The Doctrine of Judicial Activism - Essay Example

“Laws which are contrary to the Constitution are therefore void because the interpretation of the laws is the proper and peculiar province of the courts (Federalist No. 78), because it is emphatically, the province and duty of the judicial government to say what the law is (Marbury Vs. Madison), and because the Constitution is the fundamental law, judges must give preference to it over ordinary laws” (11). It is the vested power of the judiciary branch of the government to strike down statutes that are inconsistent with the Constitution. In the event that a conflict shall arise between two laws, it is the duty and obligation of the Court to interpret the law and has the power to determine which among these laws is contrary to the intent of the supreme law of the land or the Constitution. According to Corwin, “Well-entrenched is the principle that the Constitution is superior to any ordinary act of the legislature, then, the Constitution, must govern the case to which they both apply” (8).

The doctrine of judicial activism holds that the “federal judiciary should take an active role in using its powers to check the activities of the governmental bodies, when those bodies exceed their authorities “(Bardes, Shelley and Schmidt, 458). There are some judges who play as activists or restraintists. An activist is one who presents the role of the judge as liberal wherein he applies the law in deciding the case and produces appropriate results. More emphasis is geared towards the result, rather than the method or manner used to achieve such result.

A “restraint” judge is one whose function is to apply the law and should not act as a legislator because the law-making power is vested with Congress or the legislative branch of the government. It is the task of the judge to decide cases based on established rules. In the event that he does not agree to the existing terms of the law, he may not rule upon the case based on such law, and refer the matter to the legislative to amend or change the law based on its recommendations. In principle, the law is sufficient in itself and the role of the judge is merely to apply the law based on its reason. Read More