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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 judgemade 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."