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By interpreting, the judge is equipped with knowledge to decide what applies in a particular case. The decision must also be constitutional rather than a biased one. (Scalia, 1997)This is what is referred to as strict constructionism or strict constructivism. The judge must first acquire the meaning of a particular clause of the constitution then apply it in the ruling. The use of strict constructionism is recommended where the provisions of the constitution are unclear, ambiguous or absurd.
On the other hand, one may view the constitution as a self-fulfilled set of guidelines to govern any ruling.in the event that there are no ambiguous or the clarity of the provisions is spot on, the judges are expected to strictly apply the exact meaning in the ruling. (Forte, 1972) One of the issues that arise with interpretation of the constitution by the judges is expansion of the laws through implications. Justice, reason and fairness may fail to materialise if the judges fail to restrain from expansion of the law through implication.
Abortion has been one of the most contentious and sensitive issue over a period of time. Judicial involvement is rampant and the most publicly highlighted case is the Roe v.Wade case. The outcome of this case was the declaration of access abortion as being a fundamental right of any woman upon determination of foetal viability. (Craig, 1993) Consequently, the conditions determining foetal viability became very conflicting. Up to now, different states continue to set up rulings concerning abortion due to their own definition of the term “foetal viability”.
For instance, the Supreme Court is under intense pressure to rethink about the legal conditions as to when an abortion can be performed. Various petitions have been raised by different states prompting the judicial system to re-evaluate its position as expressed in the Roe vs. Wade case. In this case,
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This essay explores the perceived judicial activism of the (ECJ) in an attempt to create a constitutional foundation for the European Union (EU). Judicial activism in the case of ECJ refers to the political implications of the policies made by the court in its interpretative role (Rasmussen 45) The detractors of the ECJ feel that it promotes European federalism to the detriment of the interests of Member States.
One of the main functions of the Supreme Court is to pass judgment on the constitutionality of laws passed by Congress. When the Supreme Court passed judgment over the health care laws, it was just exercising its power of judicial review. This power is based on the need to secure the rights of the minority in relation to the majority electorate and the need to ensure justice and fairness for the people.
JUDICIAL ACTIVISM BY EUROPEAN COURT OF JUSTICE . Introduction The European Community Courts have played a decisive role in the integration process of the European Union. The European Court of Justice (ECJ) has especially assumed key role by constantly pursuing legal assimilation in the EU by offering flesh and substance to an outline Treaty, thereby plugging in loopholes in the European laws, and improving the effective implementation of Community law in the provinces of the member states1.
For instance, in Bush v. Gore, 531 US 98 (2000), which is the ultimate case of judicial activism, conservatives did not decry this case as being a case of judicial activism. But, if one reads the opinion, it is clear that the judges are straining to find reasons for the decision, and the reason that they actually found, equal protection, does not fit the case at all.
Judicial restraint is when the Court takes the stand that law making is to be left to the legislators and it opposes the nullification of a law only when the Constitution is unquestionably violated. It has been said that 'throughout its history, the Court has claimed to exercise judicial review with restraint, but it has always actively pursued its chosen policies of the moment' (2005).
Thus, it is a usurpation of power and it happens when a judge takes a decision that is different from common law, jurisprudence and the constitution of the country. It may also occur when the decision of judges overrules the prevalent law or legal doctrines in the country that are likely to undermine the country's social policy.
nd only later came to be viewed as a constitutional document.”2 The judicial rulings of the ECJ in the 1960s and 1970s have in effect resulted in a constitutionalization of the treaties establishing the European Union through its jurisprudence. In fact, according to D.
The Supreme Court acted in an activist manner in the period between 1953 and 1969, and this is in an era when Chief Justice Earl Warren headed the Court. The Warren Court instigated the civil rights onward by suggesting that
The author of the text provides the ideas concerning judicial activism. Hence, according to Brennan, the Constitution must be viewed as living and evolving and as a law that is responsive to the realities of the time. However, Meese considers judicial restraint of interpreting the Constitution according to the original intent of its Framers.