Judicial Branch Essay
In American Constitutional thought, it is generally regarded that the Judicial Branch and the courts should be independent from political sway. The Legislative and Executive branches were designed to represent the will of the people at the time, but the third branch is to remain isolated. Blatantly activist judges are generally regarded as unacceptable. It’s undeniable, however, that a completely independent judiciary is impossible in a democratic society. To some extent, the general populace plays a role in interpreting Constitutions, which is referred to as popular constitutionalism. To what extent the general populace plays in the interpretation of the Constitution is still debated and the answer may vary from country to country. For this
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This can be done in many ways. While national referendums don’t happen, each state can still have their own referendums to determine the legitimate will of the people. One of the most famous of these referendums was Proposition 8 in California. Even within a federalist approach, this would be acceptable. Additionally, within each state, as mentioned previously, a state’s citizenry can elect judges who are favorable to the populace’s views. They can also elect state and local officials who may flat out refuse to enforce marriage restrictions and go against the grain. Schachter points out that “as marriage litigation has shifted from state to federal courts, more state officials have exercised the prerogative not to defend anti-same-sex marriage laws” (Schacter 1178). This rebellious nature of local officials can also go the other way in which those in power refuse to grant marriage licenses to same sex couples (generally on religious grounds), as can be seen most notably in the case of Kim Davis in Kentucky. This all assumes, however, that the populace will resides in statewide views. On a more national scale, the spokespeople for the general will can include Congress and the Presidency. As previously mentioned, the fight for the Senate and the President are instrumental to popular Constitutionalism through the courts, but they can also simply pass legislation to interpret the Constitution. This happened most prominently with the Religious Freedom Restoration Act where Congress in 1993 tried to overturn the Supreme Court’s new restrictions on religious freedom following the case of Employment Division v Smith in
This can be done in many ways. While national referendums don’t happen, each state can still have their own referendums to determine the legitimate will of the people. One of the most famous of these referendums was Proposition 8 in California. Even within a federalist approach, this would be acceptable. Additionally, within each state, as mentioned previously, a state’s citizenry can elect judges who are favorable to the populace’s views. They can also elect state and local officials who may flat out refuse to enforce marriage restrictions and go against the grain. Schachter points out that “as marriage litigation has shifted from state to federal courts, more state officials have exercised the prerogative not to defend anti-same-sex marriage laws” (Schacter 1178). This rebellious nature of local officials can also go the other way in which those in power refuse to grant marriage licenses to same sex couples (generally on religious grounds), as can be seen most notably in the case of Kim Davis in Kentucky. This all assumes, however, that the populace will resides in statewide views. On a more national scale, the spokespeople for the general will can include Congress and the Presidency. As previously mentioned, the fight for the Senate and the President are instrumental to popular Constitutionalism through the courts, but they can also simply pass legislation to interpret the Constitution. This happened most prominently with the Religious Freedom Restoration Act where Congress in 1993 tried to overturn the Supreme Court’s new restrictions on religious freedom following the case of Employment Division v Smith in