Minimalism (judicial)
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Judicial minimalism refers to a philosophy in United States constitutional law which promotes itself as a politically moderate viewpoint.
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[edit] Summary and complaints against "judicial extremism"
Largely associated with Cass R. Sunstein, who originally defined the philosophy and remains its primary advocate, Judicial Minimalism, presenting itself as a moderate stance, crticizes the more conservative stance of originalism as judicial activism in disguise, since minimalists believe that a faithful application of originalist theory would result in a system of constitutional law where modern societal mores would be ignored, largely in favor of the now-antiquated ones held by the Founders This is based on the assertion that the Founders' understanding of Constitutional Law would likely include ideas about gender equality, racism, etc. that modern society would find objectionable. Conservatives who subscribe to this viewpoint, minimalists say, are likely to ignore precedent where it is convenient for conservative political aims. Minimalism also criticizes traditional liberal judicial activism as overexpansive and also ignorant of precedent when it is convenient to liberal political aims.
[edit] The minimalist viewpoint
Minimalists offer very small, case-specific interpretations of Constitutional Law as an alternative to what they see as the excesses of extremists on both sides. They believe that a stable Constitutional Law is in everybody's interest, and place great importance on the concept of precedent and stare decisis. They argue that only very small interpretations away from precedent, narrowly-applied, and based on the general direction of society constitute true judicial restraint rather than any originalist or strict constructionist viewpoint (in opposition to conservatives), while still allowing for a Living Constitution (albeit one with a much slower adaptation than many liberals would like). Their anti-conservative, yet also anti-liberal stance is well-expressed in the concurrent belief of many minimalists that Roe v. Wade was wrongly decided by its overly liberal court, but also that modern conservatives who either sit on or influence the Supreme Court of the United States are wrong to try and overrule that case at one fell stroke, its effect on the law having become a stable precedent. Depending on the minimalist's particular preferences, a minimalist on the court would be likely to either very slowly bolster or chip away at abortion precedents rather than proclaim a lasting ban or legalization on abortion via Constitutional rulings.
Justice Sandra Day O'Connor is often hailed by minimalists as their ideal Justice.
[edit] References
- Sunstein, Cass R. (2005). Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America. Cambridge, MA: Basic Books. ISBN 0-465-08326-9. Sunstein's book, despite its title, has been perceived as an attack on both judicial conservatives and liberal activists..
