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Activists Judges makes laws?

Activist judges makes laws?


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Vincent

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They make laws and strike down others on whim. Look at Roe v Wade. They struck down the State's rights, claiming that some wording meant that abortion is a constitutional right for privacy's sake.
 

Kal'Stang

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They make laws and strike down others on whim. Look at Roe v Wade. They struck down the State's rights, claiming that some wording meant that abortion is a constitutional right for privacy's sake.

Where in Roe vs Wade did they make a law? All they did in Roe vs Wade is to vote a law that was passed out as it being unconstitutional. I would ask you another question but it isn't relevant to the thread topic since it is about abortion specifically. ;)
 

peas_and_corn

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Could you expand on that please?

I can't give an American example, since I don't follow your court system closely, so I'll give an Australian one.

The previous government led by John Howard was elected in 2004 with a double majority- controlling both houses of parliament. They used this majority to pass a controversial bill known as 'WorkChoices', which was a reform of industrial relations legislature. Up to that point, IR reform was able to happen at a federal level due to the agreement of the states, since the Constitution made IR policy an issue for states to look after. However, with a Liberal government federally and Labor governments in every state, there was no way that there would be agreement on it and the bill was challenged on the grounds of whether it is constitutional.

The court found in favour of the federal government, which argued that the Corporations section of the constitution gave the federal government the power to do this. This decision greatly expanded the scope of federal powers in relation to state powers, and will be used in the future as a precedent for future changes made by the federal government (the Labor party's repeal of this bill and further modification of IR laws wasn't challenged by the states, though it most likely would also have survived a challenge due to this case).

For more lazy wikipedia linking, this is the page about the case
 

Taylor

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Where in Roe vs Wade did they make a law? All they did in Roe vs Wade is to vote a law that was passed out as it being unconstitutional.
In that sense, what they did was "remake" laws enacted by elected legislatures. What was once illegal was made legal.

Many (including law professors from both sides) argue that the law established by Roe v. Wade has no Constitutional basis.
 
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Kal'Stang

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In that sense, what they did was "remake" laws enacted by elected legislatures. What was once illegal was made legal.

No, what they did was abolish a law that was against the constitution. No law got remade. There is no law on the books as far as I know that states that abortion is legal.
 

Kal'Stang

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I can't give an American example, since I don't follow your court system closely, so I'll give an Australian one.

The previous government led by John Howard was elected in 2004 with a double majority- controlling both houses of parliament. They used this majority to pass a controversial bill known as 'WorkChoices', which was a reform of industrial relations legislature. Up to that point, IR reform was able to happen at a federal level due to the agreement of the states, since the Constitution made IR policy an issue for states to look after. However, with a Liberal government federally and Labor governments in every state, there was no way that there would be agreement on it and the bill was challenged on the grounds of whether it is constitutional.

The court found in favour of the federal government, which argued that the Corporations section of the constitution gave the federal government the power to do this. This decision greatly expanded the scope of federal powers in relation to state powers, and will be used in the future as a precedent for future changes made by the federal government (the Labor party's repeal of this bill and further modification of IR laws wasn't challenged by the states, though it most likely would also have survived a challenge due to this case).

For more lazy wikipedia linking, this is the page about the case

Hmm, I'm afraid I know next to nothing when it comes to Australian law and judges. As such I couldn't comment about it.
 

Hatuey

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In that sense, what they did was "remake" laws enacted by elected legislatures. What was once illegal was made legal.

That doesn't hold up to a quick search on the history of abortion in the US. Abortion was legal to varying degrees in different states. As a matter of fact it had been legal upon request in various states before Roe V. Wade. Prior to the 19th century there weren't even many laws on abortion and whether or not it should be illegal. What was once illegal, wasn't all that illegal.
 
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Taylor

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There is no law on the books as far as I know that states that abortion is legal.
Roe v Wade itself is case law that makes abortion legal. It states that there's a constitutional right to privacy that extends to abortion. Whether or not you believe that, it is now the law.

No, what they did was abolish a law that was against the Constitution. No law got remade.
To believe that whopper, you'd have to believe that every law prohibiting abortion has been unconsititutional since 1868, and that the people who actually wrote the 14th Amendment did not understand the scope of their own law.

(Perhaps they just weren't smart enough to realize that "no person shall be deprived of life, liberty or property without due process of law" OBVIOUSLY grants a right to privacy and NECESSARILY means that states can't regulate abortion in the first trimester, should be severely limited in the second trimester, and do whatever they want in the third trimester so long as the mother's safe - and should be free to legalize the destruction of a perfectly healthy, full term infant so long as it's still in the womb.)
 

Taylor

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That doesn't hold up to a quick search on the history of abortion in the US. Abortion was legal to varying degrees in different states. As a matter of fact it had been legal upon request in various states before Roe V. Wade. Prior to the 19th century there weren't even many laws on abortion and whether or not it should be illegal. What was once illegal, wasn't all that illegal.
I'm talking specifically about the laws that made it illegal. Those laws were changed by the court. I never claimed or implied that abortion was illegal everywhere.

Prior to the 19th century, there may not have been any statutory laws criminalizing abortion, but it was restricted and oftentimes illegal under common law once into the second trimester. Yes, it wasn't severely restricted until the Civil War era - but as long as we're pointing out historical anomolies, we should also recognize that abortion law has never been as permissive as it is now. I don't think you can find a single, modern developed nation that doesn't restrict abortion more than we do.

As a matter of fact it had been legal upon request in various states before Roe V. Wade.
Yes indeed. And many would argue that had we let nature take its course, abortion would now be legal in every state. Instead, we got Roe v Wade - a poorly argued, terrible judgment that's resulted in decades of fighting and made abortion the most divisive issue in politics.
 

CriticalThought

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A lot of people like to argue that the courts have no Constitutional power to reinterpret law and as such, they have legislated from the bench with every ruling where they have done so.
 

Taylor

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No, what they did was abolish a law that was against the constitution.
And this begs the question - if judges do not "make law," where in the Constitution is the Judiciary granted the power to abolish or nullify laws enacted by the legislature?

Perhaps the earliest example of judicial activism was when they gave that power to themselves way back in 1803.
 

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And this begs the question - if judges do not "make law," where in the Constitution is the Judiciary granted the power to abolish or nullify laws enacted by the legislature?

Perhaps the earliest example of judicial activism was when they gave that power to themselves way back in 1803.

Article 3
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish....The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority....In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
.....
 

Taylor

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Article 3
.....
That gives them the power to interpret the law and render judgment on a case. It does not give them the power to decide whether or not the law itself is valid.
 

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That gives them the power to interpret the law and render judgment on a case. It does not give them the power to decide whether or not the law itself is valid.

It is deemed an implied power.
 

molten_dragon

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No, judges (activist or not) cannot make laws. They do not have that power.
 

American

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Where in Roe vs Wade did they make a law? All they did in Roe vs Wade is to vote a law that was passed out as it being unconstitutional. I would ask you another question but it isn't relevant to the thread topic since it is about abortion specifically. ;)

I think we are talking about the effect of their rulings? Are you trying to get technical and require a US Code number or what? We all know what we're talking about here, it's activist judges that in effect make law out of whole cloth when they rule on cases of law before them. We're not talking about where legislative powers actually reside.
 

Hatuey

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That gives them the power to interpret the law and render judgment on a case. It does not give them the power to decide whether or not the law itself is valid.

Pretty sure ' all case, in law and equity, arising under the Constitution' tells you that they have the power to determine whether a laws is in accordance with you know, the Constitution.
 

Morality Games

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To believe that whopper, you'd have to believe that every law prohibiting abortion has been unconsititutional since 1868, and that the people who actually wrote the 14th Amendment did not understand the scope of their own law.

They did not understand the scope of their own law, or they might have thought twice about how they phrased the precept.

Laws are general principles from which meaning proceeds logically. Even if a framer doesn't comprehend the full implications of that meaning, it does not alter whether or event an action or event is consistent with it.

Length of time doesn't really alter the constitutionality of a law because culture conditions cogntive patterns so that nobody considers its constitutionality.
 
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Harshaw

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Case law IS law in a commonlaw system.
 

Harshaw

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Pretty sure ' all case, in law and equity, arising under the Constitution' tells you that they have the power to determine whether a laws is in accordance with you know, the Constitution.

It doesn't. Equity certainly doesn't. And as for law, that clause did not figure into the reasoning or ruling of Marbury v. Madison.
 
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