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Sample Dissertation Chapter Paper on Judicial Activism or Restraint

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Sample Dissertation Chapter Paper on Judicial Activism or Restraint

Supreme Court history. In accordance to the Due Process Clause as well as the Equal Protection Clause enforced by the Fourteenth Amendment to the United States Constitution the Supreme Court held a 5–4 decision that allowed same sex couples to legally get married. Despite the Supreme Court quoting the constitution many other political and judicial critics such as Rick Perry this action as an instance of the court being playing the activist role by bending the law to favour the LGBT community. Due to the nature of the case it is the aim of this paper to draw a conclusion of weather this was a case of Judicial Activism or Restraint.

On 26thJune 2015 Justice Anthony Kennedy suggested that there is no union as valued as marriage (Vanita,46). In his explanation he saw that LGBT community respect the union and would seek to find its fulfilment for themselves hence asking to be seen equal to the rest of the community who were allowed the right to get married. According to him“The Constitution grants them that right…No longer may this liberty be denied (52)”. According to the Supreme Court justice panel the judgment passed was constitutionally right and all they did was to exercise judicial restraint. In this case, the objectives of the court allowed judicial interpretation that permitted the judges to limit the exercise of their own commandhowever in reference to the constitution.The judges did not formulate a new law or bend any existing law in the Obergefell v. Hodges case on the other hand  they duly applied the rights already guaranteed by the Constitution as stated in the Fourteenth Amendment in reference to the Equal Protection Clause as well as Due Process Clause that existed for about two decades (Wells, 46). Despite this to many others they had it wrong as they have done so in past cases.

In Korematsu v. U.S. (Vile, 311), and Minor v. Happersett(316),cases the supreme court made serious errors in judgment however, despite this anonymous fact perfectly constitutional. The Obergefell v. Hodges case to some critics seems to be a one of several cases the court has had it wrong. This to many has been viewed as Judicial activism which is defined as a judicial rulingalleged of being built on personal or sometimes political considerations and not than on existing law. From the above definition it is clear that the Supreme Court did not exercise any form of activism. Similar to the cases they were viewed as having it wrong now, by the time the cases were in session the court only interpreted what was before them. It should be noted that the Constitution is without doubt the supreme law of the land. This being mentioned the Supreme Court is set tointerpret what the Constitution suggests meaning the Supreme Court decisions are in fact the law of the land.

Despite this conclusion that the Supreme Court remains less of an activist and more of an interpreter does not mean that discussionon the Obergefell v. Hodges case concludes. It should be considered that just like the Minor v. Happersett caseamendments might be set to in support of the critics of the court decision similar to that of the 19th Amendment was passed in 1920.


Work Cited

Vanita, Ruth. Love’s Rite: Same-sex Marriage in India and the West. Houndmills, Balsingstoke, Hampshire: Palgrave Macmillan, 2005. Internet resource.

Vile, John R. Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789-2015. , 2015. Print

Wells, Michael L, and Thomas A. Eaton. Constitutional Remedies: A Reference Guide to the United States Constitution. Westport, Conn: Greenwood Press, 2002. Print.

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