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Judicial Activism

Judicial activism is necessary because some issues are just too difficult for the political branches of the government to confront. Advocates of the opposing theory of "judicial restraint" hold that the judiciary should mind precedent carefully, consider the Framers' intentions with regard to the Constitution, and defer to legislative decisions allowing "broad issues of the public good [to] be decided in nearly all cases by the majority through legislation enacted by elected officials" (Patterson 424). But one clearly understood fear of the Framers was the potential "tyranny of the majority -- the people acting as an irrational mob that tramples on the rights of others" (Patterson 45). This fear was one of the reasons they established the system of governmental checks and balances and judicial review that allowed the courts to invalidate actions taken by the political branches of the government. Judicial activists reject excessive deference to precedent and to the judgments of legislatures and hold that the judiciary "must look at the Constitution at a high level of abstraction, teasing out the fullest implications of principles like 'equal protection' and 'due process' and of the federal powers described in seemingly narrow provisions like the commerce clause" (Rosen 59). With the Constitution as their guide activist judges recognize that new cases present new circumstances that the Framers could not imagine but that the principles remain firm. They argue that "democratic majorities must yield when their actions fly in the face of fundamental liberties" (Rosen 59).

The will of the majority -- which is expressed through the actions of elected legislators or in referendums -- can work, precisely as the Framers feared, to suppress the rights of some groups of citizens. But, as Justice Brennan noted, "it is the very purpose of a Constitution -- and particularly of the Bill of Rights -- to declare certain values transcendent, b...

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Judicial Activism. (1969, December 31). In LotsofEssays.com. Retrieved 09:47, March 28, 2024, from https://www.lotsofessays.com/viewpaper/1695718.html