process clause typically only applies to legal processes such as criminal trials, not to segregation. Also, the same result could have been achieved simply by an act of Congress, since they have control over the district's school system.

The suit called for the school district to reverse its policy of racial segregation. All the Topeka elementary schools were changed to neighborhood attendance centers in 1956; students were allowed to continue attending prior assigned schools at their option. The Warren Court came with a 9-0 decision which stated, in no uncertain terms that "separate facilities are inherently unequal". Itâs often been cited as an example of liberal judicial activism. Not only had Brow Brown not only overturned the precedent of Plessy v. Ferguson (1896).

This decision went on to say that segregation had no valid purpose, was imposed to give blacks lower status, and was therefore unconstitutional based on the Fourteenth Amendment which had declared "separate but equal facilities" constitutional, but also provided the legal foundation of the Civil Rights Movement of the 1960s.

There are other cases where people have argued that the judges have been too activist in their decisions and used too much of their personal views in deciding a case. An example of this would be Roe v. Wade, where abortion was the concerned cause. The Court ruled 7â002 that a right to privacy under the due process clause of the 14th Amendment extended to a woman's decision to have an abortion, but that right must be balanced against the state's two legitimate interests in regulating abortions: protecting prenatal life and protecting women's health the Supreme Court ruled that abortion must be legal to protect the womenâs health and privacy.

Roe was an unmarried pregnant woman who wished to terminate her pregnancy. So with that being the case, the judge eventually ruled that it was unconstitutional for the government or anyone else to intervene in someone elseâlls personal affairs or problems. Here were laws enacted prior to the 1970's banning abortion; however, abortion is legal if proceeding with the pregnancy is detrimental to the mother's health. (Puschak, 2013).

Texas law making it a crime to assist a woman to get an abortion violated her due process rights. I do not stand by this decision because a child deserves a life, a day of their own, and abortion is I believe unconstitutional. The right to privacy is a state not a federal issue, it is up to each state to decide, yet is doesnât use the word abortion in the constitution. This was more about a woman right to her own privacy to do whatever she decided.

Even though it's debatable about this concept, a female is old enough to make the responsibility of having a child and get pregnant then that lady should take the responsibility to have and care for it, not take its life. Abortion is wrong according to God and the bible it is written. I believe like most Christianâs life begins at conception. Life is precious and if your mom did not want to carry you till after birth you would be here. Well if you followed God before having sex you might not have these problems, but god still loves you and I before and after an abortion. God says in bible sin have consequences.

In Mapp v Ohio, I think this is activist because the Court had abused precedent and played legislator to create in state courts the right of a defendant to exclude evidence obtained illegally. Creating such a right allows the Court to circumvent the purposely strenuous process for amending the Constitution.

The Fourth Amendment protection against unreasonable search and seizure and the Fifth Amendment protection against self-incrimination under the exclusionary rule, providing further indication of judicial activism (in the Weeks case). In Mapp, the Warren Court held the Rule was supported entirely by the Fourth Amendment, resulting in a less creative and more straightforward constitutional interpretation. I believe that the determination of whether the decision in Mapp represented an instance of activism or restraint may rest on one's opinion about using the Fourteenth Amendment Due Process Clause to selectively incorporate the Bill of Rights to the States.

The states undoubtedly considered the decision judicial activism because the "exclusionary rule," preventing "evidence obtained by searches and seizures in violation of the Federal Constitution from being admitted in a criminal trial in a state court," interferes with the states' police powers. Under Chief Justice Vinson, the Supreme Court held that the Fourteenth Amendment didn't apply this aspect of the Fourth Amendment to the states in Wolf v. Colorado (1949). It's probably more reasonable to say the exclusionary rule, itself, which the Supreme Court developed in response to Weeks v. US, (1914), was an example of judicial activism because the rule was created by the Court, rather than the legislature. (Wolf v Colorado) (Weeks v US)

The Fourth and Fourteenth Amendment rights could have been vindicated without setting the criminal free because the constable blundered. Such remedies would include tort or civil rights actions for the constitutional injury, or even criminal prosecutions for officers who maliciously violate the Fourth Amendment. By imposing a remedy without firm constitutional basis, the Mapp decision allowed countless criminals to go free because of police mistakes.

Dred Scott was a classic case of judicial activism. With no constitutional warrant, the justices manufactured a right to hold property in slaves that the Constitution nowhere mentioned or could reasonably be read as implying. Of course, the Taney majority depicted their decision as a blow for constitutional rights and individual freedoms. They were protecting the minority (slaveholders) against the tyranny of a moralistic majority who would deprive them of their property rights.

The case was decided in 1857 and, in effect, declared that no black--free or slave--could claim United States citizenship. Slaves were viewed as property, and such had no individual right. Furthermore, the decision indicated that Congress could not prohibit slavery in United States territories. I believe that the decision was morally wrong and failed to recognize the rights of people to be free.

A state circuit court ruled in Scott's favor, but the Missouri Supreme Court later reversed the decision. Meanwhile, Scott had become legally regarded as the property of John F. A. Sanford of New York. Because Sanford did not live in Missouri, Scott's lawyers were able to transfer the case to a federal court. This court ruled against Scott, and his lawyers then took the case to the Supreme Court. By a majority of 7 to 2, the Supreme Court ruled that Scott could not bring a suit in a federal court.

Chief Justice Roger B. Taney, speaking for the majority, declared that Scott could not do so because blacks were not U.S. citizens. The court could have simply dismissed the case after ruling on Scott's citizenship. The court ruled that the Missouri Compromise, which had been repealed in 1854, was unconstitutional. Justice Taney argued that because slaves were property, Congress could not forbid slavery in the territories without violating a slave owner's constitutional right to own property.

Any case regarding policy changes in civil opinions were restrained and given the ruling of stare decisis. Under the leadership of Chief Justice John Marshall, however, we observed that the Supreme Court began to participate in its interpretation of the Constitution and making its ruling the â law of the land.â I strongly believe that these changes have made our country a better nation, but are judicial activism necessary? The case of Bush v. Gore, the Supreme Court, in my opinion, acted without much regards to the consensus of to the popularity to Al Gore.

The arguments for judicial activism are that it helps change civil policies promptly, but are these changes too hasty? Many people believe that judicial limitation hurts growth, both socially and economically. Changes or improvements towards the civil and criminal justice only come as a last minute change when so much damage has occurred to the precedent parties. I also believe that if the judicial branch, by staying away from politics, is in the rightful position to save the country from political embarrassment, such as the verdict of Bush v. Gore, when the United States could not even decide whom her leader would be.