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| Re: Still no coherent explanation of what legislating from the bench means [message #57278 is a reply to message #57275] |
Tue, 01 November 2005 08:52   |
akhilesh
Messages: 1275
Registered: May 2009
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Illuminati (3rd Degree) |
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HI John,
If it's not in the COnstitution, how can SUpreme Court Justices rule
on something? THey are only allowed to rule on something in the context of the COnstitution. Legislating from the bench means: interpreting a law WELL beyond its intended scope, so it in effect becomes a new law. THe role of judges is to simply interpret the law as it was intended by its framer, whether the framers in question are our founding fathers or elected legislators.
Hope this makes sense to you.
-akhilesh
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| Re: Still no coherent explanation of what legislating from the bench means [message #57280 is a reply to message #57278] |
Tue, 01 November 2005 11:58 |
Manualblock
Messages: 4973
Registered: May 2009
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Illuminati (13th Degree) |
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I understand your point AK; my position is this: The founding fathers specifically moulded the Constitution to be a fluid; change with the times template for future events beyond what they could percieve at the time. They make that very clear; if one were to read the federalist papers it becomes apparent that was their aim. How could a set of legislation be viable in perpituity? Thats why we call it Interpretation of the law when we act as judicial referees such as the Supreme Court does with every case.
How would you rule in the Microsoft Monopoly case using just the Constitution as written without applying any recent descisions?
How about right to die; since there was no medical means to determine how close to death people were 200 yrs ago?So; if the court does no interpretation of changing events then what is their purpose except to read the constitution to people? Oh; and let me say; I know you are not a childishly sarcastic individual and I appreciate that, thats why it's a pleasure to talk with you.
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| Re: Still no coherent explanation of what legislating from the bench means [message #57283 is a reply to message #57280] |
Tue, 01 November 2005 15:52 |
Bob Brines
Messages: 186
Registered: May 2009
Location: Hot Springs Village, AR
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Here you have raised an issue where Constitutional liberals an conservatives will never find common. It is a moral issue and different segments of the population have different views.It is clear that the Founding Fathers desired that any issue be settled at the smallest possible political entity. In the case of right-to-die, you are correct that it was not possible to determine the break-point between life and death nor to do anything about it if it were possible three centuries ago and so, there is no mention of right-to-die in the Constitution. Therefore, this issue is assigned to the States by default. It is out of the purvey of the Federal Government. The only way that the U.S. Supreme Court can get involved is if the laws of a given State were incorrectly applied, but not to rule on the merits of the issue itself. To rule on the merits of the case would be a clear example of judicial legislation: Creation of a law that did not exist. Now, you may argue (I'm not suggesting that you are) that some issues are so important that the Federal government has a duty to bring all people into compliance with correct and moral behavior, but was not this the cause of the War of Northern Aggression? I refer you back to my first sentence above. Bob
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| Re: Still no coherent explanation of what legislating from the bench means [message #57286 is a reply to message #57280] |
Wed, 02 November 2005 08:30 |
akhilesh
Messages: 1275
Registered: May 2009
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Illuminati (3rd Degree) |
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John wrote:
"I understand your point AK; my position is this: The founding fathers specifically moulded the Constitution to be a fluid; change with the times template for future events beyond what they could percieve at the time. "Sure, John. There is a way to alter the constitution. 2/3 majority ratification by all the states. IT has been amended several times.
Interpretation of English statements that make up the Constitution should not be such a big deal, at least by reasonable minded people. Just in case some of us are unreasonable and read more into it than was intended by the framers of that particular amendment, The SUpreme COurt exists as the final arbiter of what eac hstatement in teh COnstitution means. "How would you rule in the Microsoft Monopoly case using just the Constitution as written without applying any recent descisions?
How about right to die; since there was no medical means to determine how close to death people were 200 yrs ago? "
If the Supreme Court cannot clearly use the COnstituion to rule on a cse, they have no business ruling on it. They should either uphold a decision made by a lower federal court, or rule it unconstitutional.
Seems quite simple to me.
thanks
-akhilesh
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| Re: Lawbreaker by location. its a way of life [message #57288 is a reply to message #57285] |
Wed, 02 November 2005 10:46 |
Manualblock
Messages: 4973
Registered: May 2009
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Illuminati (13th Degree) |
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Well thats the real question. Many of the kinds of things you mention are ordinances which; while they are lawfull entities they mainly deal with localised issues that could not really be extended to the rest of the country. States need rights and priviledges to be able to respond to particular issues that affect them individually.
The Supreme Court is a body of lawgivers that decides how we as a people should conduct our business according to the set of rules laid down by the Founding Fathers who themselves took their point of veiw from the French Model of Democracy Liberty Equality. That would be the way we know what is rightfully our duties, responsibilities and protections from abuse of power.
People seem to forget that the Fathers were deathly afraid of the mis-use of power and it's effects. Thats why there is no written expression by any of them that declares there is even the concept of legislating from the bench.
They saw the House and Senate as administrative bodies that conduct the daily business of life in America.
The Court is the symbol of their allegience to the concepts that they fought to create in our government; that of protection from the majority for the minority; freedom of expression; fairness of treatment for everyone and the right basically to be left alone by the government as much as possible.This is my personal belief and I'm stickin' to it.
( sorry if it sounds like a lecture; it's a personality defect I have.)
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| Re: Still no coherent explanation of what legislating from the bench means [message #57290 is a reply to message #57289] |
Wed, 02 November 2005 14:09 |
akhilesh
Messages: 1275
Registered: May 2009
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Illuminati (3rd Degree) |
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I thnk their job is to see existing legislation, and events, and see if they agree with the meaning of the constitution. So, yes, they need to have a clear understanding of what the target legislation/event is, and what the constituion means. They then rule the legislation/event constituional or not.
So, if State A's legislature proposes a law, and the SUpreme COurt rules it unconstituional, then the law is struck down.
Similalry, if the Congress passes a law, and it is found ot be unconstitutional, it is struck down.
Unconstituional would mean inconsistent with the laws in the constitution. A strict contructionist would interpret the consitution narrowly, while one who "legislates from the bench" would read all sorts of things in the constituion that are not there. I have no idea about the 3/5 of a person, i don't see that in the constitution. -akhilesh
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