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.
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.