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judicial restraint.
Judicial restraint is the philosophy that judges and justices should defer to written legislation whenever possible, if it is not in conflict with the Constitution. A justice who uses judicial restraint tends to take a narrower view of the Constitution and does not attempt to broaden the definition of Amendments to fit a particular social or political agenda. The opposite of judicial restraint is judicial activism. For more information on the debate between judicial activism and judicial restrain, see Related Links, below.
Judicial restraint. The opposite of judicial restraint is judicial activism.For more information about the controversy over judicial activism and judicial restraint, see Related Questions, below.
An advocate of judicial restrain would support a narrow interpretation of the Constitution, one that adhered closely to the language of the document and his or her belief about the Framers' original intent. Interpretive ideologies such as textualism, "strict constructionism," and originalism are most often associated with judicial restraint. Contextualism, which attempts to infer intent from content, may also result in judicial restraint; however, the degree of subjectivity implicit in this method can also lend itself to judicial activism.
Following precedent or stare decisis.
Doctrinalism relies on the principle of stare decisis.Judicial restraint relies on a narrow interpretation of the text of the Constitution and the Framers' inferred intent in decision-making. If the precedent being relied upon under stare decisis was made using judicial restraint, then adhering to the precedent also involves judicial restraint; if the controlling precedent being used represents an instance of judicial activism, then upholding the precedent also requires a (lesser) degree of judicial activism.The concepts of judicial restraint and judicial activism relate to decisions based on a particular theoretical view of the Constitution and its purpose. Stare decisis relates to consistency in upholding case law, regardless of whether the precedent was originally determined via activism or restraint.
judicial restraint
One example of judicial restraint is Gibbons vs. Ogden. In this case, the Supreme Court held that the power to regulate interstate commerce was granted to Congress by the Commerce Clause of the Constitution. This is seen to be an example of judicial restraint because it restrained its power within congress to regulate interstate commerce and they were not exercising their power outside of any law or ruling. They found no violation in the Constitution from this case.
Judicial restraint follows earlier precedents, tends to uphold existing or new laws, and uses an originalist or constructionalist interpretation of the Constitution (these are literal frameworks).
Judicial restraint....
Judicial restraint
In a 1783 judicial decision of the Supreme Judicial Court of Massachusetts the Constitution of 1780 was interpreted that the phrase "all men are Freemen...." could not uphold slavery. The Legislature did not further clarify the Constitution.