Judicial Restraint/Activism Essay

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Judicial Restraint/Activism Justice William J. Brennan, Jr. said it the best in his speech to the Text & Teaching Symposium, "We current Justices read the Constitution in the only way that we can: as Twentieth Century Americans." Justice Brennan also called the Constitution a fundamentally public text and called for its use to resolve public issues. If that is true, then the document must be interpreted from today's perspective - Judicial Activism. However, using only that approach would be saying that the work of the original framers was mute. This document is over two hundred years old and still very relevant to today's society. In my opinion, the court needs to find a fine line between activism and restraint or intentionalism…show more content…
Marshall said that Barron had no legal recourse under the provisions of the 5th Amendment because "the Bill of Rights did not apply to the states and that was that". This remained until the "Civil War Amendments" were passed in 1865 and 1868. It was Justice Brennan's opinion that it was then that the Constitution could be "interpreted to require application of the first eight amendments to the states." Barron v. Baltimore was also an excellent example of judicial restraint or original intent. Marshall interpreted the language of the 5th Amendment exactly as the framers had intended it - the Bill of Rights did not apply to the states. Attorney General Edwin Meese III, believed "original intent" to be the best method for interpretation of the Constitution. He supported that belief with the following statement made by Justice Story: In construing the Constitution of the United States, we are in the first instance to consider, what are its nature and objects, its scope and design, as apparent from the structure of the instrument, viewed as a whole and also viewed in its component parts. Where its words are plain, clear and determinate, they require no interpretation. …Where the words admit of two senses, each of which conformable to general usage, that sense is to be adopted, which without departing from the literal import of the words, best harmonizes with the nature and objects, the scope and design of the instrument. The concept
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