An imbalanced former GOP senator shows ignornace of our system for balance of power
- Thread starter OPTIONAL777
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Schumer graduated from Harvard Law. I think he is loathsome but I'm pretty sure he knows the three branches of government. I don't know if he misspoke or was trying to make a point about laws getting passed.
Of course, if it had been Rand Paul or Sarah Palin, we would never hear the end of it.
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The main case all law students study, which is perhaps the seminal case on the issue is...
Marbury vs Madison... the Supreme court declared for itself the right to over rule congress. It basically created the power out of thin air.
Note, I did not say the highest courts should be activist.... I just said it they could be if they so wish.
At the time Jefferson disagreed with Marshall's reasoning in this case, saying that if this view of judicial power became accepted, it would be "placing us under the despotism of an oligarchy."[24] Jefferson expanded on this in a letter he wrote some 20 years later to Justice William Johnson, whom he had appointed to the court in 1804.[25]
http://en.wikipedia.org/wiki/Marbury_v._Madison
Also, courts made most the laws regarding torts and many of the laws regarding contracts.
Its called common law. Over time those laws became codified.
Many conservatives believe courts are activist when then declare laws made by the legislature unconstitutional without really referring to the constitution.
"Marbury v. Madison was the first time the Supreme Court declared something "unconstitutional", and established the concept of judicial review in the U.S. (the idea that courts may oversee and nullify the actions of another branch of government). The landmark decision helped define the "checks and balances" of the American form of government."
The Supreme Court interpreted the Constitution, their right.
They did not make a law, the interpreted existing law, i.e. the Constitution.
If their actions were truly egregious a Constitutional amendment could have been passed to write specifically that the court did not have the right/duty to interpret the law.
They were doing their job as they interpreted their job.
The English language is not precise, like mathematics. Interpretation, especially in the vagueness of the Constitution is an ongoing process, which is what constitutes the nature of a living document.
The Constitution is not Sharia law, it is mutable, precisely because the founders did not think they were God, or speaking for God. They did not view themselves as prophets of God. They just saw themselves as reasonable men, who make mistakes, and created a system that any mistake can be remedied through the courts, the legislative branch, or the executive branch.
I am really sorry you don't understand that...in progressive societies, unlike fundamentalist regressive societies, laws are constantly undergoing change as the society changes.
Judges set legal precedent as to the way a law should be interpreted going forward, but they do not make laws.
The Supreme Court interpreted the Constitution, their right.
They did not make a law, the interpreted existing law, i.e. the Constitution.
If their actions were truly egregious a Constitutional amendment could have been passed to write specifically that the court did not have the right/duty to interpret the law.
They were doing their job as they interpreted their job.
The English language is not precise, like mathematics. Interpretation, especially in the vagueness of the Constitution is an ongoing process, which is what constitutes the nature of a living document.
The Constitution is not Sharia law, it is mutable, precisely because the founders did not think they were God, or speaking for God. They did not view themselves as prophets of God. They just saw themselves as reasonable men, who make mistakes, and created a system that any mistake can be remedied through the courts, the legislative branch, or the executive branch.
I am really sorry you don't understand that...in progressive societies, unlike fundamentalist regressive societies, laws are constantly undergoing change as the society changes.
Judges set legal precedent as to the way a law should be interpreted going forward, but they do not make laws.
Common Law is law made by judges.
"In the United States, the law is derived from four sources. These four sources are constitutional law, statutory law, administrative regulations, and the common law (which includes case law).[10]
...
As common law courts, U.S. courts have inherited the principle of stare decisis.[16] American judges, like common law judges elsewhere, not only apply the law, they also make the law, to the extent that their decisions in the cases before them become precedent for decisions in future cases.[17]....
All states have codified some or all of their statutory law into legal codes. Codification was an idea borrowed from the civil law through the efforts of American lawyer David Dudley Field.[47] New York's codes are known as "Laws." California and Texas simply call them "Codes." Other states use terms such as "Revised Statutes" or "Compiled Statutes" for their compilations. California, New York, and Texas have separate subject-specific codes, while all other states and the federal government use a single code divided into numbered titles.
In some states, codification is often treated as a mere restatement of the common law, to the extent that the subject matter of the particular statute at issue was covered by some judge-made principle at common law. Judges are free to liberally interpret the codes unless and until their interpretations are specifically overridden by the legislature.[48] In other states, there is a tradition of strict adherence to the plain text of the codes.''
http://en.wikipedia.org/wiki/Law_of_the_United_States