Judicial Philosophies AP GOVERNMENT Mr Brady Judicial Activism

Judicial Philosophies AP GOVERNMENT Mr. Brady

Judicial Activism • “Loose Construction” • 1. Supported by early writings, logic and successful practice. • A) Support in Fed 78. • B) Illogical to think that the Founders could foresee modern society. Standards of 1787 won’t work. • C) Allows Constitution to be flexible and durable. • 2. Negative effects of Judicial restraint are very evident. • A. ) Dred Scott • B. ) Plessy v. Ferguson • C. ) Hammer v. Dagenhart • D. ) Fisher v. Texas

Judicial Activism (cont) • 3. There are guaranteed rights NOT written in the Constitution. • A. Innocent until proven guilty. • B. Right to privacy • C. Bill of Rights applied to the states. (Gitlow case) • D. Penumbras/Incorporation. (14 th Amendment) • 4. Upholds the spirit of the Constitution. • A. Brown v. Board of Ed. (Separate but Equal overturned) • B. Baker v. Carr (one man, one vote) 1962 • C. Gideon v. Wainwright (right to counsel) • 5. It is impossible or even arrogant to divine “original intent” • A. Constitution is deliberately vague. • B. To which Founding Father do we turn?

Judicial Restraint • 1. Only strict construction can preserve the Constitution from whim and fancy. • 2. Constitution gives law and policymaking authority to the President and Congress ( i. e. NOT the Judiciary) • 3. Article III gives the courts judicial power only. • 4. Judicial review can be abused to become judicial legislation (a usurpation of power) • 5. The power to interpret is the power to change.

Judicial Restraint (cont) • 6, Judges should rule based upon Constitution, laws and treaties. • 7. Judges should not impose their personal notions of what is desirable. • 8. The Constitution is a permanent document which contains a process for addition and deletion (amendments) • 9. If the wording of the Constitution is ambiguous, the courts must take into consideration the perspective of the Founders or determine the intent behind their language.

Learning Goal/Objective • During the video on the Supreme Court and after, discuss how the role of the court has changed over time. • Compare the central idea(s) in the video with the central thesis in Fed 78. • Review Levy and compare to previous articles and Fed 78/Notes. • Discuss Mock Trial and assign roles. • If time permits, begin Posner article.

• Connecting Levy with previous ideas from readings and notes. • What connections can you make with “Framers and Original Intent” ? • Is this more of an argument for Restraint rather than intent? Explain.

Essay Prompts • 1. Activism vs. Restraint- Use info from Bork. Scalia, Brennan, Roche, Levy and Posner to defend either interpretation. • Fed 78? • You are expected to reference Scalia’s God’s Justice and Ours to defend one of the philosophies.

Essay Prompts • 2. Wilson notes three Judicial Eras in the text. 439 -446 • A. Identify them and the issues involved. • B. Make references to court cases in that era. • C. Confirm or challenge Wilson’s thesis on the graph provided.

Civil rights are legal actions that the government takes to create equal conditions for all people. For example, the Fourteenth Amendment to the U. S. Constitution guarantees citizenship rights and equal protection under law. Therefore, all U. S. citizens who qualify to vote have the right to do so and that right is enforceable by government intervention. Other examples of civil rights include the right to be free from employment discrimination based on race, gender, age, or disability, or equal access to health care and social services.

• Civil liberties, on the other hand, refer to protections against government actions. For example, the First Amendment of the Bill of Rights guarantees U. S. citizens the freedom of religion. By law, the government is prohibited from interfering in our individual choice of religion and worship. We have "liberty" from government action or