Judicial Philosophies
AP GOVERNMENT
Mr. Brady
Judicial Activism
• “Loose Construction”
• 1. Supported by early writings, logic and successful
practice.
•
A) Support in Fed 78.
•
B) Illogical to think that the Founders could foresee
modern society. Standards of 1787 won’t work.
•
C) Allows Constitution to be flexible and durable.
• 2. Negative effects of Judicial restraint are very evident.
• A.) Dred Scott
• B.) Plessy v. Ferguson
• C.) Hammer v. Dagenhart
• D.) Fisher v. Texas
Judicial Activism (cont)
• 3. There are guaranteed rights NOT written in the Constitution.
•
A. Innocent until proven guilty.
•
B. Right to privacy
•
C. Bill of Rights applied to the states. (Gitlow case)
•
D. Penumbras/Incorporation. (14th Amendment)
• 4. Upholds the spirit of the Constitution.
•
A. Brown v. Board of Ed. (Separate but Equal overturned)
•
B. Baker v. Carr (one man, one vote) 1962
•
C. Gideon v. Wainwright (right to counsel)
• 5. It is impossible or even arrogant to divine “original intent”
•
A. Constitution is deliberately vague.
•
B. To which Founding Father do we turn?
Judicial Restraint
• 1. Only strict construction can preserve
the Constitution from whim and fancy.
• 2. Constitution gives law and policymaking authority to the President and
Congress ( i.e. NOT the Judiciary)
• 3. Article III gives the courts judicial
power only.
• 4. Judicial review can be abused to
become judicial legislation (a usurpation
of power)
• 5. The power to interpret is the power to
change.
Judicial Restraint (cont)
• 6, Judges should rule based upon Constitution,
laws and treaties.
• 7. Judges should not impose their personal
notions of what is desirable.
• 8. The Constitution is a permanent document
which contains a process for addition and deletion
(amendments)
• 9. If the wording of the Constitution is ambiguous,
the courts must take into consideration the
perspective of the Founders or determine the
intent behind their language.
Learning Goal/Objective
• During the video on the Supreme Court
and after, discuss how the role of the
court has changed over time.
• Compare the central idea(s) in the
video with the central thesis in Fed 78.
• Review Levy and compare to previous
articles and Fed 78/Notes.
• Discuss Mock Trial and assign roles.
• If time permits, begin Posner article.
• Connecting Levy with previous ideas
from readings and notes.
• What connections can you make with
“Framers and Original Intent” ?
• Is this more of an argument for
Restraint rather than intent? Explain.
Essay Prompts
• 1. Activism vs. Restraint- Use info from
Bork. Scalia, Brennan, Roche, Levy and
Posner to defend either interpretation.
• Fed 78?
• You are expected to reference Scalia’s
God’s Justice and Ours to defend one
of the philosophies.
Essay Prompts
• 2. Wilson notes three Judicial Eras in
the text. 439-446
• A. Identify them and the issues
involved.
• B. Make references to court cases in
that era.
• C. Confirm or challenge Wilson’s thesis
on the graph provided.
Civil rights.
Civil rights are legal actions that the
government takes to create equal
conditions for all people. For example, the
Fourteenth Amendment to the U.S.
Constitution guarantees citizenship rights
and equal protection under law.
Therefore, all U.S. citizens who qualify to
vote have the right to do so and that right
is enforceable by government
intervention. Other examples of civil
rights include the right to be free from
employment discrimination based on race,
gender, age, or disability, or equal access
to health care and social services.
• Civil liberties, on the other hand,
refer to protections against
government actions. For example,
the First Amendment of the Bill of
Rights guarantees U.S. citizens the
freedom of religion. By law, the
government is prohibited from
interfering in our individual choice
of religion and worship. We have
"liberty" from government action or