different theories of constitutional interpretation that members of the US Supreme Court have used to make judicial decisions
There are several different theories of constitutional interpretation that members of the US Supreme Court have used to make judicial decisions. The two main theories are judicial restraint and judicial activism. Judicial restraint is the philosophy that justices* ought to interpret the Constitution as closely to the original language and original intent of the document as possible. Judicial activism is a philosophy that justices interpret the Constitution in the light of the modern times. Because justices on the US Supreme Court have the power of judicial review (the power to declare a law unconstitutional) and thereby may make decisions that affect the entire nation, justices frequently enter heated debate on the legitimacy of each interpretation philosophy. Moreover, it is not uncommon for one justice to accuse another of using a particular interpretation ″style″ simply to achieve a result they find politically favorable.* Judicial decisions are further complicated by the concept of precedent. Precedent is the idea that similar cases should be decided in a similar way. Courts do not want to keep ″changing their mind″ on how a law should be interpreted. For the sake of consistency, the courts try to follow previous decisions (whether under restraint or activism) so they do not throw the legal system into chaos. Here, in order to familiarize you more with these concepts, I am asking you to make a decision on a real case using these theories and concepts. The case, Brown v. Entertainment Merchants Association (2011), concerned the dividing line between free speech and obscenity. In writing your decision, you must state which theory of interpretation you have chosen and why you have chosen it. You must also state whether you have chosen the theory simply because it gives you the outcome that you want or because you are convinced that it is the method that should be consistently used for interpreting the Constitution. Would you have used the theory if it had not yielded the result that you liked? Your ″decision″ must be at least 150 words. Here is the case. Enjoy In 2005, the California State Legislature passed a law (AB 1179) (Links to an external site.)Links to an external site. that banned the sale of violent video games to minors (anyone under 18 years old). The law also required video games to have clear labeling about the game′s content beyond the existing labeling of the Entertain Software Ratings Board (ESRB) rating system. The entire purpose of the law was to protect minors from indecent or obscene material, material which is commonly allowed for a person over the age of 18 but often restricted for minors (for example, pornography). According to the law, the state has ″a compelling interest in preventing violent, aggressive, and antisocial behavior, and in preventing psychological or neurological harm to minors who play violent video games.″ The law established penalties up to $1000 for each violation. In order to boost the legal basis for the law, California relied upon a previous Supreme Court case (Miller v. California) which established three standards by which legislators could distinguish between free speech and obscenity. 1) Would ″the average person, applying temporary community standards,″ find the material in question appealing to their interests. 2) Was the material depicted in a blatantly offensive or sexual way as specifically defined by state law? And 3) does the material lack serious literary, artistic, political, or scientific value. The California bill was signed into law by Gov. Schwarzenegger in October 2005 but it was immediately challenged by video game companies before it went into effect. The Entertainment Merchants Association argued that the law′s definition of a violent video game would change the ratings of several games that were already deemed appropriate by the ESRB. They argued the law would have a substantial impact on the video game industry and that there was insufficient proof that violent video game media (a form of free speech) was harmful to the gamers or the interests of the community. The case went all the way to the US Supreme Court for a final decision.