Judicial Activism Of The U.S.

Judicial Activism plays an important role in the constitutional theory and judicial practice of the U.S.. As a kind of constitutional theory, judicial activism has a relationship with issues of "separation of powers", "constitutional interpretation","judicial review" and so on. As a kind of judicial philosophy, judicial activism exists in the entire judicial history of the U.S., especially active in 20th century. This article is trying to probe into the academic history and history of judicial practice and analyze the theoretical origins and rationality of judicial activism.The U.S. reporter Arthur Schlesinger is the first person to mention "judicial activism" He used the terminology in the famous journal Fortune, which produced great influence. Mcwhinney published two articles which made deep analysis to judicial activism. The one who first used judicial activism in judicial opinions is Judge Joseph C. Hutcheson, Jr, after whom other judges provided reasoned arguments in judicial opinions. However, it is difficult to define judicial activism precisely. This article make definitions for judicial activism from different perspectives:it can be defined as judicial activism when the court strikes down a law made by the congress or an executive acts; if the court overturns a precedent, we can also call it judicial activism; the judge adopts non-original intentionalism to interpret constitutional law, which is a kind of judicial activism; another judicial activism is that the judicial branch interferes political issues. All above embody the flexibility and practicability of judicial activism.Based on the definitions, this article makes a thorough inquiry into the theoretical origins of judicial activism:the Higher Law theory in common law, contextualism, anti-foundationalism and intrumentalism advocated by legal pragmatism and modern judicial theory.Although the terminology of judicial activism was raised in the middle of 20th century, it had already been existed in judicial practice in the U.S.. This article reviews the U.S. Supreme Court's practice of judicial activism:before 1937, the Supreme Court defended laissez falre based on conservative activism; the Warren Court took advantages of liberal activism to protect civil rights; the Supreme Court after warren was gradually becoming conservative again. Because of its rationality, judicial activism is able to play a role in the 20th century. Judicial activism is consistent with the constitutional theory which emphasizes the protection of civil rights and freedom, so it resolves counter-majoritarian problem. Non-original intentionalism advocated by judicial activism will promote the development of constitutional law. Good effects have been obtained by the practice of judicial activism. However, in order to avoid judicial autocracy, the court should practise judicial activism on the basis of optimum principle and mild strategy.