One clear example of judicial activism is from the reading of Humpty Dumpty. In the particular scene we read, Humpty Dumpty discusses with Alice about how words can have many different meanings depended on who is reading it for what reason. This is shown when the passage writes, “‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean--neither more or less.’” Humpty Dumpty is stating this rather …show more content…
gleefully and almost in a sinister way, but to some extent it is similar to how modern day judicial activists interpret law. It could be harsh to assume that they just do not assign meanings to word, but it is possible to change the meaning of words and laws depending on interpretation of law.
The Supreme Court case of DeShaney v. Winnebago County in 1989. The case concerned a child, William DeShaney, who was being watched over by his abusive father. The agreement for the father to retain custody was that a social service agent would check in a couple times a month to make sure that William was okay. The DSS (department of Social Services) agents would check in, but the abuse was hidden everytime. Eventually, William was beaten so badly that he was permanently mentally impaired and had to live the rest of his life with extreme help. The case here is whether or not William had due process concerning how his father received custody. However, the court ruled against William, saying that he was given due process under the fourteenth amendment. The majority ruling stated that it is not about what happens in the process, but rather that any process occurs at all. This is a strict constructionist view, as their is very little interpretation of the fourteenth amendment, and instead understanding the words mostly literally.
The court opinion and dissenting opinion of the supreme court case Roe v.
Wade is a key example of judicial activism and strict constructionism going up against one another. The court opinion ruled that abortion is a constitutional right for every woman, as the fourteenth amendment referencing individual liberty is broad enough to put it under constitutional protection. This is a clear example of judicial activism, as their is no place in the constitution that references abortion, yet it is covered under the constitution. The dissent had a more strict constructionist and originalist (what the founding fathers meant) way of thought, arguing that at the time of the Bill of Rights creation all states had laws against abortion, therefore meaning that the constitution does not protect it. This example truly demonstrates how a case can be made for many different laws to mean what a judge may deem it no matter
what.
Justice Brennan may be right in his decision depending on which legal philosophy you subscribe to. If one were to view it as a strict constructionist, then Brennan would have no real argument. A strict constructionist would argue that the death penalty has been allowed for centuries up until now, and the constitution never put any restriction against it. If one were in addition an originalist alongside a strict constructionist, you could argue that the founding fathers definitely thought it was legal as they would execute people in the 18th century all the time. However, a judicial activist may side with a Brennan, saying that 8th amendment does cover it, arguing that their is new moral precedents. Nonetheless, they would probably have to cite studies and other source to conclude that the death penalty is morally unjust.