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Explain the difference between the activist and the strict-constructionist/judicial restraint approaches. Apply both approaches to review the constitutionality of death penalty. In other words, if the Supreme Court were to review the constitutionality of the death penalty today, what would be the reasoning of a judge with the strict-constructionist/judicial restraint approach? What would be the reasoning of an activist judge?

The difference between the activist and the strict-constructionist approaches is that strict-constructionist judges interpret the Constitution using the plain meaning of its words and are strong supporters of judicial restraint, while judicial activists are much more likely to take liberties with Constitutional language and to invalidate decisions made by the elected branches based on personal predilections. Strict-constructionist judges in this way are more likely to uphold the death penalty based on language in the fifth amendment, while activists are not.

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Strict-constructionist judges are those who have a very narrow interpretation of the Constitution and its amendments. They don't expect to anticipate what the founders or their predecessors may have "intended" or "thought" or what a clause may "infer." Rather, they interpret the language of the Constitution, and specifically the plain meaning of words, exactly as written. Moreover, they are staunch proprietors of "judicial restraint," a procedural doctrine that defers legality to the elected branches of government and only intervenes when there has been a clear breach of constitutional limits.

On the other side are activist judges, who believe that the meaning of the Constitution's words are subject to interpretation and, therefore, that questions of legality or permissibility can be shaped by the times, personal tastes, political philosophies, past precedent, or other factors outside of the plain language dictated by codified law. Judicial activists are far more likely to invalidate or overrule the actions of those in the elected branches of government.

Using the example of the death penalty, a strict constructionist judge would be most apt to rule on the side of its permissibility based on the Fifth and Fourteenth Amendments to the Constitution, which state that "no person shall be deprived of life, liberty or property without due process of law." The latter part of that sentence clearly indicates that deprivation of life is permissible under the Constitution if the court system finds it to be a suitable punishment.

However, a more activist approach would seek to use one perhaps more favorable part of the Constitution to negate the other, in part because the activist may personally find the given practice barbaric or antithetical to the values of a civilized republic. In this specific case, the activist might argue that the Eighth amendment and its protections against "cruel and unusual punishment" include killing and would therefore invalidate any state's assertion that capital punishment is its prerogative under the Fifth Amendment.

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