Description
Those who are strict constructionists believe that judges should enforce, not interpret law. This is considered an extreme view where an individual has no rights unless they are specified in the Constitution or are present in some other legal source. An interpretationist (or activist) utilizes a looser reading of the Constitution and reads into it rights that the framers might have recognized or that they believe should be recognized due to evolving standards. Critics of activism say that just because it has been used for good causes does not mean this is always the case. Proponents of activism argue that it is needed to counteract overreaching of federal powers.
For this assignment, assume you are a judge with the appropriate jurisdiction to decide the following case. You were raised in a very strict and sheltered household and must decide whether a particular piece of artwork is obscene. The artist has painted a series of sex scenes, including bondage, sadomasochism, bestiality, and necrophilia, interspersed with paintings of nude children at play. She states that her art has redeeming social qualities because it is a statement of the many faces of humanity. The series of paintings is being displayed in a public gallery supported by city and federal funds. The district attorney has filed for an injunction to close the show due to obscenity.
Instructions
Prepare a three-page memorandum to your clerk, who will draft your opinion, detailing the following:
- Explain your ruling in the case, including the rationale for your decision.
- Determine how you will dismiss any personal bias in reaching and explaining your decision.
- Explore, as part of your dicta (non-legally binding opinion), whether you agree with the statement, "If the judicial system is not independent of political powers, and is a pawn or agent of political power, then due process is a sham and the very essence of democracy is threatened," in the context of constitutional rights and other potential influences on your decision.
Please title the paragraph with the appropriate bullet. There are 3 bullets so there should be 3 paragraphs (250-300 words each paragraph). Please do not use a source that I cannot verify. If using any online sources, please include the webpage address.
Explanation & Answer
Attached.
Enforce or Interpret the Law
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II.
III.
Ruling and rationale
Avoiding bias
Indepence of the judiciary
Running head: ENFORCE OR INTERPRET THE LAW
Enforce or Interpret the Law
Name
Institution
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ENFORCE OR INTERPRET THE LAW
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Enforce or Interpret the Law
The sale and distribution of items that feature nudity, sex and other forms of graphic
images and text to the public are restricted under the federal and state laws of the United States
of America. Nevertheless, the laws concerning obscenity at the time have led to controversies or
the first amendment that protects the people’s right of expression. Therefore, as a judge, it is
important to not only consider one’s personal standard of obscenity, but also the community
standards. In the case involving the gallery that showcases pictures of nudity and sex to the
public, I would rule that the museum is closed for several reasons. The primary reason would be
that even though I respect the rights of the artist to express their views and redeem humanity, it
immoral to express obscene views in public. In making the ruling, I will consider the precedence
set in the Roth v. the United States in 1957 as well as Kaplan v. California of 1973 (Leventhal,
1973). In the former case, the court argued that obscene objects are those that are not socially
redeeming and can sway the minds of those who are open to the objects. In the latter case, the
judge concluded that the first amendment did not protect pornographic content. In the current
case, the material shows not human redemption. No one has the right of expressing ill minded
ideas such as bestiality to the general public. Even if such a right were afforded to the artists,
then such exhibitions would be rated adult only events. Nevertheless, the gallery is open to all
the public and therefore, the museum should be closed until such a moment that the management
will prove the absence of such misleading arts.
According to the section 455 of the Constitution, federal judges will prevent themselves
from ruling by disqualification in cases that will compromise their impartiality. Also, judges will
disqualify themselves in case their personal bias will affect the results of the cases. The exclusion
is called recusal, and it is meant to ensure that judges rule based on the available facts rather than
ENFORCE OR INTERPRET THE LAW
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their ideologies and interests. In the case involving the obsce...
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