How the Left Writes Law by Judicial Fiat

[civman110]

There's actually been a lot of debate surrounding this issue and it's implications as of late.

With a common law legal system a judicial ruling based on an interpretation of a codified law is enough to change the law. Essentially with common law - unelected, appointed, supreme court judges have the ability to strike down law, or amend laws (by changing the existing legal interpretation of said law). The judicial branch are forbidden to write law, but in essence are writing law by interpreting existing laws outside of the context and time in which they were originally written - changing how the law is imposed on society.

This example is mainly concerning Canada, but references the US as well, however this example would apply to any common law country that grants non-specific rights and freedoms to individuals.

"What changed with passage of the Charter was that rights and freedoms were given constitutional status, and judges were given the power to strike down laws that infringed on them."

"... most political questions in the United States eventually end up as judicial questions. The same is now true of Canada. Our courts are currently involved in Charter litigation on everything from assisted suicide to prostitution and polygamy.

The problem in all of this is that the Charter is anything but self-executing. It is full of vaguely worded rights and the social science evidence that courts have at their disposal in adjudicating Charter claims is anything but determinative. As a result, judicial decisions interpreting and applying the Charter are bound to be controversial. Reasonable people can and do disagree about the interpretation and application of Charter rights. So do reasonable judges, as evidenced by the number of closely divided decisions in the Supreme Court.

That is why not everyone concerned about rights thinks that it is a good idea to give judges the power to strike down democratically enacted legislation."

http://www.theglobeandmail.com/glob...s-given-judges-too-much-power/article4101032/

Now for example, take the issue of legalizing prostitution. Most people can make well reasoned arguments both for and against it and that's precisely why IMO, this is something that should be decided by the citizens through their elected officials and not by appointed, unelected supreme court justices, but I digress... My point is that it is much easier to change law under a common law system through the judicial branch of the government, rather than submitting legislation to an elected body, obtaining the support of a majority of elected officials (usually from several government branches) to pass the law, then the judicial branch must approve it - in a common law system the other branches of government can be bypassed by judicial decree. My point is that when it comes to creating law, a civic law structure places more weight on the will of the majority by design. In a common law system the majority opinion and sometimes even the other branches of government are largely irrelevant. Our system was designed to separate the powers of government and forbids the judicial branch from writing law.

This is not what has been happening lately.

 

[JollyRoger]

In the U.S., there are only 9 of them and the People have not done anything to stop them. My guess is that the People implicitly understand the role the courts have been given and thus complain about decisions, but do nothing to disband the institution or impeach individual justices.

 

[civman110]

In the U.S., there are only 9 of them and the People have not done anything to stop them. My guess is that the People implicitly understand the role the courts have been given and thus complain about decisions, but do nothing to disband the institution or impeach individual justices.

I think the reason why nothing has been done about it is mainly because the vast majority of the population has no idea how the government, or separation of powers functions, or was designed to function.

Writing law by judicial decree is bad new for everyone. Right now the left is abusing the system, but they won't be in power forever. However, they are setting a very bad precedent for future administrations.

 

[JollyRoger]

So it is the way it is because of our collective culture of indifference? Social justice warrior away then.

 

[Berzerker]

democracy sucks, thats why even most "democrats" will defend it only with built in protections for the minority

 

[civman110]

So it is the way it is because of our collective culture of indifference? Social justice warrior away then.

I'm not the SJW who is suggesting laws and the culture should be changed.

democracy sucks, thats why even most "democrats" will defend it only with built in protections for the minority

Said like a true authoritarian.


The "tyranny of the majority" was taken into consideration at the founding of the US. There is no need to write law in an undemocratic manner.

"Direct democracy was not what the framers of the United States Constitution envisioned for the nation. They saw a danger in tyranny of the majority. As a result, they advocated a representative democracy in the form of a constitutional republic over a direct democracy. For example, James Madison, in Federalist No. 10 advocates a constitutional republic over direct democracy precisely to protect the individual from the will of the majority." https://en.wikipedia.org/wiki/Direct_democracy#Examples

 

[BvBPL]

So is this a rant against Citizen United and Kelo?

 

[Berzerker]

well, somebody had to suggest laws if prostitution aint legal

 

[civman110]

So is this a rant against Citizen United and Kelo?

Not exactly.

It's about the undemocratic manner in which law is now being written by judicial decree. This is a very recent phenomenon.

 

[BvBPL]

No it is not recent.

 

[Evie]

Now for example, take the issue of legalizing prostitution. Most people can make well reasoned arguments both for and against it and that's precisely why IMO, this is something that should be decided by the citizens through their elected officials and not by appointed, unelected supreme court justices, b

Fun fact: that is EXACTLY who decided prostitution should be legal. The Supreme Court Case of which you speak did NOT legalize prostitution - prostitution was already legal under federal law.

What wasn't legal was soliciting customers in public (and therefore safe) space. What wasn't legal was sharing your profits with someone else (for example, a bouncer or protector to keep customers from abusing or killing you). What wasn't legal was operating a safe house for women to, well, safely practice prostitution if they so chose.

In essence, what the law said was "You can be a prostitute, but you cannot do it in any way that doesn' t mean risking your life". And women got killed for it. And THAT is what the Supreme Court said was unconstitutional - because security of your person is a fundamental right (section 7 of the charter).

The supreme court point being "If you aren't going to actually make prostitution illegal, then don't make people risk their life to do it."

 

[civman110]

No it is not recent.

Provide a historical example then.

Fun fact: that is EXACTLY who decided prostitution should be legal. The Supreme Court Case of which you speak did NOT legalize prostitution - prostitution was already legal under federal law.

I wasn't referring to a legal case. I used prostitution as a hypothetical example to explain how changing the interpretation of codified law could legalize prostitution, among other things - by the judicial branch creating law, which they are forbidden to do.

 

[BvBPL]

Provide a historical example then.
.

Missouri v Holland

 

[Evie]

Uh-uh. A hypothetical example you just HAPPENED to reference after linking to the Globe and Mail and in the same post where you explicitly said you were mostly discussing the Canadian supreme court.

Which just so HAPPENED to pass a ruling in the past two years specifically related to prostitution and often (but wrongly) presented in the media and by the Harper cronies as "legalizing prostitution".

Hypothetical. Yeah, right. Intelectual honesty, thy name is not Civman.

 

[civman110]

Uh-uh. A hypothetical example you just HAPPENED to reference after linking to the Globe and Mail and in the same post where you explicitly said you were mostly discussing the Canadian supreme court.

If you read the article it also used prostitution as a hypothetical example. Prostitution is not legal in Canada.

I also never said I was mostly discussing the Canadian Supreme court. You really need to take more time reading posts and articles before you respond.

Missouri v Holland

A little explanation and context please.

From what I can see this case isn't relevant to this discussion; this is the case you're referring to:

"Previously, Congress had passed laws regulating the hunting of migratory waterfowl on the basis that such birds naturally migrated across state and international borders freely, and hence the regulation of the harvest of such birds could not realistically be considered to be province solely of individual states or groups of states. However, several states objected to this theory and successfully sued to have the law declared unconstitutional, on the premise that the United States Constitution gave Congress no enumerated power to regulate migratory bird hunting, and hence the regulation of such hunting, if there was to be any, was the province of the states according to the Tenth Amendment.

Congress, disgruntled with this ruling, then empowered the State Department to negotiate with the United Kingdom, which at the time still largely handled the foreign relations of Canada, a treaty pertaining to this issue. The treaty was subsequently ratified and came into force, and required the Federal Government to enact laws regulating the capturing, killing, or selling of protected migratory birds, an obligation that it fulfilled in the Migratory Bird Treaty Act of 1918.[1] The state of Missouri then sued on the basis that the federal government had no authority to negotiate a treaty on this topic." https://en.wikipedia.org/wiki/Missouri_v._Holland

 

[BvBPL]

Yes, that is an accurate summation. The Supreme Court stripped the states of their ability to self govern on that issue.

 

[civman110]

Yes, that is an accurate summation. The Supreme Court stripped the states of their ability to self govern on that issue.

Because migratory birds don't belong to a single State.

This is not at all comparable to what this discussion is about. The Judicial branch has not passed a law to remove States rights. They are bypassing the other branches of government and changing laws when the judicial branch is only allowed to approve or reject laws and they cannot unilaterally change the Constitution.

 

[Evie]

Can't read the link, because you messed up posting it - it gives me a 403 Forbidden.

Prostitution is not legal in Canada.

As of 2013, when the Supreme Court issued that ruling, it definitely was legal. There was no provision, anywhere in the criminal code, against a woman selling sexual favors, or a man buying them. Period, end of story.

There were provisions against soliciting customers in public, against operating bawdy houses, and against sharing the profits of prostitution with others. But not a single provision, anywhere in the criminal code, saying prostitution itself was illegal.

The supreme court said "If prostitution is legal, then laws that prevent people from doing it safely aren't constitutional".

NOW the situation is a bit murkier. Technically, it's still perfectly legal (as in, you won't be punished for it) to RECEIVE money for sexual favors. However, it's illegal to GIVE money for sexual favors.

So, current situation (broadly) is that being a prostitute is perfectly legal ; but being a prostitute's customer is not.

Now there's the argument whether that means prostitution as a whole is illegal, or whether this is just a roundabout way of achieving the exact same thing the earlier law achieved (force the prostitute, even though they are NOT doing anything illegal, to operate at the edge of the law where they are constantly risking their lives).

In the former case, it's not unlikely the supreme court will say the lawmakers had every right to say so.
In the later case, that new law is toast because it's basically the same as the old law that were already found unconstitutional.

 

[Berzerker]

Said like a true authoritarian.

How does embracing democracy make you anti-authoritarian? Or, how does my rejecting democracy make me authoritarian?

I dont want you and other people making my decisions and that makes me authoritarian?

The "tyranny of the majority" was taken into consideration at the founding of the US. There is no need to write law in an undemocratic manner.

What was their consideration? They rejected "democracy" and created a Republic. And there was no law written, you're complaining that an existing law banning prostitution was in jeopardy of being unwritten. Apparently you support the ban while complaining about authoritarianism. Go figure...

"Direct democracy was not what the framers of the United States Constitution envisioned for the nation. They saw a danger in tyranny of the majority. As a result, they advocated a representative democracy in the form of a constitutional republic over a direct democracy.

For example, James Madison, in Federalist No. 10 advocates a constitutional republic over direct democracy precisely to protect the individual from the will of the majority."

The word democracy does not appear in the Constitution, but since you like it so much when do you decide the will of the majority trumps individual freedom? When you reject the majority's written laws and decide in favor of individual freedom, are you the authoritarian?

 

[civman110]

Can't read the link, because you messed up posting it - it gives me a 403 Forbidden.

I fixed the link.

As of 2013, when the Supreme Court issued that ruling, it definitely was legal. There was no provision, anywhere in the criminal code, against a woman selling sexual favors, or a man buying them. Period, end of story.

In Canada I can assure you prostitution is not legal. You will be arrested for soliciting prostitution, or operating a body house.

What was their consideration? They rejected "democracy" and created a Republic. And there was no law written, you're complaining that an existing law banning prostitution was in jeopardy of being unwritten. Apparently you support the ban while complaining about authoritarianism. Go figure...

You're ignorant on the topic. A Republic by definition is a democratic system.

Do you understand what an example is? I am not complaining about prostitution.