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Judicial Restraint: A Form of Positive Activism

Judicial restraint is a substantive or procedural approach to the judicial review’s exercise. As a procedural doctrine, this principle guides the honorable judges to abstain from making decisions on legal matters. In this guide, I will try to give a clear idea about the concept of judicial restraint and discuss judicial restraint vs judicial activism.

Details Of Judicial Restraint

In American legal theory and case law, Judicial restraint has a long historical background. In the Fletcher vs. Peck (1810) case, the U.S. Supreme Court’s decision was, Judges should strike down laws only if they found a clear and strong conviction of unconstitutionality. The main purpose of judicial restraint is to authorize the legislature and executive organ greater freedom to prepare a policy.

It is a theory of judicial interpretation that determines the process of interpreting laws. In general, judicial restraint is the concept that a judge can’t inject their preferences into legal rulings and proceedings.

Judges are told to exercise judicial restraint if they are hesitant to drop laws that are not unconstitutional. This theory is observed as contrary to judicial activism.

While deciding questions of constitutional law, judicially restrained adjudicators believe it is necessary to understand the legislative intent, the plain meaning rule, stare decisis, and a textualist view of the judicial interpretation.

According to judicial restraint advocates, the judges don’t have the jurisdiction to make rules and laws like the policymakers. The opponents of this theory said activism is necessary when the government’s other branches don’t take action to bring social change.

There are several doctrines to promote procedural restraint in the U.S federal courts. Shortly, the courts have the right to interpret the law and shouldn’t intervene in policymaking.

The honorable judges should try to determine cases based on the original intent of those policymakers who wrote the constitution and precedent (judgment of earlier issues). The court shouldn’t interfere in the process of making a policy.

Benefits Of Judicial Restraint?

Judicial restraint ensures it respects self-government; at the same time, it constitutionally protects the liberty to create laws – this is the foremost benefit of judicial restraint.

However, judicial restraint also can protect liberty from making any laws against abstract notions. Moreover, this reduces the search for original meaning for certain cases at the highest level of generality.

In Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review book, it is stated that – “judicial restraint makes sure the historically inherited restraints on current majorities do not exist.” Besides, the constitution’s original public meaning offers a clear answer regarding the particular event present in a case.

Restraint, on the other hand, for any flexibility that can exist in the constitution, reduces the pressure on the judiciary. Instead, judicial restraint focuses on the effect of originalism, as well as on the counteracts.

But judicial restraint also has some negative consequences. For example, – when the court starts exercising too much restraint, then the chances are they end up allowing the person to execute. A person can do this even though the law’s motive violates the rights of the convicted person.

At the same time, the Supreme Court they are referred to does not make any decision, which is another downside.

However, since the judicial system balances and prevents the 3 branches of government; hence they can’t misuse their powers.

In addition, judicial restraint ensures the balance among the three organs of the government (judiciary, executive, and legislative body). In this case, the court and judges inspire reviewing an existing law rather than altering the current regulation.

In Judicial restraint, the court should advocate all the acts of the state legislatures and the Congress unless they are contravening the rules of the constitution. Besides, the judges can use their power to rectify any injustice in judicial activism, especially when other constitutional bodies are not responding.

Final Words

Generally, judicial restraint is a concept of judicial interpretation that encourages judges to control the exercise of their power (own). It means judges should hesitate to strike down any articles or laws unless they are irrelevant to the constitution.

This principle ensures that judges aren’t using their discretionary power to alter or interpret the regulations unless they have a solid ground of inconsistency. So, this is a form of positive activism.

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