Judicial Activism and Judicial Restraint Objective 29h. By Stephanie Byrnes 4-22-08 Pd. 5. Objective. 29h- recognize the difference between judicial activism and judicial restraint. Judicial Activism.
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By Stephanie Byrnes
29h- recognize the difference between judicial activism and judicial restraint
when a court "finds" a "right of privacy" hidden in the "penumbras" and "emanations" of the Constitution, and later expands this "right of privacy" into the right to abortion; that's judicial activism. Here are some other examples:
When a court rules that the First Amendment ("Congress shall make no law ... ") suddenly means that "the states shall make no law" and creates a new constitutional "wall of separation" between church and state;
When a court rules that "evolving constitutional standards" mandates a right to same-sex marriage, contravening 200 years of state law and centuries of tradition.
In the area of Constitutional Law, a judicially restrained judge will first look to the language of the Constitution for guidance. Should the language be unclear, the judge would try to define the intent of the Framers of the Constitution in order to decide how best to apply that intent. Finally, if the intent of the Framers in a given area of Constitutional Law remains unclear, the restrained judge will defer to what he or she thinks the Framers meant and try to expand the least on what is considered Framers' intent. By doing so, the judicially restrained judge takes great care to defer to constitutional language or, failing that, to the intent of the Framers of the Constitution. This form of judicial review invites the least amount of "invention" in constitutional law, something a restrained jurist always tries to avoid.