Judicial Branch In The 20th Century
"[The Judicial Branch] may truly be said to have neither FORCE nor WILL, but merely judgment” Hamilton explained when analyzing the Judiciary’s initial intent. Article 3 section 1 of the Constitution grants the Supreme court “The judicial Power of the United States.” this power can be given to inferior courts such as circuit and district courts as “Congress may from time to time ordain and establish.” Later, in article 3 section 2, the Judicial branch is granted power that “extend[s] to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” The Judicial branch has explicit power to interpret the intent of past laws, treaties made, and
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the constitution. This stanza was later defined by the 11th Amendment where “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” In other words, Federal courts can reject hearing cases against the states. This raises the question if the court has the power to manipulate the constitution through their rulings. Some would have an ideology similar to Thomas Jefferson’s where he stated, “To take a single step beyond the text would be to take possession of a boundless field of power.” On the other hand, Oliver Wendell Holmes, Jr., wrote in 1914: “The provisions of the Constitution are not mathematical formulas….They are organic, living institutions.” This paints the picture of a more flexible constitution that can be redefined as times change to coincide with the American people's values.
The constitution was created based on the colonists fear of Great Britain's parliamentary system which did not grant the judicial branch power to check the constitutionality (Judicial review) of the merged executive and legislative body. This gave the majority body in parliament power to pass legislation without the judicial branch affirming that it coincides with the Magna Carta. Great Britain didn’t and still today does not have a written constitution but merely a rule of law which is subject to change. This is much like how congress passes bills which are extensions of law under the constitution in the US. The colonists had a fear of a government tyranny that quickly made legislation off morals of the time. This lead to the social contract among the colonists to form a document that would stand the test of time. under the supremacy clause provided in article 6 section 2 of the constitution, the constitution was given authority of as the supreme law of the land. George Washington, when discussing the constitution, stated, “If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed.” The founders along with President Trumps supreme court nominee believe congress should be the body to pass legislation instead of the court making broad steps in their interpretations. Neil Gorsuch, when remarking on his nomination to the supreme court, stated, “I respect [...] the fact that in our legal order it is for Congress and not the courts to write new laws.” In federalist paper 78, when Hamilton explained the theory of an independent Judiciary to the people of new york, he stated that “The judiciary[...] has no influence over either the sword or the purse.” In other words it is not able to make laws and does not control the bureaucracies of the executive. Hamilton is saying the Judiciary is not a branch to fear because it does not have any power of force through the sword or the purse. All the Judicial branch can do is interpret. Although they may not have any power of force, the judicial branch has power to skew interpretations from their initial intent. Antifederalist 78 under the pen name Brutus argued against Hamilton’s paper saying, “there is no power above [Justices] that can control their decisions, or correct their errors.” Brutus goes on to explain “In England the judges are . . . subject to have their decisions set aside by the house of lords, for error . . . But no such power is in the legislature.” At the time, it seems the founders agreed the judiciary is not to fear because it can merely interpret. Over time the mindset of the Judiciary has shifted from the original textualist view of judicial restraint where Justices shouldn’t interpret based on what is moral or proper for the time, but by what is granted by the constitution. Over time, some Justices have adopted a Judicial activist mindset based more on the precedent it would set and the consequences of their rulings while still taking into consideration past rulings and the constitution.
Judicial activism was beginning to be adopted in the early 1900’s, through the Warren court in the 50’s and 60’s and furthermore in the Burger court in the 70’s.
In this time period under the Warren court, many cases were interpreted under a judicial activist mindset. One of these court cases that arose at this time was Griswold v. connecticut that addressed the use of birth control which had been illegal at the time. The use of birth control was illegal under the Comstock law of 1873 that made it a “crime to sell or distribute materials that could be used for contraception.” The Supreme Court ruled 7-2 that the constitution supports the use of birth control. The bill of rights (the first 10 Amendments) does not explicitly mention “privacy” but Justice William O. Douglas in writing the majority opinion, legalizing the use of birth control, stated the constitution does give guidance to the interpretation on the right to privacy. “The Fourth Amendment explicitly affirms the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the
people.’”
Justice Douglas is saying the constitution states people have a right to privacy in the things they own in the Fourth Amendment. He also points out that you would have to self incriminate if you were to give up private matters which would be in violation of the Self incrimination clause in the Fifth Amendment. Justice Douglas then clarifies that the Ninth amendment states if rights are not explicitly given to the national government, they belong to the states and the states people. Griswold v. Connecticut is a classic example of Judicial activism at work where the court made a decision overturning the past Comstock law. This case set a precedent for future cases such as Eisenstadt v. Baird under the Burger court which legalized contraception to individuals who were single. For the majority opinion, Justice William J. Brennan, Jr. stated, "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion” (Eisenstadt v. Baird). Later in Roe v. Wade women were granted the right to abortion which was protected under privacy. When one statute is overturned by the court it has a lasting effect that reverses the trajectory of the court’s decision making for as long as the new statute stands. Justices try not to overturn previous statutes because they set a precedent through stare decisis. This term says that statutes should stand instead of being overturned to preserve the prestige of the court as being dependably stable and secure. Although the court made its decision off of underlying constitutional principles, it was driven off of morals. Justice Black warns that “The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges’ views of fairness, reasonableness, or justice.”
the constitution. This stanza was later defined by the 11th Amendment where “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” In other words, Federal courts can reject hearing cases against the states. This raises the question if the court has the power to manipulate the constitution through their rulings. Some would have an ideology similar to Thomas Jefferson’s where he stated, “To take a single step beyond the text would be to take possession of a boundless field of power.” On the other hand, Oliver Wendell Holmes, Jr., wrote in 1914: “The provisions of the Constitution are not mathematical formulas….They are organic, living institutions.” This paints the picture of a more flexible constitution that can be redefined as times change to coincide with the American people's values.
The constitution was created based on the colonists fear of Great Britain's parliamentary system which did not grant the judicial branch power to check the constitutionality (Judicial review) of the merged executive and legislative body. This gave the majority body in parliament power to pass legislation without the judicial branch affirming that it coincides with the Magna Carta. Great Britain didn’t and still today does not have a written constitution but merely a rule of law which is subject to change. This is much like how congress passes bills which are extensions of law under the constitution in the US. The colonists had a fear of a government tyranny that quickly made legislation off morals of the time. This lead to the social contract among the colonists to form a document that would stand the test of time. under the supremacy clause provided in article 6 section 2 of the constitution, the constitution was given authority of as the supreme law of the land. George Washington, when discussing the constitution, stated, “If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed.” The founders along with President Trumps supreme court nominee believe congress should be the body to pass legislation instead of the court making broad steps in their interpretations. Neil Gorsuch, when remarking on his nomination to the supreme court, stated, “I respect [...] the fact that in our legal order it is for Congress and not the courts to write new laws.” In federalist paper 78, when Hamilton explained the theory of an independent Judiciary to the people of new york, he stated that “The judiciary[...] has no influence over either the sword or the purse.” In other words it is not able to make laws and does not control the bureaucracies of the executive. Hamilton is saying the Judiciary is not a branch to fear because it does not have any power of force through the sword or the purse. All the Judicial branch can do is interpret. Although they may not have any power of force, the judicial branch has power to skew interpretations from their initial intent. Antifederalist 78 under the pen name Brutus argued against Hamilton’s paper saying, “there is no power above [Justices] that can control their decisions, or correct their errors.” Brutus goes on to explain “In England the judges are . . . subject to have their decisions set aside by the house of lords, for error . . . But no such power is in the legislature.” At the time, it seems the founders agreed the judiciary is not to fear because it can merely interpret. Over time the mindset of the Judiciary has shifted from the original textualist view of judicial restraint where Justices shouldn’t interpret based on what is moral or proper for the time, but by what is granted by the constitution. Over time, some Justices have adopted a Judicial activist mindset based more on the precedent it would set and the consequences of their rulings while still taking into consideration past rulings and the constitution.
Judicial activism was beginning to be adopted in the early 1900’s, through the Warren court in the 50’s and 60’s and furthermore in the Burger court in the 70’s.
In this time period under the Warren court, many cases were interpreted under a judicial activist mindset. One of these court cases that arose at this time was Griswold v. connecticut that addressed the use of birth control which had been illegal at the time. The use of birth control was illegal under the Comstock law of 1873 that made it a “crime to sell or distribute materials that could be used for contraception.” The Supreme Court ruled 7-2 that the constitution supports the use of birth control. The bill of rights (the first 10 Amendments) does not explicitly mention “privacy” but Justice William O. Douglas in writing the majority opinion, legalizing the use of birth control, stated the constitution does give guidance to the interpretation on the right to privacy. “The Fourth Amendment explicitly affirms the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the
people.’”
Justice Douglas is saying the constitution states people have a right to privacy in the things they own in the Fourth Amendment. He also points out that you would have to self incriminate if you were to give up private matters which would be in violation of the Self incrimination clause in the Fifth Amendment. Justice Douglas then clarifies that the Ninth amendment states if rights are not explicitly given to the national government, they belong to the states and the states people. Griswold v. Connecticut is a classic example of Judicial activism at work where the court made a decision overturning the past Comstock law. This case set a precedent for future cases such as Eisenstadt v. Baird under the Burger court which legalized contraception to individuals who were single. For the majority opinion, Justice William J. Brennan, Jr. stated, "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion” (Eisenstadt v. Baird). Later in Roe v. Wade women were granted the right to abortion which was protected under privacy. When one statute is overturned by the court it has a lasting effect that reverses the trajectory of the court’s decision making for as long as the new statute stands. Justices try not to overturn previous statutes because they set a precedent through stare decisis. This term says that statutes should stand instead of being overturned to preserve the prestige of the court as being dependably stable and secure. Although the court made its decision off of underlying constitutional principles, it was driven off of morals. Justice Black warns that “The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges’ views of fairness, reasonableness, or justice.”