Judges in America Today

[jimmyrules712]

This post and question is not meant to be political, have anything to do with political parties, or the presidential race.

Its simply a question wantng opinions about our government. (Mods im pretty sure this deosnt violate the rules, if it does forgive me)

Ive been noticing in the news a lot where a certain law that is in effect is nullified by a judge. It seems left and right common judges are deciding for themselves what our laws should be, and through their decisions they are in effect making our countries laws. Judges are supposed to interpret laws, not create or destroy them.

Does anyone else think judges have more power today then they were originally intended to when the founding fathers wrote our constitution?

Or am i maybe looking at the whole thing in a wrong way?

[lil Jimmie]

looks like a topic for forumclique

[M. A. Dockter]

I'm going to let this one go. Although it has the ability to spill over into political discussion, I feel our member group can debate the constitutional issues of this matter without getting heated and political.

But, the first one to prove me wrong gets a free ticket out of here.

[patrickt]

IMHO, judges are not supposed to create laws but they are supposed to destroy them. That's the whole purpose of the Supreme Court.

[Spartan]

I voted yes because I believe they are in fact creating de facto legislation.

-Spartan

[Redfallon]

I agree with Spartan. Rather than simply ruling existing laws, the judges are "creating" new laws on their own.

[Panama Red]

Seems like the Courts/judges have shifted their emphasis from Enforcement within Constitutional guidelines to Interpretation within their personal political agendas. More so the lower courts than the Supreme Court.

[mattg2k4]

I'm not familiar with what the judges are currently doing, so I voted Not Sure.

[doctorgonzo]

I think not. I don't think that judges are all that activist these days, any more than they used to be. Unfortunately, when you interpret a state or the U.S. constitution, sometimes merely voiding a law is not enough. Throwing away a law and leaving a vacuum may be even worse. If legislatures or Congress refuse to perform their duties and pass laws that conform to constitutional protections, I don't think people should be made to suffer, so the judicial branch doesn't have much choice.

[mbossman2]

Originally Posted by doctorgonzo I think not. I don't think that judges are all that activist these days, any more than they used to be. Unfortunately, when you interpret a state or the U.S. constitution, sometimes merely voiding a law is not enough. Throwing away a law and leaving a vacuum may be even worse. If legislatures or Congress refuse to perform their duties and pass laws that conform to constitutional protections, I don't think people should be made to suffer, so the judicial branch doesn't have much choice.

However by creating laws from the bench, the courts bypass and usurp the Constitutionally granted power given to Congress to enact laws. Instead of crafting decisions to make law, the courts should have the ability to say: "BUUZZZZZZZZZT. go back and fix the law"

[doctorgonzo]

Originally Posted by mbossman2 Instead of crafting decisions to make law, the courts should have the ability to say: "BUUZZZZZZZZZT. go back and fix the law"

But that is exactly what is done in the vast majority of cases. As an example, a district judge recently threw out some rules related to campaign finance and told the FEC to rewrite them. Almost all the time, judges may throw out a law or administrative rules and tell the responsible lawmaking authority to rewrite them. I can't think of an example where a judge handed down a decision that found its way into state law or U.S. code without going through the appropriate legislature. I don't think that's possible.

If something is persistently ignored, however, there has to be some way to grant protections to the wronged parties, otherwise justice is not served.

[roomwithamoose]

The Justices are not voted on by the people, therefore they do not represent the people and should have nothing to do with the creation of laws. Their job is to protect the people from overzealous lawmakers, and being appointed they should be in a neutural stand point. Lately it seems that many judges have been almost 'rewording' laws to make them fit particular situations. I understand that you can never word something so that it will cover all situations, but changing a law and not sending it back to Congress seems a bit like trouncing on rights. Almost like what Putin is doing back in Russia.

[Force Flow]

I'm sure that all three branches have grabbed more power than they should have at some time or another, but it seems to even out after a while.

It's almost as if there is a lump of power that bounces around between the branches, and it goes it where it's needed. Kind of like some families where they have a $50 or $100 moving around between them in case someone has a greater need at one time or another.

[shazam]

Jimmy I think you ans. your own question.They inerpet the law.The wording is never exact. For instance when i went to school freedom of speach ment freedom of speach against the goverment( period). If you swore at your teacher or any one else you went to jail.Today it is freedom of speach and expression and you say what ever you want.I will not go into detail but it changed do to TV commercials. Many things today enter into the way the law is "interpeted". If the law was take on face value the Supreme Court would never have a split vote.I hope you understand this I tryed to make it as short as possible.

[jimmyrules712]

welll here is an example.

Those who keep up with this kind of stuff know about how that law passed banning partial b irth abortion. And afterwards some circuit judge overruled it, or something like that. Therefore the law is pretty much nullified (i think). (no debates about abortion, thats not the point or topic.)

but thats one case, and theres more, where one judge who doesnt represent the people made a decision that affected a law greatly.

[jong2k4]

The power of judicial review, or the ability of courts to strike down a law that is in violation of a higher law (highest to lowest: constitution, national gov't laws, state gov't laws, and it may depend on state constitutions below that point) is not specifically established in the constitution if I remember right, but is based on... Marbury vs. Madison I think. This precedent has stood the test of time by generally being useful enough that this power is not taken away from them.

Is it overstepping their constitutional powers? The actual powers of the supreme court are not defined by the constitution, but by laws made by congress and by precedent. It is the jurisdiction of the supreme court that is defined in the constitution, not its powers. Therefore the case could be made that it is always overstepping its power as none is defined; also that it cannot overstep its power as no limits are defined (except as implied by specifically assigning other powers to other branches and entities.)

[doctorgonzo]

Originally Posted by jimmyrules712 Those who keep up with this kind of stuff know about how that law passed banning partial b irth abortion. And afterwards some circuit judge overruled it, or something like that. Therefore the law is pretty much nullified (i think). (no debates about abortion, thats not the point or topic.)

In that case, a judge did not concoct a new law, however. The judges simply found a law to be unconstitutional, which is their job.

The fact that judges are not representative of the people does not bother me in the least. In fact, they shouldn't be. We do not live in a completely free direct democracy where the majority rules, and that is a good thing. Sometimes, the majority of people can believe in stupid, irrational things. If the majority voted to throw jimmyrules712 in prison for the rest of his life for no reason, that doesn't mean the people should be able to do that. Our government is a tug of war between a majority who wants to do things and a judiciary protecting the rights of the minority from tyranny. I think that history has shown that this balance works well most of the time.

[shazam]

WE live in a Repulic and a republic form of goverment.There is a slight differance between a democracy and a republic but not much. In a republic majority is supposed to rule.This is a short deffinition of republic.A political system in wich the supreme power lies in a body of citizens who can elect people to represent them.My point is majority rules.Yes sometimes minorities get laws passed to protect themselves.If you are not happy with such laws then the majority has the right to but people in to office to change these laws.As the saying goes we may not be the best but we sure as hell beat what is second.This is a good thread.I hope it continues.

[jimmyrules712]

so can any judge decide based on his opinion that a law is unconstitutional?

[doctorgonzo]

Originally Posted by jimmyrules712 so can any judge decide based on his opinion that a law is unconstitutional?

Of course not. Judges base their opinions on case law where applicable and legal arguments. No court decision ever reads, "This law is unconstitutional because I don't like it." Decisions are full of citations of precedent and legal arguments. If you read them, you see that they are based more on logic than personal opinions.