Jefferson on judges who legislate

Discussion in 'Law and Justice System' started by AllieBaba, Jul 9, 2010.

  1. AllieBaba
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    One single object... [will merit] the endless gratitude of the society: that of restraining the judges from usurping legislation.

    Thomas Jefferson, letter to Edward Livingston, March 25, 1825


    Thomas Jefferson Quotes
     
  2. AllieBaba
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    This is where splatter comes in to say "I won't believe it unless you dig the actual document out of the national archives and put it on the table in front of me. And I have it examined by at least 3 people of my choosing."
     
  3. George Costanza
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    George Costanza A Friendly Liberal

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    "Judicial legislation" is a term which is applied to a legal decision by those who disagree with it. You will never hear that term applied to a legal decision by those who agree with it.

    And it is, of course, a highly subjective term - and therein lies the problem. Sure, no one can argue with the proposition that it is the legislature that enacts laws and it is the judiciary that interprets them. The trouble is, that, quite often, the interpretation of a law involves changing its effect.

    What do you do with the following situation: A state legislature enacts a law that is violative of both the state and federal constitutions. Yes, Gloria, it DOES sometimes happen. Now what? The law winds up in some appellate court somewhere and it is held unconstitutional. In the example I have given, that is the proper ruling because my original premise is that our mythical law WAS unconstitutional from the git go.

    What (predictably) happens next? Those who were opposed to the law applaud. Those who were in favor of it scream: "Judicial legislation!"

    Of course, the opposite scenario can play out as well, where a perfectly valid law is struck down by an appellate court, ruling in error. In that one, it WOULD be judicial legislation.

    Judicial legislation is easy to claim, but harder to substantiate. When does an appellate court's interpretation of a law amount to judicial legislation, and when is it simply a proper ruling?

    All too often, it just depends on whose ox is being gored.
     
    Last edited: Jul 9, 2010
  4. Epsilon Delta
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    Epsilon Delta Jedi Master

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    Jefferson on the Year 2010:

    "I can't believe those guys are still taking me seriously after 200+ years! It's like I'm Jesus or something... *looks around* Oh... Sorry Jesus, didn't mean to offend."
     
  5. Kevin_Kennedy
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    Kevin_Kennedy Defend Liberty

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    Another quote from Jefferson:

    "That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress."

    The Kentucky Resolutions of 1798
     
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  6. Kevin_Kennedy
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    Kevin_Kennedy Defend Liberty

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    And yet the Constitution only changes through the amendment process, not because a number of years has passed since it was written. It doesn't change just because we think something in it is outdated. We must amend it to change it.
     
  7. JBeukema
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    Why do people make kings of corpses and gods of men?

    It is 'We the People', not 'The Lesser Gods who wore funny wigs'
     
  8. Epsilon Delta
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    Epsilon Delta Jedi Master

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    I was just kiddin'. Jefferson's a great character. An oligarch and slave-owner, but all those cats had the right idea for their time.
     
  9. editec
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    editec Mr. Forgot-it-All

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    Time for a new CONSTUTIONAL CONVENTION, folks.
     
  10. AllieBaba
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    You guys are complete morons.
    I mean it. There are no words to describe. Dumbshits.
     

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