Legislating from the bench

Discussion in 'Law and Justice System' started by manifold, Aug 25, 2010.

  1. manifold
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    manifold Diamond Member

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    Legislating from the bench: Fallacious talking point or legitimate concern?

    I hear this phrase quite often, especially with respect to recent decisions on same-sex marriage as well as the all-time benchmark, Roe v Wade. However, I question the implication that anything has been "legislated" at all by these decisions. By definition, legislation is the making of laws. And these decisions don't actually "make" any laws at all, but rather strike down laws that have already been made (and subsequently challenged), thereby placing limits on what the government is allowed to legislate. So, is placing limits on laws that are allowed to be enacted the same thing as enacting laws? Technically speaking it certainly isn't, but what about effectively and pragmatically speaking?

    Please share your thoughts and opinions.
     
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  2. GHook93
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    GHook93 Aristotle

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    Legitimate concern. There are many cases where the supreme court needs to invalid a law that is unconstitutional, but far too many times they are creating laws instead of just invalidating laws. There is a separation of powers for a reason.
     
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  3. manifold
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    manifold Diamond Member

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    Can you give me an example of a law the supreme court has created?
     
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  4. jillian
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    jillian Princess Supporting Member

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    The answer depends on whose ox is being gored.

    i lean toward fallacious talking point until they legislate from the bench and decide that corporations are suddenly people...

    then i think it's legislating from the bench.
     
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    Last edited: Aug 25, 2010
  5. Sheldon
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    Sheldon Senior Member

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    "Legislating from the bench" is just used as a code for "court decision I disagree with". The Republican talking points seem to use the phrase more than the Democrats do. I think it's a dog whistle for partisans.

    The judicial branch exists in part to place limits on what the other two branches of government can do. The legislative branch makes rules for what we the people can't do. The judiciary makes rules--via court opinions--for what the legislature can't do. So, vicariously, the judiciary make rules that can affect what we the people can't do. Their court decisions/opinions are effectively legislation, in that respect.

    even though the hacks use "legislating from the bench" as a pejorative, the phrase is just a round-about way of describing with the judiciary does and is supposed to do, in practice. It's really not that much of a pejorative any more than if you called Rosie O'Donnel a lesbian.
     
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  6. Dante
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    Dante On leave Supporting Member

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    given your premise...

    please list 3 examples of laws created by the courts.

    is should be simple to do.

    --

    a pity post edit: here is a link that may help you. I doubt it will, but I've been known to be wrong-- once or twice before.
    Law of the United States - Wikipedia, the free encyclopedia
     
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    Last edited: Aug 25, 2010
  7. GHook93
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    GHook93 Aristotle

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    Gay marriage in CA! Abortion rights! Birthright clause! Separate but Equal Doctrine (Yes this was set up by Plessy v Ferguson back in the day! Fundmental Right of Privacy (this right was created not by the constituion but by Marbury v. Madison), the Right to Marry Interracially, the Supreme court jurisdiction beyond diversity cases.
     
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  8. GHook93
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    GHook93 Aristotle

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    Its not a black and white concept, because invalidating in essence can create a law. But there are very good cases like the Loving case that made interracial marriage legal. Or Roe v Wade which created the fundmental right of privacy. Or Marbury v Madison which gave the Supreme Court power of the constitutional questions.
     
  9. Dante
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    you have not listed a law.

     
    Last edited: Aug 25, 2010
  10. Dante
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    Dante On leave Supporting Member

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    you have not listed a law.

     

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