Judicial Restraint v.
Judicial Activism
Judicial Restraint
 Stick to a strict interpretation of
the Constitution.
 Use the original intent of the
Framers.
 If Constitution is silent or
ambiguous, defer to states
and/or elected branches.
Judicial Restraint (cont.)
 Judges are not elected and not
accountable to the people.
 They should not be policy makers.
 They should not impose their
personal views.
 Amendments can be used to
update the Constitution if need be.
Judicial Activism
 The Constitution is a “living”
document.
 A broad interpretation should
be used to account for modern
circumstances.
 Uphold the spirit of the
Constitution, not just the letter.
Judicial Activism (cont.)
 Courts are the last resort for the
powerless.
 Legislative majorities can be
discriminatory.
 The Amendment process is too
difficult to navigate.
Selective
Incorporation
Selective Incorporation
 Does the Bill of Rights apply to
actions taken by the states?
 In Barron v. Baltimore (1833), John
Marshall said NO!
 Federalism demands that state
courts be allowed to adjudicate
state laws and actions.
Const.
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Selective Incorporation
(cont.)
 During Reconstruction, the 14th
Amendment was passed to try and
protect freed slaves from unfair state
laws.
 By repeating the “Due Process” clause
and creating the “Equal Protection”
clause, Congress was hoping that unfair
state laws could be struck down by the
S.C..
Const.
Bill of
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14th Amendment
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Selective Incorporation
(cont.)
 In Gitlow v. NY (1925), the S.C.
allowed an individual to use the 14th
Amendment to challenge a state law
restricting free speech.
 Although the Court upheld Gitlow’s
conviction, this case established a
precedent that provisions of the Bill of
Rights could be applied to the states.
Selective Incorporation
(cont.)
 The idea that the 14th Amendment
makes the Bill of Rights applicable to
the states is called the “incorporation
doctrine.”
 Over the past 60 years, the S.C. has, on
a case-by-case basis (i.e., selectively),
“nationalized” most of the provisions
of the Bill of Rights.
Const.
Bill of
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14th Amendment
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