Wednesday, January 18, 2012

"Judicial Activism:" Overreaching Courts or Protection Against Tyranny of the Majority?

The election season has the potential to provide a trove of video clips raising issues about the proper role of courts in America. In the clip below, Republican Presidential hopeful, Rick Santorum criticizes the US Supreme Court decision in Griswold v. Connecticut as inappropriate "judicial activism."  This clip can be a good discussion starter.

After students learn the case, what is their reaction? Is it, "Good grief, where does the Supreme Court get off creating a right of privacy!"  Or is it, "Thank goodness that the Supreme Court recognized that there is a right of privacy!" When the "people" of the great state of Connecticut (in the body of the elected representatives in the state legislature) vote to criminalize the use of contraception, is this an example of the "people" properly establishing the limits of acceptable conduct or is it the government overreaching into the very places where government should never venture? Should the Court have deferred to "the will of the people" of Connecticut or did it properly act to protect the people of Connecticut from the tyranny of its elected officials?

Does the Ninth Amendment's  reservation of rights to the people mean that only legislatures may determine the extent of those rights or is this the inherent function of the courts?

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