Judicial Activism Judicial Activism The ideas presented by both legal luminaries Attorney General Edwin Meese and Justice WilliamJ. Brennan were insightful and provided me with a greater understanding of the various ways on how to interpret the Constitution as well on how to determine its purpose and intent. After reading and pondering on the arguments of both sides, I am more inclined to side with judicial activism as argued by Brennan that the Constitution must be viewed as living and evolving and as law that is responsive to the realities of the time, rather than Meese’s argument of judicial restraint of interpreting the Constitution according to the original intent of the its Framers. The reason why I came down on Brennan’s side is that I find his point of view more realistic and progressive compared to Meese’s conservatism of sticking to the interpretation by the Framers of the Constitution, which is difficult, if not impossible, to determine.
Borrowing from his words, I just find it unsettling that the “Constitution was meant to be interpreted only as the founding fathers intended” (Perry, 2004 pg.
5) because it would be impossible to determine what their exact thoughts were given the time lapsed after the Constitution was framed. There may be notes and documents made during the debate in Philadelphia when the drafting of the Constitution was still in process but they will always be incomplete and can only give hint of the intent of the Framers and cannot provide the total idea of the Framers when the Constitution was drafted. Assuming for the sake of argument that we should base our interpretations on the original intent of the Framers of the Constitution, the best record available during the drafting process of the Constitution that represents the thought of the Framers only represents about 7 percent of the Philadelphia debates.
Gleaning from this figure, it is likely that succeeding interpretation would be to interpret it in the manner of judicial activism for utter lack of documents to base the decision. There is also a flaw in this line of argument. I may wholeheartedly agree that the Framers of the Constitution had the noblest intention when they drafted the Constitution but they could not possibly anticipate nor box the realities of future according to the wisdom of their time.
Everybody knows that time changes and succeeding generation learn from experience that it will no longer be practical or feasible to go back to the wisdom that did not even have a glimpse of their experience. This is the very reason why portions of the Constitution are articulated in generalities – to let future generation to interpret according to the realities of their time. Even Meese agreed that there are portions in the Constitution that were framed in generalities for it to express general principles that will enable people to interpret according to the realities of our times.
This is necessary as Justice Brennan would argue that “It is arrogant to pretend that from our vantage we can gauge accurately the intent of the framers on application of principle to specific, contemporary questions” (Perry, 2004 pg 5) and thus calls for judicial activism not only for necessity but also as a better alternative. I also find the argument of Meese too simplified when he interpreted that judicial activism is “too many of the court’s opinions are, on the whole, more policy choices than articulations of constitutional principle” because this meant that interpretations outside of his own are arbitrary and ignorant for it was merely based on opinion and prevailing interest and not on the basis of law.
Judicial activism is not a policy choice but rather an adequate response of the law to the realities of the time. We evolve and learn along the way and correspondingly, the Constitution must also adapt.
Chief Justice Earl Warren explained in 1954 “the evolving standards of decency that mark the progress of a maturing society” (Perry, 2004 pg. 6) and correspondingly, this reality should compel us to interpret the law in a more appropriate way that responds to the standards of decency of the time. The law must not drag us back into the Middle Age. It should instead serve as a beacon that would usher us towards a just, humane and progressive society in the future that is why I am inclined towards judicial activism in interpreting the Constitution.
Borrowing the words of Brennan, we should always ask “What do the words of the text mean in our time? ” (Perry, 2004 pg. 5) instead of literally interpreting the Constitution under the outdated lens of judicial restraint. Reference Perry Barbara (2004). Original Intent or Evolving Constitution? Two Competing Views on Interpretation. American Bar Association. Insights on Law & Society 5.1
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