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On Judicial Activism
When is a judgment judicial activism and when does a judgment simply reflect a different approach to jurisprudence?
The question of judicial activism is a hotly debated and extremely divisive issue. Often, this is because the consequences of judicial decisions can be substantial.
In expressing the issue, I have often asked myself several surface questions. Is the law a living entity? Should judges take into account changing circumstances to revise the law? Should the legislative branch alone make laws? Should the judicial branch only determine constitutionality? To supplement these surface questions, I often ask several more in-depth and slightly more challenging questions. Is there a difference between judicial activism and statutory interpretation? Should a judge's opinion inform constitutional interpretation, and is there a line between interpretation and usurpation?
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Many of these questions fall into the ongoing debate between loose constructionism and strict constructionism. Loose constructionism is the idea that the founders purposely crafted a vague document with loose terminology so that future generations could maintain flexibility in its interpretation and application. The counter-argument to this idea, strict constructionism, refutes the concept by pointing out the availability of the amendment process to the Constitution. Strict constructionism questions the premise of loose constructionism by asking why Congress was given the specific responsibility to craft new laws and to refine the Constitution through the legislative process if the founders had expected changing approaches and definitions to be available through interpretation alone.
As opposed to falling firmly within either the loose construction or strict construction camps, I view myself as an originalist. Originalism is the idea that legal interpretation should neither justify meaning from the statutory language which was not intended but neither should it focus solely on the language itself while ignoring the intent of those who crafted the law. Most originalists understand that judicial activism is a far more complicated idea than most assume, especially since different opinions and views of intent can inform judicial decisions, and not every judgment that's counter to one or the other side's political narrative is necessarily judicial activism. Two specific examples are guns and abortion.
The right to bear arms is a volatile subject for many, and there are many on both sides that accuse judges of judicial activism when they side one way or the other, ignoring the fact that often these judges have arrived upon their legal understandings in ways that inform their decisions beyond simply "legislating from the bench." While there may be some judges who rely solely on opinion to rule against gun rights or on behalf of gun rights, most simply hold different interpretations of what actually constitutes the right to bear arms.
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The same holds true for abortion, which, to the honest observer, is actually a complicated consideration between two seemingly inherent natural rights: the right to be free from coercion and the right to live. As an originalist, I recognize different opinions are not necessarily judicial activism, but instead of arguing about the looseness or the strictness of the wording, I inform my understanding by seeking the intent, or the spirit, of the law. My definition of judicial activism is when a judge concedes that no intent existed for a given law to apply in a given situation yet nevertheless justifies a decision reflecting political or ideological leanings to craft new legislation or create a radically different approach.
In the end, I believe the pillar of our form of government is the idea of separation of powers, meaning that the three branches of government are divided so that the responsibilities of crafting the law, interpreting the law, and executing the law are never held in the same hands. This construct of federalism is frustrated when either branch seeks to co-opt the other.
Justin Stapley received his Bachelor’s Degree in Political Science from Utah Valley University, with emphases in Political Philosophy and Public Law, American History, and Constitutional Studies. He is the Founding and Executive Director of the Freemen Foundation as well as Editor in Chief of the Freemen News-Letter. @JustinWStapley