Activist Judges B.S.

[elwoodblues]

Where is it written that they can't look to how other countries reason through similar legal issues to learn from them? The specific example given was a death penalty case. Where does the constitution say what "cruel and unusual" means? Where does it say "cruel and unusual within the context of what is unusual in the United States"?

[elwoodblues]

The reason for looking to International law in 1776 are the same as they are now...to look for persuasive arguments in similar situations abroad where there is isn't a clear answer in domestic law.

[hetron]

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Couldn't agree more, but when was the last time the 10th admendment was invoked to overturn a federal law? A strict reading of the 10th would prohibit much of the federal governments powers, which might not be a bad thing.

My point about inventing rights is when they find rights that are not in the 10th amendment, or anywhere else. Or as Kennedy recently did when he invoked International standards on the death penalty case. I found that frightening. A supreme court justice believing that international opinion should be a guide for his decisions, not the US Constitution.

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I don't know the context in regards to Kennedy remark, but it doesn't sound like it has anything to do with "inventing rights". It sounds more like it has to do with precedence. I'm not agreeing with it, but it is comparing apples to oranges IMHO.

[vulturesrow]

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The reason for looking to International law in 1776 are the same as they are now...to look for persuasive arguments in similar situations abroad where there is isn't a clear answer in domestic law.

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Im not trying be snide, but do you actually think there are cases in this day and age that require us to look beyond American precedent and common law? I am genuinely curious because knowledge of law is strictly amateur.

[elwoodblues]

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Im not trying be snide, but do you actually think there are cases in this day and age that require us to look beyond American precedent and common law?

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Require? No
We might benefit from the wisdom of courts in other countries and apply the same thinking as them? Absolutely

[fluxrad]

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The first one that comes to my mind is Bush Vs Gore in the Florida Supreme Court. The Fla. Legislature had defined in detailed laws the electoral procedure for delegating electoral college members. Gore sued and got the Fl Supremes to “interpret” the law somewhat differently “in the interest of fairness”. In other words, the Democrats in the Court rewrote/ignored State election codes to press their party’s agenda.

Whether you agree or disagree with the result, if you look up the exact statutes and read the Court’s ruling – The judiciary created law.

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I would disagree with you in the instance of Bush v. Gore.

However, in order to be fair. Could you please cite at least two instances where conservative justices (or conservative run courts) legislated from the bench.

Also, would you consider Griswold activist?

[vulturesrow]

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Require? No
We might benefit from the wisdom of courts in other countries and apply the same thinking as them? Absolutely

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Do you have any examples?

[elwoodblues]

I think a great example is the one originally given to demonstrate how bad it is to look to foreign courts --- assisting the courts in defining cruel as that phrase, definitionally, requires exploring social contexts to determine what is "unusual" (as the courts must first determine what is the "usual" before they can determine what is unusual.

[Cyrus]

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I have a very REAL problem with ANY judge who LEGISLATES from the bench.

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Are you at all aware of the underlying tenets of that strange concept called common law ? Seems like, once more, you truly have no idea of what you speak.

I mean, wannabe ignoramuses can only aspire at your exalted heights of ignorance.

No offense...

FYI, the legal system of the United States is based on the common law of England. Today English law is still the law of the land in some states. The California civil code (Section 22.2) states that the "common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or Constitution or laws of this state, is the rule of decision in all the courts of this state."

The distinguishing features of the common law are that it is based on a system of rights and most of the law is judge-made.

Common law is largely unwritten. Judges "create" the law by resolving disputes according to general principles. Thus, decisions reached in cases are very important and actually make up most of the law. That is what is in all those law books, it's cases and more cases and then more cases ---for example Jaxmike versus Education.

[ripdog]

Anybody who quotes 'This is Spinal Tap' in their location can't be all bad. And I would love to see some examples of the "rampant legislation from the bench".