Judicial Restraint Vs Judicial Activism

Explain differences between judicial restraint and judicial activism and apply the concepts to cases we have discussed in class. Discuss which approach you think is appropriate and why.

Here is some example form the lecture might help

(( • Cases challenging regulation of reproduction and sexuality have been filed under the 14th amendment. For example, until Roe v. Wade, many states prohibited abortion. Other states have regulated sodomy, often defined in the statutes as oral and anal intercourse; some statutes made homosexual sodomy a crime, but not heterosexual; some states made both illegal. Many states make adultery illegal.

• “Right to privacy” – is not explicitly spelled out in the Constitution, but many scholars believe that the founders intended for such a right to exist, and that the existence of other amendments like the Fourth Amendment (protection from searches and seizures) supports that idea.

– Griswold v. CT – 1965- first case in which court says a right to privacy exists; the case overturns a Connecticut law regulating birth control.

– Roe v. Wade – 1973 – is the second case declaring a right to privacy; Roe court prohibits regulation of abortion up to the third trimester, when the fetus is “viable” outside the womb. At this point in the pregnancy, the government’s interest in protecting unborn life outweighs women’s privacy interest, thus government can prohibit abortion at the third trimester.

– Bowers v. Hardwick – 1986 – upheld a Georgia law prohibiting sodomy; court said prior right to privacy cases involved family and reproduction; thus only HETEROSEXUAL privacy choices (i.e, reproductive freedom and child-rearing) were protected under the right to privacy identified in Griswold and Roe.

– Bowers was overturned by Lawrence v. Texas in 2004. The court emphasized the highly private nature of sexual conduct and held that laws prohibiting consensual sodomy were unconstitutional.

– Griswold and Roe reflected the court’s belief that choices about childrearing and whether to have children involve FUNDAMENTAL RIGHTS

– Laws that interfere with fundamental rights draw STRICT SCRUTINY, meaning that the government must have a strong justification for the law; often strict scrutiny results in the law being struck down by the courts.

– Lots of controversy over court articulating “new” privacy rights even though not explicitly included in the Constitution.

– Roe v. Wade in particular is criticized as a case of “judicial activism,” the willingness of judges to “read into” the Constitution rights that they personally think are important and overturn decisions by legislat

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