On the judicial activism in the constitutional jurisprudence of the United States of America and Lithuania : lessons to learn

Abstract

Today perhaps nobody doubts that not only American, but also Lithuanian constitutional jurisprudence has undergone the period of judicial activism. As a deeper analysis of judicial activism, itself being a rather vague conception, is beyond the limits of this presentation, therein we will only try to react to two very general statements in favor of judicial activism in the constitutional jurisprudence of Lithuania. The first general statement is related to Justice John Marshall. In Lithuania, Justice John Marshall could be and is usually presented as a founder of the constitutional review – with the consequence of the invalidation of law, if it contradicts Constitution – as an immanent part of the powers of the court institutionally involved in constitutional adjudication (hereinafter – constitutional court). Favoritism of judicial activism in the constitutional jurisprudence is, among other things, based on the authority and ideas of Justice John Marshall. Nevertheless, such basis reveals only “one side of the coin”, as Justice John Marshall – his activity and ideas – are criticized in the United States; thus, some aspects of the “other side of the coin”, especially as generally relevant, should be revealed.[...]