Judicial Interpretations Judicial activism Judicial activism refers to the judicial philosophy that is sometimes referred to as "legislating from the bench". Judicial activists believe that it is acceptable to rule on lawsuits in a way that leads to a preferred or desired outcomes, regardless of the law as it is written. Judicial restraint is generally thought of as the opposite of judicial activism. Matthew Schneider, a professor of law at Thomas M. Cooley Law School, defines judicial activism as, "the theory under which judges may 'actively' interpret the law on a broad plane and are not necessarily constrained to relying on the sources and issues strictly before them." Commentators have attempted to define judicial activism in a number of ways, some of them varying widely. While there are common themes to most definitions, there is disagreement about how precisely to define the term. Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions." Bradley Canon posited six dimensions along which judge courts may be perceived as activist, including majoritarianism, interpretive stability, interpretive fidelity, substance/democratic process, specificity of policy, availability of an alternate policymaker. David Strauss has argued that judicial activism can be narrowly defined as one or more of three possible things: overturning laws as unconstitutional, overturning judicial precedent, and ruling against a preferred interpretation of the constitution. Others have been less confident of the term's meaning, finding it instead to be little more than a rhetorical shorthand. Kermit Roosevelt III stated that "in practice 'activist' turns out to be little more than a rhetorically charged shorthand for decision the speaker disagrees with." However others have scolded this approach as unhelpful because it relies on subjective judgments. Judicial restraint The Glossary of Political Economy Terms published by Auburn University defines judicial restraint as the "view that the Supreme Court (and other lesser courts) should not read the judges' own philosophies or policy preferences into the constitution and laws and should whenever reasonably possible construe the law so as to avoid second guessing the policy decisions made by other governmental institutions such as Congress, the President and state governments within their constitutional spheres of authority. On such a view, judges have no popular mandate to act as policy makers and should defer to the decisions of the elected "political" branches of the Federal government and of the states in matters of policy making so long as these policymakers stay within the limits of their powers as defined by the US Constitution and the constitutions of the several states." In Fundamentals of Judicial Philosophy, judicial restraint is defined as a "jurist (judge or justice) who adheres to a philosophy of restraint can be characterized as one who believes that democracy has intrinsic, not just instrumental, value; that the judiciary is the least powerful of the three branches of government; and reveres the values of stability and predictability in lawmaking." Matthew Schneider, a professor of law at Thomas M. Cooley Law School, defines judicial restraint as, "the notion that judges base their decisions on purely legal sources directly relevant to the question at hand, such as statutes and constitutions, instead of on outside sources or their subjective opinions. Rick Esenberg a nationally renowned legal expert at Marquette University Law School in Milwaukee defined judicial restraint as that a judge exercising restraint must act on external and legitimate sources of authority. Judicial restraint, for our purposes, is the notion that judges ought to base their decisions upon a source of authority that is outside of themselves and their own notions of the just. More fundamentally, this source should be rooted, at some point, in the formal consent of the governed, as opposed to the judge's preferred political or moral philosophy. In other words, the exercise of judicial authority ought to be based upon, or fairly inferable from, some language in the constitution or statutes. The textualist and strict constructionist approach The Strict Constructionist approach to interpreting the Constitution, insists on the literal meaning of a provision in the face of contrary claims that the text must mean more or less than it expressly says. This approach appeals to the promises of simplicity and determinacy. For example, Supreme Court Justice Hugo Black insisted that the First Amendment's command that "Congress shall make no law ... abridging the freedom of speech" meant exactly that, "no law." Textualism is a similar philosophy of interpretation, though with significant differences. Textualists, like Antonin Scalia on the U.S. Supreme Court, agree with Strict Constructionists that the proper scope of inquiry into Constitutional interpretation begins and ends with the text itself--not with the "intent" of the writers, the philosophies of judges, or the consensus of society. However, Textualism differs from Strict Constructionism in its appreciation for context and its search for the understood meaning of constitutional language, as opposed to the literal meaning of the words in isolation. For example, Scalia cites the 1993 case Smith v. United States as an instance in which the literal interpretation strayed from the reasonable meaning of the law. In this case, the Smith had been arrested for purchasing drugs, and, in accordance with the applicable law, had received a harsher than usual sentence because he had "used a gun" while committing the crime. Scalia argues that the language is reasonably understood to mean the use of a gun as a weapon, whereas Smith had merely offered the unloaded gun in exchange for the drugs. The Supreme Court - employing a Strict Constructionist rationale - upheld the increased penalty. A textualist interpretation would have construed the law's language according to its natural meaning, instead of by its literal meaning. The originalist approach The originalist approach aspires to interpret constitutional text in light of original intentions or understandings of the founding fathers who wrote the Constitution. Advocates of originalism are centrally concerned with discovering the subjective intentions of the figures who wrote or framed particular constitutional provisions. They tend to focus on the original public meaning or understanding of a constitutional provision for the generation that ratified or amended that provision. Originalism, of course, has its own liabilities, including determining what counts as evidence of intent, whose intent counts, and whether the promulgated intent should be abstract or concrete. Accordingly, one common criticism of originalism is that an originalist, while claiming to interpret a provision based on the original intent behind it, actually will pick and choose from a variety of sources to meet the meaning he or she wishes to give it. Originalism differs from Textualism in that it looks to the subjective intent of the lawmaker, instead of looking to the objective meaning of the language as understood (by any reasonably well-educated third party) at the time of its enactment. The developmentalist approach (evolutionist) The developmentalist approach builds on doctrinalism by accepting the value of incremental additions of judge- made doctrine, but goes further by enlarging the interpretive arena to include broader historical events, such as informal practices, usages, and political culture. Developmentalists reject both the notions of a static constitution and of "The Moral Constitution", and instead tend to focus on "how meaning has evolved." Chief Justice Earl Warren exemplified this when he said the Constitution ought to be interpreted in light of "the evolving standards of decency that mark the progress of a maturing society." Accordingly, proponents of developmentalism often argue the theory of the Living Constitution, which premises that the Constitution is, to some degree, dynamic. Because of this, however, developmentalism can be assailed on many of the same points as doctrinalism. For example, it does little to advance any goal of stability, for by its very nature it commits itself to the legitimacy of what it calls "constitutional change" not merely from the past to the present but also from the present to an unknown future. As such, a common criticism is that it makes the Constitution "mean nothing," because it holds that it can mean "anything." HANDOUT 1 Conversations on the Constitution: Judicial Interpretation with Justices Antonin Scalia and Stephen G. Breyer 1. Define “tyranny of the majority.” 2. From history or modern times, give three examples where the majority of persons acted in a way which was later determined to be wrong. Example Problem How was it corrected? 3. Which is the best way to correct situations where the majority is in the wrong? (Consider these questions before you respond: Should legislatures correct the problem? Should courts? Why or why not? Is there any one best way to fix problems? How effective and timely are the solutions?) HANDOUT 2 Conversations on the Constitution: Judicial Interpretation with Justices Antonin Scalia and Stephen G. Breyer Directions: For each of the following issues, decide how justices would look at the issue depending on their philosophies. How would the textualists see the issue? Complete that box. How would developmentalists see the issue? Complete that box. At the end, write your own issue and address it. Issue Textualist View Developmentalist View Abortion: Can states restrict access to abortions? Privacy: Can states restrict the activity of people in their own homes? Gun Control: Can states deny persons the right to have a handgun? Exclusionary Rule: Should evidence which is unlawfully obtained by the police be admissible at trial? Write your own issue here and address it: Thought question: Do differing philosophies always mean different conclusions? .