Essays Judicial Activism
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Judicial Activism is defined as, when a judge rules in the court based on his or her standards of
behavior and beliefs concerning what is acceptable and unacceptable. This is not the conventional
way that the Court will rule. I feel it has a high impact on the United States and I think the impact is
good. It allows for judges to put their personal input in a ruling, which could go against the
Constitution but it seem to give the Court's more of a positive influence. Leaving Americans feeling
for more satisfied that there was a fair ruling received. The Constitution allows judges to play an
activist role because the Courts are not considered a pure democracy. Instead they are leaders that
represent the people. The case Roe v. Wade established
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Example Of The Short Version Of Judicial Activism
The short version of judicial activism is when a single judge interprets the constitution and laws and
certain way, or basically goes against the constitution and laws due to his own beliefs.
Judicial activism is very common in our everyday world and was even something would would see
back in the past. Today you see judicial activism more and more everyday, judges letting their
personal life affect their place of work. It seems like now judge don't care as much as to what's right
and what's wrong as much as they care about their personal beliefs and what they think is the correct
way. One big example of judicial activism is back in 1892, this is an important date where a man
decided he was going to stand up for what he believes in. Homer
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Essay on The Role of the Judiciary
The Role of the Judiciary
A judge is a person who presides over a court of law whether it is a lower court or a higher court.
There are many different types of judges, varying from the Justices of Peace who sit mainly in the
Magistrates Court in ordinary clothes, to the robed Justices of the Supreme Court of the United
States of America or the English Court of Appeal who decide questions of National importance. Yet
they are all judges.
The judiciary is the branch of the government whose task is the administration of justice. The
principle work of a judiciary is to be the moderator of disputes. The court must decide on all aspects
of the law when dealing with criminal cases and to gather
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Any judicial hearing will involve the participation of a number of people. The judge being the
central figure, then u have the parties and their lawyers that represent them but also there are other
individuals involved too which may include witnesses, court room clerks, bailiffs and jurors when a
jury is required.
Although the stated role of the judiciary is to administer justice, the courts also unavoidably make
law in which they are not supposed to. They also make law, in the effect that they lay down rules
that will be used in future cases, this is known as the doctrine of precedent. "Case law is built up out
of precedents, and a precedent is a previous decision of a court which may, in certain circumstances,
be binding on another court in deciding a similar case. This practice of following decisions is
derived from custom, but is a practice which is generally and closely observed." C.J. Parker once
stated (Mirehouse v. Rennel –1833) "Precedent must be adhered to for the sake of developing the
law as a science." This is also known as 'judge made law'. Many judges today claim that one of their
many roles is to observe and interpret law and not 'make' it. Once a decision is made by
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Judicial Activism: The Wade V. Roe Case
Judicial activism is based on political or personal considerations. Also, Judicial activism. allow
judges to arrive at decisions and based on personal and political considerations, as opposed to a law.
For many decades, women have advocated for fair treatment, and to hold the same position and jobs
that men do. For a considerable number of woman
, the Wade v. Roe case has signified a appropriate
use of judicial activism, as well as an stepping stone for women's rights and equality.
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Judicial Restraint Vs. Judicial Activism
The differences between judicial restraint and judicial activism can be very broad, therefore it is
paramount to understand what these two philosophies mean prior to explaining its differences.
Judicial restraint and judicial activism has led to a great debate over the years which basically
revolves around the interpretation of the U.S. Constitution and the laws. Judicial restraint refers to
the philosophy in which judges should not have the authority or discretion to interpret the law in
whatever way they want, instead they should interpret the law the way that the legislators and the
U.S. Constitution intended the law to be interpreted because most judges are non–elected officials.
[1 legal] However, many judges disagree with this because
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Judicial Activism Vs. Judicial Restraint
Judicial Activism
Introduction
When researching for texts written about Judicial Activism, one comes across various authors who
wrote and published works about the topic. These works are mainly journals, pamphlet, brochures,
newspapers, magazines, and articles. Before delving into the subject matter, Judicial Activism, it is
important first to understand what judicial philosophy means. Judicial philosophy can be described
as the way that a judge cognizes and interprets the law. Even though laws are universal, they should
be applied to particular cases with unique conditions. To conduct this, the law is interpreted by the
judge, who determine its meaning and at times the intention of people who wrote it. Among the
major types of judicial
...show more content...
Judicial activism critics in America claim that the law courts mustn't assume the authority to
intervene in issues that involve ethical and political decisions, thereby disregarding the democracy's
fundamental principles. Contrariwise, a court is, on occasion, considered exaggeratedly restrained
and passive the moment it refrains from defending the rule of law at large and individual liberties.
This paper's goal is to look at the various dimensions of judicial activism, for instance, its history
and the cases supporting it. It will also look into how judicial activism plays a role in the
government, and why there is a necessity for more judges who are activists. The paper will also
compare judicial activism with judicial restraint as well as explain which philosophy among the two
is more preferable.
Judicial Activism
As stated earlier, judicial activism is when a court doesn't confine itself to an interpretations of laws
that is reasonable, but rather create laws. Thus, judicial activism refers to judicial rulings assumed to
be based on political or personal considerations instead of on the existing law. As seen, the judicial
activism essence is when a decision of a judge in a case is grounded upon her political or personal
social beliefs, instead of interpreting the law as it is. Basically, the judge alters the law. Rather than
saying a certain behavior
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Judicial Restraint Analysis
According to the advocates of the judicial restraint and activism, a right to privacy reflects upon the
Supreme Court Justices' interpretation of the Framer's intents in the United States Constitution. The
judicial restraint generally refers to the judge's decision based on the laws written by the Framers
and their intent of it. Since the Framer did not specify the rights to privacy, the legal approach does
not allow the Supreme Court Justices to create the right to privacy. Unlike the judicial restraint, the
judicial activism takes on the opposing side and they believe beyond the written laws by the
Framers. The Supreme Court Justices would mainly express their personal views besides the
jurisdiction under the Constitution
. Therefore,
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Judicial Activism And Judicial Restraint
Judicial Activism– refers to judicial rulings suspected of being based on personal or political
considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint.
B. Judicial Restraint– is a theory of judicial interpretation that encourages judges to limit the
exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are
unconstitutional, though what counts as unconstitutional is itself a matter of some debate. C.
Precedent– The earlier judicial decisions that become guides in making later judicial decisions D.
Majority Opinion– A written statement explaining a court's official decision E. Dissenting Opinion–
A statement written by one or more justices
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So a couple kids decided to wear the black armbands to school. The Des Moines school district
found out about the protest. Since they created the protest the district made a policy to make the kids
remove the armbands. And the students the chose to still wear them would be punished by being
suspended. And two of the kids did, Mark Tinker and Christopher Eckhardt so they were suspended.
The students felt their first amendment rights were being violated. Iowa civil liberties union went to
the family and the American Civil Liberties Union agreed to get involved and help with the lawsuit.
And the united states district court ended up siding with the school and the united state court of
appeals for the eighth circuit tied in their decision so the school decision stayed as is. The case was
then taken to the supreme court. The court's decision was 7–2 and the kids won the
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Judicial Restraint Essay
Judicial restraint and judicial activism are two opposite approaches to the checks and balances
system found within the legal system of the United States. Although both approaches are used to
prevent the use of any fraudulent power within the government, judicial activism is the
interpretation of the Constitution via contemporary traditions and values. Judicial restraint, on the
other hand, limits the power to strike down a law by faithfully applying precedent. This polarity may
be difficult to distinguish between, however three methods have been developed to easier analyze
which approach has been used. Based on the actions of the Supreme Court, if the outcome of a case
upholds laws and statues, upholds stare decisis, and strictly adheres to the Constitution, the judge
used judicial restraint. Moreover, judicial activism would not necessarily uphold the laws and
statues, stare decisis, or adhere to the Constitution. Therefore, the most distinguishing factor that
sets these two apart is their ability to influence a change to public policy; judicial activism is a direct
form of public policy change.
The distinction between judicial activism and judicial restraint may seem very prominent and clear
cut now, yet the 2010 McDonald v. the city of Chicago case arguably uses both approaches. On June
28th, 2010, the Supreme Court ruled (5–4), that the Second Amendment to the U.S. Constitution,
which guarantees "the right of the people to keep and bear Arms," applies to state and local
government as well as to the federal government (BRITTANICA). The suit was filed to challenge
the provisions of a 1982 Chicago law that generally banned the new registration of handguns and
made registration a prerequisite to owning a firearm. This case is the perfect example to showcase
how judicial restraint and activism both act on the outcome of a case.
The 2010 McDonald v. the city of Chicago case upheld precedents established on the Duncan
standard– a more inclusive test based on the Duncan v Louisiana case– compelled the court to
reject, on stare decisis, the main defendant's argument. The Supreme Court adhered strictly to the
Constitution, however, and based their outcome on the fourteenth amendment. This amendment,
focused on
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Judicial Activism In Canada
In common law, judges interpret the law and judge apply it based on precedent from previous cases;
compared to civil law which focuses on written legislature. In Canada, judges are given the chance
to be activists. If a judge believes a citizen's rights, under the Canadian Charter of Rights and
Freedoms, are being violated, they are given the power to rule against the unconstitutional law made
by the elected branches of government; this concept is referred to as judicial activism (Hausegger,
Hennigar, & Riddell, 2015, p. 123). Judicial activism ensures the individual rights of each person
are upheld, but the concept is controversial. Judicial activism is problematic because it awards an
authoritarian level of power to unelected judges, which goes against Canada
's democratic ideology
where elected officials decide and vote on the laws (Cameron, 2009, p. 27). I argue that judicial
activism should not be a part of Canada's judicial process because it gives too much power to the
courts and disrupts the democratic process of
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The three branches were created to separate authority in government, so that the no one group used
their power to exploit Canadians. The legislative and executive branches of government are
responsible for turning bills into laws; the judicial branch is responsible for interpreting and
applying these laws. Judicial activism diminishes the purpose of the separate branches of
government and the traditional process of law making.
It is anti–democratic to give power to judges when they contradict the decisions made by the elected
Canadian government officials (Cameron, 2009, p. 23). Judicial activism argues to protect
individuals Charter rights, but the reading in of sexual orientation directly goes against the Charter
(Cameron, 2009, p. 26). Judicial activism aims to protect individual Charter rights, but can instead
end up going against the
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Judicial Activism Vs. Judicial Restraint The debate between Judicial Activism and Judicial Restraint
really grabbed my attention. Judicial Activism and Judicial Restraint are two different ways to
interpret the constitution and its laws. Both interpretations have their own strengths and weaknesses,
which is why it is so hard to come to a final decision of which is acceptable and which is not (in
most cases). While at the debate I didn't realize how many cases have boiled down to these two
concepts. There have been many cases ended up being decided by both interpretations. I believe
Judicial Activism should be removed from the Supreme Court
. The Original definition of Judicial
Activism is defined as a philosophy of judicial decision–
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Stare Decisis plays a large role in Judicial Restraint. Stare Decisis is sticking to an established ruling
that was handed down by past judges or jurors. A form of judicial restraint is called the political
question doctrine, and it is significant in understanding this interpretation of the law. The political
question doctrine is when a court acknowledges that the constitution is violated but does not decide
to act. There are plenty of examples of Judicial Restraint throughout our history but the one that
stands out the most in my mind is Gore Vs. Bush. In this case the Florida supreme courts methods of
recounting the presidential ballots was considered and ruled as having violated the Equal Protection
Laws which is under the fourteenth amendment in a presidential election. Everyone seems to know
that something wrong was done, but no one really understands what happened. Before this debate I
didn't realize that this was an example of Judicial Restraint. And this is why I caint agree with either
interpretations of the law. Both of these interpretations are ways to go around the laws already set in
stone. I believe that there should be some type of law created to protect the constitution. I do not
agree with either interpretations and I believe that they are both wrong. These are examples of flaws
in the constitution that should be dealt with. As I listened to this debate I realized and understood
more and more
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Judicial Restraint Vs Judicial Activism
As a student at CSUN I sadly admit I had no idea what Judicial Activism was, along with Judicial
Restraint. I don't recall on learning any of this in high school or in any time of my life, that says
mush about our country, furthermore, it was very interesting researching about these certain terms. I
did come across some articles explaining the main tenants of both Judicial activism and Judicial
restraint. Basically, for Judicial Restraint it's the belief that the legislatures make the decisions and
for the Judicial Activism it's the belief that a Judge should make the decision. Both Approaches
differ philosophically in different ways. Such as judicial activism
"is a judicial philosophy in which judges make bold policy decisions, even charting
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Judicial Restraint/Activism Essay
Judicial Restraint/Activism Justice William J. Brennan, Jr. said it the best in his speech to the Text &
Teaching Symposium, "We current Justices read the Constitution in the only way that we can: as
Twentieth Century Americans." Justice Brennan also called the Constitution a fundamentally public
text and called for its use to resolve public issues. If that is true, then the document must be
interpreted from today's perspective – Judicial Activism. However, using only that approach would
be saying that the work of the original framers was mute. This document is over two hundred years
old and still very relevant to today's society. In my opinion, the court needs to find a fine line
between activism and restraint or intentionalism
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Marshall said that Barron had no legal recourse under the provisions of the 5th Amendment because
"the Bill of Rights did not apply to the states and that was that". This remained until the "Civil War
Amendments" were passed in 1865 and 1868. It was Justice Brennan's opinion that it was then that
the Constitution could be "interpreted to require application of the first eight amendments to the
states." Barron v. Baltimore was also an excellent example of judicial restraint or original intent.
Marshall interpreted the language of the 5th Amendment exactly as the framers had intended it – the
Bill of Rights did not apply to the states. Attorney General Edwin Meese III, believed "original
intent" to be the best method for interpretation of the Constitution. He supported that belief with the
following statement made by Justice Story: In construing the Constitution of the United States, we
are in the first instance to consider, what are its nature and objects, its scope and design, as apparent
from the structure of the instrument, viewed as a whole and also viewed in its component parts.
Where its words are plain, clear and determinate, they require no interpretation. …Where the
words admit of two senses, each of which conformable to general usage, that sense is to be adopted,
which without departing from the literal import of the words, best harmonizes with the nature and
objects, the scope and design of the instrument. The concept
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High Level Of Judicial Activism
The American people have high expectations for the government, especially our court system. The
courts are expected to solve disputes through enforcing laws set forth by our legislators, and to do so
without bias. Typically, the courts fulfill their purpose in this way, but the task becomes much harder
when there is no precedent, or when a changing culture causes backlash to precedent. Furthermore, a
vague law or ideological question may also make an orderly dispute resolution a more difficult task
than the courts were designed to handle. As the constrained court view would suggest, these are
hurdles the courts must overcome in order to solve disputes and keep the integrity of the court
system. According to this view, judges don't
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This occurs as a court is able to overcome cultural constraint, but the constrained court view insists
that this cultural constraint is hard to overcome as the courts take into account the opinions of the
elite and the public in all of their decisions. All in all, the dynamic court view suggests that none of
these constraints: doctrinal, institutional, or cultural, are present. Meanwhile, the constrained court
view suggests that at least one of these constraints is present in order to ensure the promise of the
courts to solve disputes while also respecting public opinion, the other branches of government, and
doctrine. On balance, the case of Obergefell v Hodges illustrates the constrained court view,
suggesting that the Supreme Court is likely to be constrained when at least one of the constraints
mentioned above is in tact. A doctrinal constraint can be met through specific laws, an institutional
constraint can be met through inactive or ineffective legislative backlash, and finally, a cultural
constraint can be met through the court's adherence to cultural trends. The case of Obergefell v
Hodges began in early 2014 when a same–sex couple in Ohio believed their Constitutional rights
were being infringed upon. The couple included James Obergefell and John James who were legally
married in Maryland in 2013. Mr.James became terminally ill and died, but his
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Judicial Injustice: A Case Of Judicial Activism
This appears to be a case of judicial activism, mainly because it affects less the one percent of the
United States population. If this was judicial restraint the judge would have hesitated and waited
until the right answer was blatantly obvious before ruling on it. This is a case of ideology because
the idea that people should be able to donate is much as they like was obviously the case in the
ruling judge. This could be a positive outcome for campaign finance and this could be a negative.
You have to look at it from both sides, but since less than one percent is really affected by this, I am
going to say that it is negative because now the rich people can move effectively fund who they
want in office and the non–rich person is still limited
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Judicial Activism In American Society
Judicial activism in American society has shaped legislation as interpreted by the view of justices in
cases that have challenges current law. The practice of judicial activism has allowed judges to
essentially create new bias legislation out of existing laws that may not possess explicit standards. In
other words, existing law is expounded upon with personal or political consideration rather than
what the law states and following it as specified. Moreover, judicial decisions usually determine
future rulings that have resounding effects on society (Stephenson, 2013). However, does judicial
activism depict good or bad judiciary practices? It does not take much to understand that partiality
would exist in the answer to that question as each individual may answer
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Therefore, in my view point judicial activism is good and bad. For instance, two cases come to mind
Brown v. Board of Education of Topeka (1954) where in a landmark ruling the supreme court
ordered the desegregation of schools and Cooper v Arron a case addressing desegregation delays. In
Brown v. Board of Education of Topeka (1954), justices utilized judicial activism verses adhering to
the letter of the law to undo decades of social injustice and order the vigorous desegregation of
public school. By today standards, most would consider this example of judicial activism clearly
good and heroic. However, challenges addressed to the courts concerning delays in the
implementation of school desegregation processes in Cooper v. Arron (1958) exemplify poor
judicial activism because the court attempted to claim it had the final say over all other entities.
Specifically, the justice declared that courts constitutional interpretation was superior to the
legislative and executive branch of government. However, the constitution limits power on all
branches of government and each has the power to make changes in a deliberate manner.
Essentially, the court abused it power by not abiding by
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Judicial Activism Research Paper
Judicial activism is when decisions or positions are suspected of being based on personal interests or
political stances rather than law. It is often used as the antonym of judicial restraint. Supporters of
judicial activism believe that judges assume a role of independent policy makers going beyond their
traditional role of interpreting the Constitution (1). On the other hand, critics of judicial activism
believe that it gives the judicial branch more power than was intended in the constitution to be able
to make policies.
A lot of our current policies are resultant from decisions made by creative interpretation of the
constitution by our Supreme Court. As an example, Roe v Wade (1973) overturned a Texas abortion
law and making abortion legal in the United States on a federal level, based on the right to privacy.
This effectively invalidated all state laws limiting access to abortions during the second trimester.
The Supreme Court based their decision on the Fourteenth Amendment with the Due Process clause
– a
...show more content...
The plaintiffs argued that the "separate but equal" laws in place were not equal nor could they be
made equal, and therefore don't follow the laws. Again, this one was based largely on the Fourteenth
Amendment, the equal protection guaranteed by it (3).
Judicial restraint is more akin to "word of the law" basing decisions heavily on precedent and
interpreting laws very literally. It is seen as a way of maintaining stability by making only small,
incremental changes in interpretation of the Constitution, relying heavily on stare decisis,
(precedent) and declining to rule in politically controversial cases, whether or not they agree that
there has been a possible violation of the Constitution. Judicial restraint can be used as a form of
activism though, in declining to hear a claim they disagree with personally
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Judicial Activism
engaging in illicit drug dealing, not to define standards of medical practices (Justia US Supreme
Court 2006). The Court affirmed the Ninth's ruling against Attorney General Ashcroft. Justice Scalia
dissented and wrote. "I hereby determine that assisting suicide is not a 'legitimate medical purpose"
(Justia US Supreme Court 2006). So the same conservatives on the Bench that favor state's rights
thought it was legitimate for one officer of the Executive Branch to define the laws practice. Neither
with a claim a textual Constitutional evidence, yet activist driven for their ideological reasoning to
achieve the desired results. Visa Versa Too In District of Columbia v. Heller (2008), it was ruled the
Second Amendment protects the right
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President Obama framed judicial activism as opposing the "will of Congress," while conservatives
have tended to focus more on the judicial nullification of state laws (Whittington 2014). They all
prefer to be activist jurist when they believe that the legislature has made a constitutional error, and
they are willing to override minorities on the bench or political opposition in order to compel their
interpretations of constitutional requirements. (Whittington 2014). If anything has been proven here,
is activism is not a philosophy. Activism is only a degree of evaluation in deciding cases. Judicial
Review results in a spectrum of a simple yes or no in restraint judicial decisions, to almost anything
else in activism judicial
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Advantages Of Judicial Activism
Judicial activism is referred to as judicial rulings that are suspected of being passed based on biased
intention of personal opinion about the existing laws. It is a means of providing justice to the
disadvantageous and aggrieved citizens. The critics of judicial activism inculpate that it increases
the power of the elected branch of authority or appointed judges to damage the ruleJudicial Activism
Judicial activism is referred to as judicial rulings that are suspected of being passed based on biased
intention of personal opinion about the existing laws. It is a means of providing justice to the
disadvantageous and aggrieved citizens. The critics of judicial activism inculpate that it increases
the power of the elected branch of authority
...show more content...
These not only introduce new interpretations of the law but also guide new information to light.
Judicial activism also takes into account the Constitutional law and showcase it in a relevant way
that can be gone through by public, even if it fails. It cannot disintegrate the barriers of
communication between administrative jurisdictions nor within the bureaucratic ranking but it can
influence the interest and wisdom of the nationals on the contemplation of administrators not only to
safeguard their rights but also to guide the matters of public
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Judicial Activism vs. Judicial Restraint Essay
Judicial Activism vs. Judicial Restraint Judicial activism and judicial restraint are two opposing
philosophies when it comes to the Supreme Court justices' interpretations of the United States
Constitution; justices appointed by the President to the Supreme Court serve for life,and thus whose
decisions shape the lives of "We the people" for a long time to come. Marbury v. Madison, one of
the first Supreme Court cases asserting the power of judicial review, is an effective argument for this
power; however, it lacks direct textual basis for the decision. John Marshall managed to get away
with this deficiency because of the silence on many issues and the vague wording of the
Constitution. Marshall was also the first to interpret the
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However, those that favor judicial restraint on the other hand, and thus favor the status quo and the
strict construction of the Constitution are conservatives and Republicans. Two landmark Supreme
Court decisions that strictly interpreted the Constitution for its literal meaning were Dred Scott v.
Sanford and Plessy v. Ferguson. In the Dred Scott case, the Supreme Court ruled that African
Americans did not have the right to sue for their freedom, since they were seen strictly by the law as
property and not even citizens of the United States. As well, in Plessy v. Ferguson the Court ruled
that segregation of public schools was not unconstitutional, even though African Americans were
still seen as equal citizens due to the 14th Amendment to the Constitution ("separate but equal").
However, this particular case was then overturned by Brown v. Board of Education, Topeka, Kansas
in 1954. The Brown decision, unlike that of Plessy v. Fergusion and Dred Scott v. Sanford expressed
judicial activism and ruled racial segregation unconstitutional. Many will protest that the people do
not elect the Supreme Court Justices and therefore the Supreme Court should not have the power
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