Leap of faith or blind following –Kenya borrowing from the American experience without learning from it: The role of the judiciary branch has been up for debate for centuries. This is mostly due to no specific mention of the judiciary’s exact task in the Constitution, except the checks and balances and separation of powers left behind by the original authors. Another factor in the debate is how the Constitution is interpreted. The method of interpretation is highly subjective and leads to further arguments on the role and power of the judicial branch. One last factor is the personal ideology of the judges. Personal views can affect a judge’s judgment significantly to the point of questioning the judge’s basis for decision-making. There are six main methods of interpreting the Constitution. One is textualism, or similarly, strict constructionalism.
Textualism & Strict Constructionalism.
This means solely the text is referred to. For example: “Congress shall make no law… abridging freedom of speech” means exactly “no law.” However, it has the drawback that not exactly everything is stated in the Constitution. Another similar method of interpretation is contextualism, which is attempting to derive the meaning from the text. Its main drawback, however, is subjectivity. “Freedom of speech” can be interpreted in over a hundred different ways. Is treason protected? Is flag-burning protected? Public school prayer? These kinds of arguments have all been hot topics of debate. Two other methods are originalism and structuralism. Originalism attempts to discover the original intent of the framers while structuralism attempts to refer to the structure of government (checks and balances, separation of powers, etc.). However, both methods are highly subjective. It is difficult to determine the framers’ original intent when they purposely left the Constitution vague and ambiguous. It is difficult to base decisions on structuralism without hard concrete proof like textualism and contextualism.
Doctrinalism and Developmentalism
Two final methods are doctrinalism and developmentalism. Doctrinalism is the basing of decisions on previous case precedents or stare decisis. This is a standard approach of the judicial system. For example Plessy v. Ferguson held against many challenges until 1954’s Brown v. Board of Education decision. Developmentalism is the add-on to doctrinalism in the sense that historical events and political culture are included for interpretation. However, both methods are negative in the sense that they both detract attention from the Constitution. There have been literally hundreds of landmark cases, but only a handful that have been brought up in the judicial restraint-activism debate. Judges have been noticeably making use of contextualism until the progressivist era. For example: Plessy v. Ferguson was passed on the basis that the Constitution did not mention or intend that blacks have the same citizenship rights as whites and that segregation was unconstitutional. The ruling was not overturned until Brown v. Board of Education, which has been touted because critics say that the judges “overstepped their bounds” or became too activist in their ruling.
There are many cases where critics have argued that the judges and jurors were too activist in their decision, and possibly too self-centered on their personal views. Some examples include Roe v. Wade concerning abortion. The Supreme court ruled that abortion must be legal to protect the woman’s health and privacy. The court ruled that it was unconstitutional for the government or anyone else to intervene in another person’s personal affairs. In the Court’s opinion, nobody could tell a woman that she could or could not have a child. Another debated ruling includes Lawrence v. Texas where the court ruled that consensual homosexual sex was legal and protected by the Constitution on the basis of personal liberty. Lochner v. New York was a debated case before the progressivist era. The Supreme court once ruled that minimum wage laws were unconstitutional because they infringe on one’s right to negotiate business contracts. Other highly debated cases include Mapp v. Ohio dealing with search warrants and unwarranted evidence, Roper v. Simmons dealing with the death sentence and minors (under 18), and Miranda v. Arizona dealing with the accused knowing their (Miranda) rights and what they are accused of. Other things to consider are the judges’ ideology. Conservative judges are likely to be more conservative in their decisions, such as then Justice Felix Frankfurter. They will be more inclined to view the Constitution as a definite document, practice judicial restraint, be pro-life, and against the separation of church and state, viewing morality as an important factor.
Liberals, on the other hand, such as chief justice Earl Warren, viewed the Constitution as a living document that is dynamic. Liberal judges are generally activist in their decisions, pro-choice, and a proponent of the separation of church and state. Moderates, obviously, would be a mix of both. However, that is not to say that judges should be confined to rigid categories. Conservative judges have sometimes practiced judicial activism and liberal judges sometimes practice judicial restraint. The role and power of the judicial branch has long been debated. Are judges supposed to practice judicial restraint, merely interpreting the Constitution or are judges supposed to practice judicial activism, proposing new laws and precedents, which may or may not be based on the Constitution? Additionally, how exactly is the Constitution supposed to be interpreted? One thing that is certain is that judges should not lie on the ends of the spectrum. Too much judicial restraint could lead to more decisions such as Plessy v. Ferguson and Dredd Scott v. Sandford, denying African Americans equal rights, whereas too much judicial activism could lead to more decisions such as Roe v. Wade and Lawrence v. Texas, adding rights and lessening restrictions but striking down conservative views.
Read more On Textualism & Strict Constructionalism in regards to Kenyan constitution (Article 26 & The Abortion Controversy)as debated by Blog Editor VS Njoki Ndungu during the referendum campaign in 2010
P.S Both Willie Mutunga and Nancy Baraza are judicial activists