Jefferson on judges who legislate

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
 
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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."
 
"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.
 
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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."
 
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
 
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."

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.
 
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."

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.

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.
 
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."

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.

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

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.

Time for a new CONSTUTIONAL CONVENTION, folks.

Time to bring back Duels.
 
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

it was a politician's opinion. *shrug*

although I do think the judge who lifted the moratorium on deep water drilling b/c of 'jobs' really should have exercised judicial restraint before legislating from the bench.

i think the 5 rightwingers who decided Citizen's United should have exercised judicial restraint before using the court to advance their own corporatist policy.

I think that the rightwingers should have exercised judicial restraint before eviscerating anti-discrimination laws and destroying the ability of women to achieve pay parity.
 
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You guys are complete morons.
I mean it. There are no words to describe. Dumbshits.

Is that the best you got? Sheesh! ;)

Yes. I really don't know what to say when people propose dismantling the constitution.

Oh, I agree. Nothing I hate more than some judge dismantling the constitution. I think we can ALL agree on that.

But here's the deal - one person's "dismantling of the constitution" is another person's "excellent ruling." As I said before, it all depends on whose ox is being gored.

Tell you what - the next time some judge makes a ruling that you totally agree with but which you also feel is an example of "judicial legislation" and which you are willing to label as such, give me a ring - we'll chat. ;)
 
You won't see me cheering on any law made from a judge's bench. Ever.

I do applaud good JUDGEMENTS but that's a different issue.
 
You won't see me cheering on any law made from a judge's bench. Ever.

I do applaud good JUDGEMENTS but that's a different issue.

A lot of people don't know this, but our "law" is made up of two, separate components: legislation and case law. This comes to us from the English common law, and has been maintained by our system ever since.

Many aspects of our system of laws are determined not by legislatively enacted laws, but by judicial decision, i.e., case law.
 
You won't see me cheering on any law made from a judge's bench. Ever.

I do applaud good JUDGEMENTS but that's a different issue.

No E in the middle, unless you are English?

Cases of 1st impression MUST be decided from the Bench.

The Constitution is not a document that is facially without interpretation. If it were, construing the 4th AM, EVERY court would agree on what is a reasonable seizure as opposed to what was an UNreasonable seizure. Impossible.

There used to be a time in this country when the police could take you in, involuntarily, for questioning, period, absent any involvement in a crime.

Was this okay until the SC struck it down, in NY it was.

There used to be a time in this country when the police could enter your home without a warrant to effect a non exigent arrest, was this okay until the US SC struck it down?
 
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