Do we need judicial activism to flesh out the vague phrases in the Constitution? This question is truly at the heart of the topic. Do we need judicial activism to protect our rights? What exactly are our rights? While this may seem like a silly or obvious question, it is vitally important in answering this question. How is a court, or a legislature, supposed to draw meaning from such vague phrases as “Due Process of law” or “equal protection” or even “free speech?” While some of the rights guaranteed in the Constitution are quite straight forward, others are so vague as to be almost meaningless; absent some sort of guidance from the courts. But since our Founding Fathers did not put extraneous phrases in the Constitution, each must have some mean-ing. The question is, should it be the courts’ job to flesh out the meaning?
In 1803, in Marbury v. Madison, Chief Justice John Marshall stated that “it is emphatically the province and duty of the Judicial Department to say what the law is.” With this statement, Chief Justice Marshall staked a broad claim of authority for the judicial branch, to define the meaning of the Constitution, and to explain its limits. For the last two hundred years, the Court has been doing exactly that.
Certain phrases in the Constitution are so broad as to have no plain meaning. Even when attempting to clarify the meaning of some terms, the Court itself is vague. For instance, in explaining the meaning of the Due Process Clause, the Court has held it provides “whatever process is due.” This is not an incredibly helpful standard. And so the Court has tried to clarify, on a case-by-case basis, what process is due.
We also need activism to help cover all aspects of listed rights. For instance, ask someone what speech is, and they will likely tell you it is the act of vocalizing, talking. But the Freedom of Speech protected by the First Amendment has been expanded to include the right to wear... [continues]
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