The Search for the Right Balance - Essay Example

?The Search for the Right Balance: Between Judicial Activism and Judicial Restraint in the United s I. Introduction II. Constitutional Powers ofJudiciary in the United States III. Judicial Restraint and its Wider Impacts IV. Judicial activism and the Spirit of the Constitution V. Conclusion I. Introduction Judicial activism and judicial restraint are the two sides of one coin, in which the former presupposes the active involvement of judges and influence of their personal opinion in the rulings’ and the latter is about dealing with the possibilities of judicial overreach. The concept judicial restraint is based on the Montesque’s idea of ‘division of powers’, which upholds separation of various organs of government for effective governance. For instance, when a judge rules on any case s/he should adhere to the rule of law and must not go beyond the strict interpretation of the law; which will, in result may usurp the power of legislature. Judicial activism is a practice, wherein judges’ personal or political views get more consideration than the existing law in judicial pronouncements. Judicial activism and judicial restraint are inevitable parts of the development of judicial processes in the United States. Thus, here, it becomes necessary for us to see the concrete practices of both judicial restraint and activism in the United States. The essay intends to analyze the development of law in the United States, by critically interrogating the notions of judicial restraint and judicial activism. II. Constitutional Powers of Judiciary in the United States Framers of American constitution have adopted the idea of separation of powers wherein three wings of the government have equal powers whereas the British model follows the idea of parliamentary supremacy, in which parliament gets more power than other branches of the government; namely, judiciary and executive. Through checks and balances, the American model seeks to prevent all the branches of the government from wielding too much power. Constitutional provisions regarding judiciary have substantially influenced the judicial pronouncements in the country. Section 1 of the Article 3 of the United States’ constitution states that the “judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish”. Further, Section 2 of the same article elaborates the duties of the courts in the United States. The section notes that the “judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” Above provisions in the US constitution have permitted the Supreme Court to interpret laws and the core features of the constitution. The cases that are presented before the court could well be amenable to judicial activism at the level of Supreme Court wherein the judges could reinterpret the related laws, judgments, and constitutional provisions. In 1796, the Supreme Court annulled a Virginia law on the ground that it was against the spirit of a 1783 peace treaty with Britain. Again, in 1803 Marbury v. Madison case provided an opportunity to the Supreme Court to assert its powers (Hall, 2005). The Marbury v. Madison case was one of the landmark cases in the United States’ constitutional history, which empowered the United States’ Supreme Court with the power of judicial review. The judicial review empowers the Supreme Court to cancel or void the pronounced acts of the federal and state governments, which are against the spirit of the constitution. And, thereby, actions of both legislature and executive are brought under the purview of the Supreme Court. Judicial review, a new weapon in the hand of judiciary in the early nineteenth century, raised many questions around application of judicial rights vis-a-vis the legislative powers. What stand should be taken about judicial review? Should judges try to restrain themselves? Should judges utilize the opportunity to enhance the scope of interpretation of constitution? III. Judicial Restraint and its Wider Impacts Proponents of judicial restraint argue that the courts should respect all acts of federal legislature and state legislatures, which are not contrary to the spirit of the constitution. The concept judicial restraint upholds the idea of division of powers wherein sovereign powers of the state are divided into three organs of the state; legislature, executive, and judiciary. In such a system, every organ performs its duties and concentration of power is avoided through checks and balances. Judicial restraint adheres to the idea of separation of power and as a result, interference in the work of legislature and executive is avoided. The idea of judicial restraint is somewhat opposite to judicial activism. Judiciary should follow maximum restraint and should not exercise judicial review to interpret to advocate new ideas or policies. The notion of judicial restraint firmly asserts that judges should not strike down laws. Certainly, it could be possible only while dealing with rare cases. Such rare cases are understood as involving legislative violation of constitutional provisions. In short, underpinning of the judicial restraint is that judges should adhere to as their fundamental duty, which is interpretation of law, and should not interfere in the domain of executive and legislature. Luther v. Borden, 1849 is one the pioneer cases in the advocacy of judicial restraint (Hall, 2005). The case established the doctrine of the ‘political question’ in American Constitutional law. The political question essentially proposes that the court system has authority to decide only legal questions and no jurisdiction over political questions or issues. The idea of political question indicates that the legal questions are only justiciable and political questions do not come under the purview of judiciary. Since 1849, the idea of judicial restraint has traversed further and there are so many cases, which revealed the delicate tensions between judicial restraint and judicial activism. Many eminent Supreme Court justices have argued for judicial restraint as a fundamental principle that constitutes the judiciary. Felix Frankfurter is one of the famous proponents of judicial restraint. After the verdict of “West Virginia State Board of Education v. Barnette” (1943) case, Frankfurter became a known face and staunch advocate of judicial restraint. Moreover judicial activism has grater possibilities when dealing with minority issues and concerns which are tends to be discarded by mainstream politics. Therefore, Whittington (2002) suggests that “There are a variety of minorities that can be distinguished, identified, and set aside within the democratic and legislative process. It may make sense to attempt to build institutional checks to try to protect them. This is true not only in the obvious case of the American context of racial and ethnic minorities, but also of religious minorities, sectional minorities, partisan minorities in some cases, and a variety of other kinds of separate communities that may exist within a larger political whole. Waldron often talks of a single political community and the need for that single political community to make decisions about its own future. The problem, of course, is that within a polity such as the United States, there is actually a conglomeration of many different political communities, and sometimes those individual political communities are recognizable as being distinct and outside the majority. It is quite possible for the majority to make decisions that primarily affect these communities, but that do not significantly affect the majority itself” (p. 31). While pronouncing the verdict of the case, Frankfurter delineated an ideal position a judge should take while delivering a judgment. In Frankfurter words, “as a member of this Court I am not justified in writing my private notions of policy into the constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard...... It can never be emphasized too much that one's own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one's duty on the bench” (As quoted in Scheb and Stephens, 2008, p. 237). The verdict was characterized for its novelty which no other judge has previously imagined or agreed upon. It has been observed that, in politically controversial cases, judiciary tends to observe judicial restraint than other cases. However, there is no concrete practice or doctrine which has been drawn to profess judicial restraint. There has been a lack of consensus on the common rules of judicial restraint over a long period in the American judicial system. At present, some rules have emerged over time only because of particular controversies or crises and based on the notion of judicial precedent. IV. Judicial activism and the Spirit of the Constitution Judicial activism connotes active involvement of judges and the influence of their personal opinion in the rulings. The idea of judicial activism is sometimes considered as opposite to judicial restraint. In some cases, judges tend to cross their power in determining cases before the court. Interpretation of law according to the constitution is the primary duty of a judge. However, judicial activists tend to impose their own will over the ruling. The central postulate of judicial activism is that when executive and legislature fail to perform their duties, judiciary should fulfill those duties and use its power to correct deviations. In nutshell, the court should interfere in policy matters and legislative functions. It should play major role in the policy formation and should direct government on policy as well as legal matters. In the late sixties, Chief Justice Earl Warren and other members of his bench like William O. Douglas were the famous advocates of judicial activism. They promoted the agenda of social change by interpreting the constitution for the benefits of the downtrodden sections of the society. Policies like school desegregation, right to vote for all Americans and many other progressive policies were result of their extended judicial activism. How a judge perceives the conceptions of judicial restraint and judicial activism is depended upon the representativeness and his/her attitude towards majority rule. Wolf (1997) forcefully argues that, “no factor is more important than the judge's underlining attitude towards majority rule and the "political branches" (i.e., the legislative and executive). If a judge strongly believes in majority rule and the representativeness of the political branches, judicial restraint will usually be the result. ....... more skeptical attitude towards majority rule and/ or the representativeness of political branches, a greater openness to the possibility of judicial activism will result” (p. 5). In brief, one could argue that judicial activism is directly linked to the perceptions of judges on certain principles such as majority rule. V. Conclusion It is argued that the practice of judicial restraint and judicial activism depends upon judges’ political view. The provisions of judicial restraint and judicial review are not simply about the content of disputes, but also about the best ways for solving disputes. Therefore, Whittington is of the view that “There may be many disputes that involve rights claims but which the judiciary should not attempt to settle precisely because it has little to add to the existing debate beyond its institutional assertion of the authority to render such decisions. In many disputes, there may be no question that rights and constitutional values are at stake, but there exist substantial questions as to how the dispute should be resolved” (2002, p. 33). Moreover, judiciary must have fine values such as humility and willingness to abstain from power struggles, which are quintessential for long term institutional growth and health. References Hall K. L. (2005a). “Luther v. Borden”. The Oxford Companion to the Supreme Court of the United States. Retrieved from http://www.encyclopedia.com/topic/Luther_v._Borden.aspx#1-1O184:LuthervBorden-full Hall, K. L. (2005b). “Marbury v. Madison”. The Oxford Companion to the Supreme Court of the United States, Retrieved from http://www.encyclopedia.com/topic/Marbury_v_Madison.aspx#1 Scheb, J.M., & Stephens Jr, O.H. (2008). American constitutional law: Civil rights and liberties (4th ed.). Belmont, CA :Thomson Wadsworth. Whittington, K. E. (2002). “An “indispensable feature”? Constitutionalism and judicial review”, Legislation and Public Policy, Vol. 6. No. 2. pp. 21-33. Wolfe, C., (1997). Judicial activism :Bulwark of freedom or precarious security?. Maryland : Rowman & Liftlefield Publisherr, Inc. Read More

 

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