With all of the recent news about new supreme court justices, (as well as discovering my debate topic for the next two months) a question has been raised to me that is certainly thought provoking. Is Judicial Activism necessary to protect the rights of American citizens? I mean, I understand that some NEW rights can be developed through judicial "policy-making" as it's sometimes otherwise called, but Judicial activism can work in the reverse as well.... Judicial Activism is simply such a loaded term, but I'm hearing it so frequently now that it is a matter that I feel should be discussed.
Judicial activism is a cover-up, a smokescreen word like "tort reform". It applies to any kind of judgement the right doesn't like. Interpretation of the constitution often confers new rights on the people as a matter of course. Roe vs. Wade gave women the right to get an abortion, because the constitution says we have a right to privacy "of our persons". The liberal judicial activists may be imprudent and misguided in their efforts to enact the liberal political agenda into constitutional law. But it is no use pretending that what they are doing is not interpretation but "deconstruction," not law but politics, just because it involves the exercise of discretion and a concern with consequences and because it reaches results not foreseen two hundred years ago
Judicial Activism is a real concept but the phrase is used almost exclusively as a smokescreen to pretend that the founding fathers would believe that liberals are bad and conservatives are good. The constitution is very small and says nothing on most topics. Precedent is the basis of our legal system but precedent is a necessary form of Judicial Activism. Conservative judges have their own Judicial Activism. The process that gave corporations the political rights of people was Judicial Activism. Stretching the commerce clause to make it prohibit California from legalizing medical marijuana was Judicial Activism. Without Judicial Activism the supreme court and other federal courts would not be able to hear most of the cases that come out of state courts. The constitution gives no clue on abortion. The Christian Right only wants abortion to be a states issue because they don't have enough national support to ennact a federal ban on abortion. If the Christian Right did have majority support then it would be the Pro-Choice Liberals talking about Judicial Activism and Strict Constructionism and insisting that abortion is a states issue because the constitution is unclear on abortion. Abortion existed in the times of our founding fathers but was rare because it was not safe for the women back then. Our Founding Fathers were to busy to think about abortion. If checks and balances / three branches of government are necessary to protect our rights then Judicial Activism probably is necessary to protect our rights because without Judicial Activism the Courts barely exist as a third branch of government.
