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In the United States of America, the Constitution has always been a document which upholds and protects the rights of the individual citizens. However, the country’s Founding Fathers wrote the Constitution in 1776 using broad and general terms, which has led to debate and disagreement regarding whether the Constitution was written to be interpreted by Supreme Court judges in a literal and narrow sense, or whether it was meant to evolve and be interpreted with a consideration of society’s progress and change. The belief which states judges should have no say in the Constitution’s implications is titled strict constitutionalism, or Judicial Restraint. The philosophy titled living constitutionalism, or Judicial Activism, states the Constitution was written to evolve over time, and Supreme Court judges have the right to decide what rights fall under the Constitution, though the rights aren’t specifically stated in the document. The Living Constitutionalism view believes in the power of Judicial Review, meaning judges have the right to interpret the law. It has been said that this school of thought is undemocratic because the justices aren’t elected by the people, yet they can determine what is or isn’t constitutional, in turn thwarting the intentions of the government. However, allowing Supreme Court judges to apply the power of Judicial Review is not only fair, but necessary for an advancing society, as well as freedom-allowing.
In order to understand the practice and applications of Judicial Review, it is vital to know how the Supreme Court system works. Supreme Court judges are nominated by the current President of the United States when a seat is needed to be filled. Once the potential judge is elected by the President, the justice must pass a background check by the Senate Judiciary Committee, in order to make sure they have a clear mindset and past. Lastly, the nominated judge goes to the entire Senate in order to be approved. After passing these steps, the justice serves for a lifetime. Though Supreme Court judges aren’t directly chosen by the people, they are chosen by Presidents of the United States, and reviewed by the Senators, who are elected by the citizens. It’s important to realize the fact the United States isn’t a democracy, as this process illustrates, but a federal republic. Although Judicial Review may be considered undemocratic because justices are not directly elected by the people, it doesn’t necessarily go against a federal republic government.
In the United States, granting judges the power of Judicial Review has proven countless times to be a fair solution to Supreme Court cases. After the power of Judicial Review was first permitted in 1801 by the ruling of Marbury v. Madison, the Supreme Court was able to interpret the Constitution in order to apply it to modern issues. A famous court case, Nixon v. United States, in 1974, is an example of how Judicial Review allowed the Supreme Court to make a fair decision for citizens and the United States government alike. In the ruling of President Nixon against the United States of America, the central question brought forward regarded whether it is constitutional for the President to hide certain personal items because of his Executive Privilege; or, in simpler terms, whether the President is above the law. Due to the Supreme Court justices’ power of Judicial Review, the court was able to use the Constitution’s Fifth Amendment Due Process Clause, and, though the Constitution doesn’t include a specific reference to whether the President is above the law, the Supreme Court justices ruled it was unconstitutional for the President of the United States to use his Executive Privilege to hide things such as voice tapes which may well be evidence in the criminal courts. This ruling is very important to the United States because it set a precedent, or case law, stating the President cannot disregard the law of the land without consequences. Due to the power of Judicial Review, judges are able to interpret the Constitution to make sure rulings are fair for all parties involved.
In the Supreme Court, the power of Judicial Review is necessary because it allows the United States of America the ability to change and recognize new issues and human rights violations. In 1776, when the Constitution was written, issues such as racial segregation were not seen as being “wrong” or “unfair,” simply because the ideology of the time didn’t see African Americans as being people, but property. Less than two hundred years later, in 1954, the Supreme Court case of Brown v. Board of Education proved times had changed, because the case revolved around the constitutionality of racial segregation. The ruling of the court overturned the precedence set by Plessy v. Ferguson in 1896, which upheld the mindset of “separate but equal.” Due to the evolving mindset of society, issues today are issues which were never even considered when the Constitution was written. The Fourteenth Amendment, which the court used in the reasoning, does not specifically say anything regarding racial segregation. However, because of the judges’ power of Judicial Review, the Supreme Court stopped a human rights violation at a federal level. Without Judicial Review and Living Constitutionalism, the Constitution of the United States would either not last because of its lack of flexibility, or society would not be able to recognize and enforce human rights at a national level.
The mindset and applications of Judicial Review, or Judicial Activism, allow citizens of the United States individual freedoms. Both Griswold v. Connecticut and Loving v. Virginia involved couples who were being denied their basic freedoms by the state governments. In Griswold v. Connecticut, in 1965, a couple was denied the right to use contraceptives by the state of Connecticut. In the Supreme Court, due to Judicial Review and Living Constitutionalism, it was ruled couples should have the right to privacy within their own homes, therefore allowing contraceptives. The Constitution does not directly say anything about privacy, but without the power of Judicial Activism, Connecticut would still have a ban on the use of contraceptives, which denies freedoms and basic rights. In Loving v. Virginia, in 1967, the constitutional issue of interracial marriage was brought forward. Once again, credited toward the power of Judicial Review, interracial marriage was determined to be constitutional due to the interpretation of the Fourteenth Amendment, and it was concluded not allowing interracial marriage is against people’s constitutional freedoms. Supporters of Judicial Restraint often point out that Judicial Review can contravene with the intentions of elected officials, though, interestingly enough, in both Loving v. Virginia and Griswold v. Connecticut, elected officials were the reason citizens were being denied freedoms. The Supreme Court overruled the actions of the elected officials because the elected officials were denying their citizens independence.
Overall, the beliefs and applications of Judicial Review and Living Constitutionalism have allowed American citizens fairness, societal evolution, and freedom. Without Judicial Activism, the United States Constitution would likely not be compliable enough to last over many centuries, and many human rights would likely not be recognized or given. Furthermore, the United States is a federal republic, not a democracy, so the Supreme Court judges aren’t required to be directly elected by citizens. Although Supreme Court judges may frequently overrule the actions of elected officials, it is often done because the elected officials are violating human rights or freedoms. As Yale Law professor Reva Siegel has said, “The Constitution is neither an agreement that was made by persons long dead, nor is it something that simply reflects the understandings of living Americans. In fact, it’s a living tradition that links the struggles, commitments and beliefs of Americans past, present and future.”
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