I was engaged in a debate with Lordhelmet over in the South Dakota abortion thread, when the subject turned to the idea of "legislating from the bench."

There was no way to continue to work on this idea in that thread without dragging it completely off-topic, so instead I would like to take another stab at arguing it here. This is tricky since it most often comes up in the context of same-sex marriage and abortion, which are obviously emotionally charged issues. I would like to focus on the concept itself. Lordhelmet piqued by interest with this post:



Now these sorts of statements have been made time and time again by numerous posters on AD. I want to differentiate it from this alternate model put forth by Hayleyanne (who has been strangely absent of late...)



In specific, I want to deal with the concept that the Supreme Court does not have the authority to create new law.

I'll get to my own thoughts on the subject as the debate develops, but for now I would just like to ask the following questions:

1. Does the Supreme Court in fact have the authority to create new law?

2. What do you feel is the "proper" role for the Supreme Court in the "legislative" process?

3. Do contreversial cases, where the Constitution is unclear and provides no easy resolution, reaffirm the need for courts to "legislate" or challenge it?

1. Does the Supreme Court in fact have the authority to create new law?

It does not have that authority. Its function is that of an arbitrator and an interpreter of the Constitution.

The USSC does not "legislate from the bench" when it affirms that existing laws are Constitutional. It does so when it injects its own interpretations on the Legislature or tells the Legislature what to do to make a law Constitutional. That is not its role.

This is especially true when it comes to moral decision making. I agree with Justice Scalia when he said:



2. What do you feel is the "proper" role for the Supreme Court in the "legislative" process?

Simple: to determine if a piece of legislation is Constitutional or not. It is not the job of the Court to recommend changes or give suggestions. I believe it should be a purely "thumbs up" or "thumbs down" type of decision-making process.

3. Do controversial cases, where the Constitution is unclear and provides no easy resolution, reaffirm the need for courts to "legislate" or challenge it?

A law should not be un-Constitutional unless it explicitly goes against the language contained in the US Constitution. If the document is silent, so should the court be. It is the job of the legislature to make laws. If there is ambiguity, then the will of the Legislature (and hence, ultimately, of the People) should stand. Laws can be changed rather easily. Supreme Court decisions cannot be so easily set aside.

The problem with the ambiguous case is you then have this stack up of decisions over the years that cover this ambiguous area. This series of "clarifications" may be conflicting but often they lead to a mindset of certainty when the original issues were ambiguous.

It just so happens that many ambiguous cases involve moral decision making: abortion, gay marriage, assisted suicide. Let the legislatures make their laws and if the people don't like them, throw the bums out.

While I find much merit in your argument AMLord, I find that it's way too late to be enacting any kind of retroactive reversal of precedents from the last 200 years of judiciary which explicity did not follow the policy you are outlining here. How do you go about clearing up the stacks of decisions? By completely disregarding all precedent enacted by the courts after the constitution?

For instance, if a law were to pass in Alabama resegregating some element of society, let's say bars, making it legal for a bar owner to exclude blacks from his establishment solely on race, would it in your opinion, be the court's responsibility to completely disregard all precedent established post-Jim Crow in favor of the lettering in the constitution and it's amendments? I'm not trying to make you the bad guy for standing on the side of a racist law, but I'm wondering how you think the court should act if faced with a similar challenge. There's no constitutional amendment to prevent this type of law from occurring directly from the text of the constitution, to my knowledge. Or are we supposed to only disregard specific types of precedents and interpertations? Are we going to reverse the 200 year old seperation of church and state precendent?

You make a good point, but a misguided one.

The fact is that the courts ignored what the Constitution said in the case of segregation. The fact is that there is an Equal Protection clause. For decades, the USSC ruled that separate but equal was a policy consistent with the 14th Amendment.

There is nothing activist about interpreting the 14th Amendment. I have no problem when the USSC interprets the Constitution. The problem is, it often makes decision about which the Constitution is silent.

In fact, curiously since our form of government is supposed to be a limited form of government, the USSC (to my knowledge) has never struck down a law because it was outside of the government's power. It has struck down laws (many times) which are contrary to enumerated rights, but not because they are outside of the government's (allegedly few and limited according to the Founders) powers.

If that's what it takes. The judges' oath to the Constitution demands no less than that they undo whatever they've done wrong. Nobody said it would be easy, but it is what needs to be done. Otherwise, instead of having a constitutional republic, we'd be stuck with an oligarchy of philosopher-kings who'll only keep getting more powerful as time goes on. And those are the only two choices here. Take your pick.

I'm glad Ultimatejoe put the thread title in quotation marks--an indication the he might have some doubt the legitimacy of the idea.

I am having some difficulty with the questions as asked, because I really don't think justices have been "legislating from the bench."

If we start with the assumption that justices are "legislating from the bench," then that pretty much defines the debate in the words of justices like Antonin Scalia and the motor-mouths or talk radio. In recent years, liberals have pretty much let conservatives select the playground of nomenclature.

I don't buy "originalism," "textualism," "strict construction" or any thing else one wants to call this false notion.

My model is not Scalia or Clarence Thomas, whom I consider historical aberrations on the court, but the liberal justices William O. Douglas, Thurgood Marshall, Hugo Black and others.

Another of my judicial heroes is the great thinker Justice Loius D. Brandeis, the first Jewish U. S. Supreme Court justice.

Underpinning the whole buzz about "legislating from the bench" is questioning the right to privacy as manifested in the abortion issue.

As early as 1890, Brandeis addressed the privacy issue in a Harvard Law Review article.



http://faculty.pnc.edu/bbk/privacy.html

I submit that the fact that you have judicial "heroes" indicates that you elevate them above their rightful place.

It does not take a hero to read an encyclopedia article and summarize it. It does not take a hero to read a mystery novel and decipher whodunit.

Judges adjudicate. They should not be heroes to causes.

The fact that they are indicates something. Instead of simply reading the Constitution and giving their interpretation, they discover new and meaningful things that were never there. Indeed they can often contradict the very writers of the document directly and thus be labelled "heroes".

Ridiculous. A judge should not be a hero, he should be a neutral arbiter.

It is the place of other men to change the Constitution. A judge should interpret it, not write it.

The people I listed are all long dead and each made historical contributions to our national life. They have just as much right to be “heroes” as presidents (Washington, Jefferson, Lincoln and F. D. Roosevelt) and historic legislators like Henry Clay, Daniel Webster and yes, Lyndon B. Johnson who was probably the most efficient Senate Majority leader ever.

Maybe you should note how, long before he’s dead, Scalia is quite a “hero,” maybe even a cult figure. That’s ok though. He fits the current right-wing mold.

http://members.aol.com/schwenkler/scalia/



The line of demarcation is not nearly as simple as you make it.

Perhaps. But if they did, they overstepped what it means to be a judge.

A judge should be neutral. His personal opinions should ideally be unknown.

It is lawmakers that effect change (or should) not judges. The role of the judge is to decide if the new law is consistent with the Constitution.






So it is your opinion that judges should re-write the Constitution if it seems (to them) to be the right thing to do?

Perhaps you should read the Constitution. It contains provisions for amendment. Those provisions do not mention the judiciary.

And by muddying the water, by creating or allowing governmental powers which do not exist therein, the USSC has done exactly what it cannot do: it has changed the Constitution's meaning and thus the document itself.

I didn't see anyone say that. However there is a great deal of territory between a judicial "text-reader" and someone taking a leaf-blower to the Constitution.



I'm curious, where in the Constitution does it say that? I can find no reference. The Judicial Powers section says the Court has the authority to resolve disputes arising between citizens, states, and the Federal government. However amended, there is no limitation such as you are suggesting. The Supreme Court is not simply a legal proof-reader for the legislature.

Excuse me, I should have said:

It is lawmakers that effect change (or should) not judges. The role of the judge in this context is to decide if the new law is consistent with the Constitution.

Of course judges, including US Supreme Court Justices, resolve disputes under the law. That isn't what this discussion is aimed at however.

In fact, the US Constitution is silent on the matter of judicial interpretation of the Constitution. That power was invoked by John Marshall in the famous Marbury v. Madison in 1803.

It is an important distinction to note whether judicial rulings take precedence over the actual Constitution. The court has allowed limitations on gun ownership, for example, in express opposition to the 2nd Amendment. It has allowed limitations on free speech and freedom of assembly during times of war for example.

Throughout the history of the United States (especially pre-Civil War), the other two branches have taken the position that Court rulings apply on to the case before the court and not to similar cases.

Judicial activism, in my mind, is when the Court imposes positive obligations on the other branches of government. In other words, the Court rules that the Executive must do this or the Legislature must pass this.

I agree that the court has the burden of judicial review. As Marshall said in Marbury v. Madison "Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the
nation, and consequently the theory of every such government must be that an act of the legislature repugnant to the Constitution is void. This theory . . . is consequently to be considered, by this court as one of the fundamental principles of our society."

The limit should be a go-no go decision by the court. Something is either Constitutional (hence valid) or un-Constitutional (and invalid). There is no grey middle.

If we take the abortion case, where some have argued that the unborn are not citizens and hence have no rights.

However, non-citizens have rights and laws can be made that apply to non-citizens which are Constitutional, since the Constitution does not limit itself to laws regarding citizens.

Indeed, even non-humans may be the benefactor of state protection and this is Constitutional. Cruelty to animals is illegal because lawmakers say it is illegal even if the animal is the property of the perpetrator.

Extending this, the Congress should have the power to protect the unborn even while the unborn remain non-citizens or (arguably) non-humans. Even if the unborn are deemed the property of an individual.

Striking down abortion restrictions in Roe v. Wade would be akin to striking down animal cruelty laws (indeed I fail to see the difference between the cases). Thus the Court has found a right to privacy (and destruction of self, apparently) which somehow does not extend to non-human, living property of that individual. Baffling. I would think that the General Welfare clause is more appropriate for dealing with the welfare of (potential) future citizens than it does of animals that will never be citizens. Both types of laws might be un-Constitutional in a truly strict reading of the Constitution, but alas the government has never been of a mind to restrict its own powers.

Show me some specific instances where the four justices I mentioned did this.



Again, it's not that simple. Justices all come to the bench with some sociological views which end up being reflected in their decisions. You might try reading Justice Benjamin Cordozo’s classic called The Nature of the Judicial Process, first published in 1921.

In it he talks about how judtices come to the bench with identifiable sociological views.

Do you honestly think for one minute that Bush didn’t choose John Roberts, Samuel Alito or even Harriet Miers based on his perception of their judicial philosophy?



Again this is only if one buys into your definitions.



I won't respond to this loaded question. I will say that I do think judges should have broader leeway in interpreting the constitution than you do.



Don't be so condescending. As a moderator you should set a higher standard. For what it's worth, I had read the constitution multiple times before you were ever born.

1. Does the Supreme Court in fact have the authority to create new law?
No. Only the legislature can do that.

2. What do you feel is the "proper" role for the Supreme Court in the "legislative" process?
A court's job is to interpret the law when disputes arise. If a court "misinterprets" something, it can be remedied with amendments to the law. Judges should always give reasons for their decisions. They should not be swayed by public opinion.

3. Do controversial cases, where the Constitution is unclear and provides no easy resolution, reaffirm the need for courts to "legislate" or challenge it?
Their purpose is to clear up the ambiguity. The legislature makes a reasonable effort to make the laws clear, and they have the power to edit it if they feel that it has been incorrectly interpreted. The Constitution makes it clear that the powers of the government are limited, and the people retain unenumerated rights. For this reason, when in doubt, the court should side with individual freedom rather than government authority.

An excellent example is what happened in Massachusetts with gay marriage. The court ruled that since it was not forbidden, it was permitted. There was a response to the ruling by attempting to amend the constitution, thereby negating the ruling. The amendment was rejected. Everyone here followed the proper procedure. The court interpreted the law, and the legislature attempted to clarify it. (If any residents of Massachusetts want to correct me on this, please do. I am going purely by memory. Although, this works as a hypothetical example as well.)

I was not being condescending. I was asking you to reconsider the source documents.

Here is my basis for asking you to reconsider what the base document says:






You clearly indicate that it isn't as simple as "Judges should interpret, not write" the Constitution.

If isn't that "simple", then re-writing the Constitution must be within bounds for the judiciary, at least to some extent. Otherwise, it would be clear that writing the document is outside of their jurisdiction. I asked you to reconsider the document in which the Amendment process is given to the States and to the Legislative branch.

Perhaps you meant that interpretation implicitly contains re-reading the Constitution in a more modern understanding. My position is that this is the incorrect view. The writers (or amenders) had a specific intent. Skewing that intent in contradiction to source documents is the wrong approach.

If the US Supreme Court changes the Constitution one iota IT is operating outside of its Constitutional authority. The Constitution clearly gives the amendment process to the States and the Legislature. The Constitution gives lawmaking authority to the Legislature. And it gives enforcement to the Executive.

No. The Constitution of the United States doesn't vest the Judical Branch any legilative authority at all. The most the Supreme Court can do is strike down a law or state that a law can be passed because it is Constitutional.


I'm with Amlord here BoF. A judge's job is to tell everyone else what the law says and how it applies to a given case. I suppose you can call a judge who does that a hero if he doesn't interject his own personal bias [be it a sociological view or a political bent] into his rulings...but that's kind of like calling a delivery guy a hero for getting my pizza to me on time. A judge's job is to interpret, which should include what is written and what those words were intended to mean by the Framers...In that order, judges should not use what they believe the Framer's intent was in order to add on to the Constitution, but instead use the Framer's intent to add on to what already exists in the Constitution. I won't pretend that that is an easy job, but if judges use that method to interpreting the law of the land, then the judiciary will be doing it's duty.

CP

But isn't that the problem. Who decides what is the correct interpretation if not the judges themselves??

The Judges do not play an active role, they are the only branch that is passive. If congress passed a law today, judges could not just rule it Constitutional/Unconstitutional. They have to wait for there to be a grievance. Some one must advocate that "this law" is unconstitutional. So right there the law is contested, not by the Judges.... but by the citizen!!

The Judge must then determine whether it is unconstitutional or constitutional. To say a judge is legislating is simply a way of saying that you don't like the decision. They were brought a petition by the people and made a decision... how can this be legislating??

It depends upon the rationale behind the decision.

If the judges look at the law, look at the Constitution and see conflict, then rule accordingly, this is not activism. It is just as intended.

However, if they bend the meaning of the Constitution to include their own personal views of what the meaning should be, then it approaches activism.

In particular, the court should not be the venue for social change. Society needs to be the venue for social change. The court is not a force for good or evil, it is simply an arbiter. A neutral arbiter.

Two things. First the judges must also consider other cases or precedent, that is as much a part of our law as the Constitution.

Secondly, how exactly do you define that someone has "included their own personal views of the meaning" when you state that judges must interpret the law. I think what you are doing here is falling into the same tired rhetoric of "if I disagree with the decision then it is 'judicial activism' or 'legislating from the bench'".

If you really want to take this line of argument Amlord I think we are going to have to see examples of what you have in mind. If this is such a problem then surely there are some, and it would be nice if we could pick something slightly less divisive than Roe v. Wade.

Understood and I agree.

Look at any court decision and you will see the length they go to use precedence to justify their decision. I have never read a case study especially within the last 150 years where a Judge writes... "I feel such and such is wrong so I am voting it unconstitutional."

This does not happen. So if we can see in case studies that they use precedence
9previous court rulings) which use precedence, which in turn use even more precedence, not once but many times in writing a court decision how can you call them legislators.

The court has to be a venue for social change as much as any other branch. This is just the way it is going to go. how many decisions do courts rule unanimously in?? Frankly I don't know... but I would wager on the low end. How do we decide which side is legislating and which side is being fair?? When it goes our way.


The fact is, if you are being honest, you know that both sides has an argument steeped in law and previous cases. This group thinks this side has a better argument and the other believes the other side has the better case. But both sides use the same mechanisms of law and precedence to justify their decision.

The side with more wins....

By the Judicial branch being an EQUAL, not LESSOR, branch of Government it can check and balance the other two. Some change is forced on us by congress, some by the presidency, some by the Judicial branch... three EQUAL entities.

Your claim is that they are legislating and wrongly interpreting the Constitution. Yet just the same I may see the same case and find that they are correctly interpreting the Constitution. It happens at our level as online debaters. It happens at lawyer levels. And it happens at judge levels. Disagreements, different perspective on what is the correct interpretation.

No, saying they're legislating means that they are not using the Constitution to decide whether or not something is or isn't legal. Just because the people initiate the judicial process doesn't somehow mean that the people are giving the judge the same legislative power they do when they elect their representatives. Bringing a complaint to the court is simply asking the judge to determine whether or not the law is consistant with the Constitution. If that isn't the correct interpretation [that being A: Is a law consistant with the text, and B: Is there something consistant with the Constitution that can be constructed upon text that already exists?], then why write the Constituition down? If we are allowing the Judiciary legislative powers, completely ignoring the fact that the Constitution expressly forbids that, why stop there? We as a society can't pick and choose which parts of the Consitution to add and subtract from or the whole thing loses all meaning.

CP

Then let's look at some examples of this instead of speaking in abstract terms because I really don't think that everyone is really coming to the same definition of "legislation" and indeed the original topic expresses a confusion over the choice of words there.

I'll give you the same challenge that I gave Amlord, find something that illustrates what you think judges shouldn't be doing so we can all discuss it and get on the same page. Let's exclude hypotheticals and Roe v. Wade to avoid turning this into yet another abortion debate.

This is something I wanted to touch on a bit. What do you guys think "create new law" means? If I'm a judge, and I'm presiding over a case where interpretation is necessary, no matter how I rule I am in effect creating new law. This is what I was hoping to get a bit. In Roe v. Wade for example, some people (Amlord for example) feel that the Court created new law, and in doing so overstepped its authority. However, if they had ruled that the state could restrict abortions on the basis of fetal rights, then they would be creating new law as well, as nowhere in the Constitution or existing legal body were these rights enumerated.



Well this is all well and good, but you seem to be suggesting that the court has disregarded this role, and I have yet to see any objective proof of this. The court cannot be a force for social stagnation either. The status quo is only as tenable (in this case) as the law allows.

I guess what I'm trying to get at is the perception that the Court has taken on more responsibility than it should; because these impressions don't really have a strong grounding in the actual decisions and constitutional law itself. Instead I see more of an argument based on perceptions of these decisions and some semantic grunt-work.



This is a compelling argument on it's surface, but it seems to me that it completely ignores the reality of both the judicial and legislative process. More to the point, I see nothing in the Constitution or the Federalist Papers which takes this view of how the Court should operate, which makes me wonder why this limit is necessary? Take for example a law that grants citizenship to everyone over the age of 25 who was born in the United States. Suppose someone challenges this law before Supreme Court, and the court finds the law unconstitutional.

In your configuration of the Court, these people who had held citizenship (say for six months) all of a sudden have their citizenship revoked. The problem is that there is no precedent or procedure for someone's citizenship to be stripped unless they are in violation of existing statutes or obtained that citizenship through false means. What then is the court to do, just leave hundreds of thousands of people in legal limbo, or to weigh the issue and deliberate a resolution that exceeds the scope of a "thumbs up" or "thumbs down"?

The fact is that the rights delineated in the Constitution are inalienable, and it is the role of the entire government to protect/guarantee them. I don't see anything in the Constitution that says only the Legislature can do that... yet your argument carries that assumption as a corrolary.

Fair enough and simple enough CJ. Instead of picking a polarizing example, I'll take one that I think most if not all of us can agree was wrongly decided, which means that the Supreme Court effectively invented a law...
Kelo v. City of New London

The Supreme Court ruled that the City of New London had the Constitutional authority to take away a citizen's land, and give it to another private citizen, flying in the face of the 5th Amendment. The SCOTUS effectively enacted a law in ruling that it is legal to take land from one private citizen and giving it to another, even though it clearly isn't. That is legislating from the bench.

CP

It may be a bit late in the day for me to sufficiently parse that one, but here is a link for the benefit of others - link. Now I'm not expressing any opinion one way or the other about this case, but this is what the 5th amendment says:



The part important to this case is bolded. Now based on the text in that link it seems the challenge here was to determine:

1) Whether the land was for "public use"
2) Whether "just compensation" was provided.

Now this link seems to establish that this was in fact a valid "public use" what I don't see in here is anything about compensation. One would probably have to dig further into the case to find those details.

But on cursory examination I don't see any "new legislation" here. I see the court interpreting a clause of the 5th amendment in a way consistent with both the Constitution and with previous cases (cited in the case).

Edited to add: I remembered there was a debate about this a while ago and I did in fact take a position against this. However, I'm just trying to look at it objectively here to see if this is based in the constitution or if in fact it is "legislation" without addressing the question of whether I personally agree with it (which I don't).

Cube Jockey, I'll let you do the talking for me here.

From the thread that debated this topic when it happened: Link



The land was taken and used for a mall, which is not a public building, whether or not the public can go there is meaningless, the mall is owned by a private citizen or group of private citizens.

Also on Edit: I didn't think that you had change your mind...But my only point is that it was almost a consenus opinion here on AD that that decision was wrongly decided. There is no textual basis for that decision, and if we are to go by that skewed definition of "public use" then a gas station would be considered a public property; my point being that the Constitution was effectively altered or added to without any textual support by the Justices, which is essentially legislation.

CP

I'm familiar with what I said, but I'm also not a constitutional scholar CP so you shouldn't exactly be relying on me for expert legal analysis.

Just going by the case itself it seems there is precedent for having a broader interpretation. Once again I'll state that I don't necessarily agree with that personally, but they are drawing upon these decisions from previous cases and from interpretation of the Constitution. I don't see anyone inventing law in the case. If that is happening then quote it and point it out.

I'm not trying to be adversarial here but it is very important to clarify these points so we can actually discuss them.

An example of the judiciary not only abrogating legislative powers, but also executive powers:

School busing. Federal judges determined both the goals (a legislative function) and the means (legislative and/or executive) and then proceeded to exercise oversight of the entire fiasco.

1. Does the Supreme Court in fact have the authority to create new law?

Yes, but it's important that they use restraint in exercising that authority. Any case that the Supreme Court decides can be used as precedent in other cases throughout the entire country. Any such case law is "new law," in the common law tradition we inherited from Britain, so clearly the Court does have the authority to create new law.

But the Framers never imagined the Court as a super-legislature, inventing new Constitutional rights and abrogating "obsolete" ones. The other branches have checks and balances that the Court lacks. The only check on the Court's power is to pass a Constitutional amendment -- a very difficult undertaking.

2. What do you feel is the "proper" role for the Supreme Court in the "legislative" process?

Striking down laws that are unconstitutional. Giving Congress some guidance about how they overstepped their authority.

3. Do contreversial cases, where the Constitution is unclear and provides no easy resolution, reaffirm the need for courts to "legislate" or challenge it?

Controversial cases reaffirm the need for courts to judge, to read the law carefully, and to interpret it in a reasonable way. Justice Marshall wrote in 1824:



Marshall kind of sounds like Scalia there...



I see your general point, but I disagree about Roe. The states do have the power to regulate medical procedures. That's an example of "police powers" traditionally reserved to the states under the Tenth Amendment. And Justice Blackmun wrote in Roe that "In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone."



"Stagnation" is an interesting choice of words. Presumably you would like the courts to be "progressive." The Framers saw the Supreme Court as a moderating force, not creating new rights, but preserving those rights found in the Constitution. In Federalist 78, Hamilton writes of "ill humors" that "sometimes disseminate among the people themselves" and "occasion dangerous innovations in the government, and serious oppressions of the minor party in the community." That danger necessitates "the rights of the courts to pronounce legislative acts void," unless and until the Constitution is amended to allow these laws:



There were some at the time who warned of the possibility of judicial activism. Hamilton's response:



I think Hamilton was right, that a Supreme Court is necessary to preserve our rights under the Constitution. We're better off than we would have been if the Court hadn't existed. But it's important that the courts recognize the need to exercise their JUDGMENT and not their WILL.

That is simply not true. Judges have no power to disregard the Constitution, but full power (and if you ask me, an obligation) to disregard their own precedents if they determine that they were erroneously decided. That itself is a precedent that's been reaffirmed many times.

It's also a fundamental necessity if any semblance of stability is to return to our system. Otherwise, little errors become amplified over time until the "Constitution" the judges think they're reading from bears no resemblance to the actual Constitution that We the People ordained.

Very good case CP. And it goes directly to prove my point.

First can we all agree the fact that the popularity of a decision doesn't make it constitutional or unconstitutional. So even if most people think that the Kelo case was unjust it doesn't make it so.


Second let's look at what you say without duplicating what CJ has already written.



Could malls bring in greater tax revenue... yes or no??

The answer is yes.

Would greater tax revenue be of use to the public... think schools, highways, roads, parks, general welfare...

The answer is yes.

Does increasing funds for schools, highways, parks and general welfare constitute "public use"??

I think it does, but I can see where a person can interpret it another way.

The point is you said the decision flew in the face of the Fifth Amendment, but itdoes not. The %th amendment became ambiguous and in need of interpretation when it allowed for the clause "nor shall private property be taken for public use, without just compensation. "

Doesn't just compensation have to be interpreted?? It isn't spelled out by the Constitution is it??

Doesn't public use have to be interpreted?? It isn't spelled out either.

So is it or isn't it the responsibility of the USSC to interpret the Constitution??

It is.


Now let's take a quick look at the case. Well not just the case but

Hawaii Housing Authority v. Midkiff, 467 U. S. 229
Berman v. Parker, 348 U. S. 26 (1954)
Missouri Pacific R. Co. v. Nebraska, 164 U. S. 403 (1896)
Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112, 158-164 (1896).
Strickley v. Highland Boy Gold Mining Co., 200 U. S. 527, 531 (1906).

These are five, but there were a lot more, but unnecessary to prove my point. All these cases plus more were cited within the majority opinion. Which shows that the Justices did not simply say "this is my opinion, that I am substituting for the Constitution"


I feel feel that I proven two very essential things in the case of New London without even really touching the the case itself.

1. interpretation of the 5th Amendment was needed, which does fall into the powers of the USSC.

2. The interpretation did not form within a vacuum but instead used numerous instances of constitutional law to back the decision.

Now as CJ proclaims he found Kelo to be Unconstitutional, but he admits he is no legal scholar. But lets for fun sake say he is!! It doesn't matter, because even legal/constitutional scholars disagree, thus a very narrow 5-4 vote from the USSC Justices.

Wow Droop, you've just summed up the dangers of reading the Constitution broadly so vividly I don't think we need to expound on it.



This type of logic would mean that the government has virtually limitless power over every single private entity. Wouldn't the government have more money if it owned Exxon Mobil? What about Microsoft? Wouldn't the government save a lot of money if it owned Haliburton outright?

Your last line I quoted: "I think it does, but I can see where a person can interpret it another way." is really the key. The Supreme Court should make decisions which are incontrovertible, not ambiguous. When they make a ruling, disinterested parties should all nod and say "Yes, that makes sense." There should not be controversy in a Supreme Court decision because the Constitution either says something or it does not. The words either mean something or they do not.

In the case you cited, public use does not mean private use. In fact, the Constitution says nothing about taking one man's private property and giving it to another man whether or not there is a resulting public good and regardless of whether the original owner was justly compensated. The USSC should have struck down the practice as being outside of the enumerated powers under the Constitution.

EXACTLY!!!!!!!!

The unfortunate circumstance about our constitution is that the Supreme Court has no check or balance. There is no governing body that can "vote out" or "overrule" their opinion democratically.

There is no other portion of American society that has this type of power. Frankly, you have to wonder exactly where the limits are?

Could they make "anything" legal, as long as they deem it constitutional? I could've sworn we lived in a democracy... power of the people, of course unless there are liberal judges? Hmmmm....

You shouldn't... you'll only take the debate off track.

Instead let's think about when we grew up.... Do you remember that class about opinion and fact and how they differ.

Again I plainly sought to prove two things, and neither was whether Kelo v new london was decided correctly. It is my opinion, obviously, that it was. I read the cases that that were already previously adjudicated and found that this Supreme Court continued in it's same line of thinking of what constituted public use. Just as obvious is that you completely disagree. But that is neither here or there.

The question is this.

Do you view your views that, "The USSC should have struck down the practice as being outside of the enumerated powers under the Constitution". as a fact or an opinion.

Once again that last line of the Fifth Amendment of the Constitution required interpretation. Do you or do you not deny this statement??? Who was to say what is just compensation?? Who was to determine what does or does not fall under the umbrella of "public use"

The USSC does not write majority facts, they write majority opinions. At any time a change in Justices can change the majority opinion.

***(and as a quick side note) It was the legislative branch that took the homes. If the Supreme Court simply stepped aside then the same result would have happened***

Back to the main points...

Now lets talk about the opinion. I provided cases if you want I can provide the link to the majority decision and you can see there were even more cases and more citations of law.

So the question is did the Supreme Court come to its decision/opinion by using Constitutional law or did they just speak from the heart.

The USSC does not make law... it does not legislate... it gives its opinion whether a law is Constitutional or not. If it is their opinion that a law is Constitutional they leave it alone. If it is their opinion the law is unConstitutional then clearly the law needs to be abolished.. This is simple reasoning

The Constitution is the Supreme law of the land
There is a law that violates the Constitution
The law is breaking the law


But the Supreme court never made a law, therefore it NEVER legislated. It mere gave it's opinion on whether the law broke the law.


Aevans




This said by you of all people. You are a pretty smart guy are you purposely being deceitful, or have you forgotten the Amendment process.

The legislative branch actually has the final say not the Supreme Court. Here is why.

The Supreme Court can not rule a Constitutional Amendment unConstitutional. Our legislative Branches can make Amendments. For you to say there is no check on the Supreme Court is blatantly wrong. Am I correct in this.

Now the question is why do Conservatives (sorry for generalizing, but it is so much more abundant in conservative circles) continue to propagate false information that the Supreme court has no checks to balance it??



Again a myth or at least a very skewed way of looking at the Court. The Supreme Court does not make things legal, they do not legislate. Every thing is already legal until the action of the legislative and executive branches making it illegal. The Supreme Court isn't telling people what they can do, they are simply telling the government what they can't do.

1. Does the Supreme Court in fact have the authority to create new law?

No. That authority is given only to the Legislative Branch

2. What do you feel is the "proper" role for the Supreme Court in the "legislative" process?

Oversimplifying my answer, the Supreme Court provides a check on the Legislative Branch... that, I believe, is it's proper role in the legislative process.

3. Do controversial cases, where the Constitution is unclear and provides no easy resolution, reaffirm the need for courts to "legislate" or challenge it?

No. The Supreme Court should never legislate or challenge the Constitution. They can certainly challenge interpretations of the Constitution, but they can't challenge the Constitution itself. It is well documented that the rights set down (and those not specifically set down) are not entirely inviolable. This is as it should be.

I agree that "legislating from the bench" would involve directing the Legislative Branch to pass a particular law. But any action by the Supreme Court makes a statement to the Legislature. A statement that says, "This law is unconstitutional. Find another way to make the law work." is not legislating from the bench.

It seems clear to me that the Founders recognized that the Constitution would not be able to cover every situation and that there would be ambiguities. The existence of the 9th Amendment is one example of that consideration by the Founders. They realized that they couldn't enumerate every single protection explicitly in the Constitution. So the idea that a law is unconstitutional only if it violates explicit language in the Constitution is ridiculous and was never the intention of the Founders. They stated that rights, even though they may not be explicitly enumerated are likewise protected. Who then does it fall to to interpret and define these unenumerated rights? The Legislature? The Executive? That is giving the fox the key to the hen house, no... it makes sense that it should fall to the Supreme Court as a check on Legislative and Executive power.

"Legislating from the bench" would occur if the Supreme Court attempted to pass a new law, or to order Congress to pass a law. That is the only way that the Court could be legislating from the Bench. Striking down, in part or entirety, a law as unconstitutional does in no way mean that the Court is "legislating from the bench."

"Judicial activism" occurs when a justice puts his personal views ahead of the rules for constitutional interpretation. It has, however, become the catch phrase for those who simply do not agree with the court's decision.

Amlord,



Roe v. Wade provides more protection to unwanted fetuses than the government affords unwanted animals. What do government funded animal shelters ultimately do with unwanted pets? Do they protect this "right to life" of the animal and keep it alive? No. Unwanted pets are ultimately, destroyed.

I concede that Roe v. Wade walks very close to the line of legislating from the bench. But it does not establish legislation. It establishes limitations on legislation based on constitutional interpretation... and that is within the bounds of judiciary power. It places no positive obligations on the Legislature.

When you have poorly written and defined portions of the Constitution then of course this is a possibility Amlord. The Supreme Court could take a very broad definition of public use or they could take a narrow one, but neither is "legislating from the bench" because they are basing their decision on the Constitution either way and since "public use" is not anywhere defined it must be interpreted, there is no other way around it and there is no other provision in the Constitution governing this.

That is why the Supreme Court is very important, because this document that binds our government together is one of the most loosely written legal documents around.

My only point in saying that the decision was unpopular on AD was to point out that I wasn't picking a polarizing case that no one can agree upon [like Roe v. Wade].

As I said before, then fine...How 'bout the government uses someone's house to build a private golf course. It brings in tax revenue, which could be used for schools and the general welfare. So therefore, a private golf course is "public". As Amlord said, that interpretation completely ignores what is written. It doesn't take a legal scholar [which I obviously am not...yet...lol] to tell that public does not mean private.

CP

Which is exactly why the Supreme Court needs to take (dare I say it?) the most conservative view of the Constitution. Otherwise, when it says "general welfare" it means pretty much anything goes (oh wait, that IS how the USSC has interpretted the general welfare clause ) Or when it says "public use", it might mean "private use which results in a public gain".

Expanding the meaning opens up Pandora's box, which unfortunately has already happened and we know that the miseries of Pandora's box are impossible to recapture.

What you seem to blame on the court I see as "by design". As a legal document that has the purpose of documenting the structure and function of our government as well as protecting our rights it is incredibly vague and full of holes.

If you give a group of legal minds a document like that and charge them to interpret it then what we have seen through history is a natural result, and given the charge of the Supreme Court that must have been anticipated and even designed. If it wasn't then the people that wrote the document certainly weren't very smart.

It is the job of the legislature to tighten up that document through the amendment process and that is their check upon the supreme court if they don't like the decisions they make.

CP- I was hoping someone would jump on this one- because, it was a pretty universal condemnation of the SCOTUS decision here- but based pretty simply on nearly 200 years of precedent involving eminent domain- and precedent seems to be everything in court- correct?

Okay- how easy is this subject?

The Alaskan pipeline is privately owned- for oil companies to make money. Period. They used eminent domain to seize a pretty large number (for Alaska) of Alaskans property. Siezed from a private landowner and given to a corporation.

There is no real difference between the seizing of land in Alaska, or the land in New London. Basically, the public is and will be better off by the goverment siezing this land and forcing developement upon it.

So, since, I think, if I recall right- the original "clarification" of eminent domain was in the early 1800s, dealing wtih an eminent domain siezure of a property owner, to allow ore, from a private company, to be shipped over another private property owner's land.

So where was the "legislating from the bench" in this? Weren't they legitimately interpreting constitutional law- even if we don't like the decision?

What if it had gone the other way- okay- a hypothetical- you CAN NOT sieze a private land owners property unless it is used EXCLUSIVELY by the goverment on goverment OWNED AND OPERATED infrastructure- everything from toll roads to the Alaskan pipeline would be impossible to "privatize"- correct?

Would THAT scenario been any different in "legislating from the bench"?

I tend to think that this whole phrase is really just sour grapes, by either side that uses it. The real devil here is poorly worded legislation, that the court is forced to deal with, and change, and really has no choice in the matter legally.

While reading through this thread I am surprised no one has brought up the case of Santa Clara County v. Southern Pacific Railroad which gave corporations personhood thru the 14th amendment. If this is not the best example of judicial activism I don't know what is.

SANTA CLARA COUNTY v. SOUTHERN PAC. R. CO.,118 U.S. 394 (1886)



Corporate Law: A History



I knew a little about this from constitutional history in school long time ago, but never really thought about it until watching the documentary "The Corporation".

Of all the debate around a bad decision by the SCOTUS - I think Cadman may have the most truly egregious bad decision- but my question is this- Is a bad decision legislating from the bench?

1. Does the Supreme Court in fact have the authority to create new law?

Not to my mind. There is not enough meat on two items of our govt. that are "being practiced" but are not explicit enough for me in our Const. One is life tenure for SC judges (I know! That's not directly on topic; but, allow it for a minute please ), the other is the concept of "judicial review" (by judges).

2. What do you feel is the "proper" role for the Supreme Court in the "legislative" process?

To try cases determining guilt/innocence, sentences (or damages), contradictions in law, and/or "present day contexts" interpretations of the Const. This is to be in both criminal and civil cases, and as determined by Juries of present-day-in-life peers. To me that says no judges "decide" anything other than court room process and protocol. And therefore, the SC is not yet a "court" cuz it has no such jury structure. (My reading of the Const. says only juries decide the heavy stuff.) And, the desirability for present-day-in-life contexts, says limited terms for judges, to be sure that we are getting it, and not yesterdays values, etc. (Hopefully this is the closure on my above topical indirectness.) This "Jury constitutional review" is OK by me.

3. Do controversial cases, where the Constitution is unclear and provides no easy resolution, reaffirm the need for courts to "legislate" or challenge it?

If it's jury based, as in the above suggestion, yes! Otherwise it's "unclear and provides no easy resolution" !

ps No Santa Clara decisions would be allowed (I hope) by Juries acting for the general as opposed to special interests welfare. (See above Cadman ff!)