Judicial activism vs.Judicial restraint

This video explores the two political philosophies Judicial activism and Judicial restraint.

Judicial restraint is the; “philosophy whose adherents refuse to go beyond the clear words of the Constitution in interpreting the document’s meaning.” (Pg.421 Ginsberg, Lowi, Weir, Tolbert, Campbell, Spitzer) It aims to translate the original Constitution word for word with what the framers intended to avoid bringing their own beliefs or biases in and or legislate from the bench.

Judicial activism is; “the philosophy that posits that the court should go beyond the words of the Constitution or a statute to consider the broader societal implications of its decisions.” (Pg.421 Ginsberg, Lowi, Weir, Tolbert, Campbell, Spitzer) To “creatively interpret or re interpret the texts of the Constitution with the intent to make it more current or adaptive to needs of today.

On C-SPAN’s America and the courts Justice Stevens seemed to have a philosophy closer to judicial activism. On the subject of cruel and unusual punishment he states: “I see is as not particular conditions, at the time maybe they thought the flogging was fine, they used to flog people on ships. I don't know the exact details of what everybody thought cruel and unusual punishment was ...the question becomes where we draw the line today not where they drew the line in the 18th century
…That's why the job is a difficult job but that's the point of disagreement, I think.” (Justice Stevens 10:02 / 57.14) while Justice Scalia who referred to himself as an originalist replied; “…what circumstances have changed? Death was death then death is death now, 18 was 18 then, 18 is 18 now, you’re talking about applying different values…but once you abandon what they meant, you’re at sea…” (Justice Scalia 10:44 / 57.18)

In my opinion with regards to human nature there is no such thing as unbiased.
The competing combination of both has many advantages; one side looks at the original intent while the other attempts to look at how those same laws amendments apply today. It’s like the left and right hemispheres of the brain one is more emotional and the other is more logical. However I lean towards the judicial restraint. If cruel and unusual punishment can only be inflicted at the legal age of reason, and in the 1700s that was 12, and now the age of reason is18 then nothing has really changed except the age.

Works Cited

C-SPAN. “Log in to Canvas.” Online.seminolestate.edu, 4 Jan. 2018, online.seminolestate.edu/courses/103469/assignments/1220553?module_item_id=2681890. Accessed 25 Mar. 2022.

Ginsberg, et al. “W. W. Norton & Co.” Digital.wwnorton.com, 2021, digital.wwnorton.com/wethepeople13ess.