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Unformatted text preview: 4-6-2010Judicial Review•Marbury v. Madison 1803•Judicial TheoryoJudicial Restraint (liberalism): court should avoid overturning prior decisions if possibleoJudicial activism(liberal): adhere to the Constitution but mold it to the changing times; broader, more flexible interpretation of the Constitution-interpret with reference to current circumstances- may not mean overturning prior court decisions, not adhering to stare decisis (consistent with past decisions)More willing to depart from precedentJustification: making decisions in regards to the Constitution, not the literal meaning of it but the spirit of it i.e. Roe v. Wade – Constitution does not make provisions for privacy, but it is implied by the searches and seizuresAddress issues that have not been fully addressed by legislators•i.e. Abortion, gay rights •Sandra Day O’Connor•Since 1803- over 1000 overturned cases, under 100 cases in a year •Moderates support judicial restraintThree Theories of Constitutional Interpretation1.Original Intent theorya.Did the Constitution literally intend for such actions to be followed- no rights for abortionb.How can we really know the original intent of the Constitution; the Federalists papers are limited2.Living constitution theorya.Consider Constitution as a document that must be observed in light of the overall American historical experience b.i.e. the rights of blacks and women to vote; wasn’t intended but became reality3.Plain meaning theorya.Determine the constitutionally of the law based on what the Constitution...
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