Quote from achilles28:
If I may....
Says who?
Marketing a hyper-discreationary brand of jurisprudence under the palatable guise of 'pragmatic legitimacy' is really just a semantic rouse - newspeak - intended to sway the less vernacular-savvy from discovering what it is you really advocate.
To suggest the courts supreme responsibility is that of 'justice for all' to the exclusion of deliberation FIRST predicated on Constitutional Law, is not only arrogant and dangerous, but just plain wrong.
Judges do not make law. They apply it.
Indeed, courts rule on legal 'grey areas' whose antecedents lack insufficient Constitutional clarity.
But judges are EXPECTED to do so in accordance and harmony with the principles and Intent of the Constitution.
To do otherwise would be to reject to the ultimate philosophical framework this country was built on in favor of some adhoc personal agenda that contradicts the very Constitution THEY SWORE TO UPHOLD.
Whats appalling is your haughty dismissal of that 'trite' and 'outdated' document you render almost meaningless - the US Constitution.
Our apparently 'short-sighted' founders were able to fashion the Constitution around immutable human truths that ultimately served as the bedrock for this society, our freedom and the incredible material wealth we now enjoy.
These short sighted men accomplished more than you ever will.
Its funny. You pretend the Founders intent unknowable. And in the same breathe, chastise them for assumably responding in a way you yourself don't know!! You can presume one, but not the other, eh?
Just goes to show what your leanings are.
Thankfully, the vast majority don't subscribe to your anti-constitutionalist tripe.
Feel better? You are misrepresenting or misunderstanding my position, which is that the court's duty is to resolve disputes between litagants. That is the reason that there are courts. The Constitution states that the Courts jurisdiction extends to "cases and controversies." The Supreme Court has held that this does not extend to advisory opinions.
Furthermore, the dispute must be real, there must be an immediate threat or actual harm in existence, and it must remain throughout the duration of the action, including all appeals, except where the judiciable controversy is capable of repetition yet evading review (such as an abortion case, were a woman will give birth before the case is finished).
In short, without litigants, there is no case. Period. So, I don't know what you're complaining about. I am not suggesting that judges ignore the law. I'm suggesting that the law doesn't exist in a vacuum of facts and the facts shape the application of the law.
Sometimes the legislative intent of a law is unambiguous. Most of the time, however, it is not. Even the most obvious law is usually subject to argument.
"It is unlawful to operate a motor vehicle next to a school at a speed greater than 20 miles per hour when children are present."
Sounds simple. OK, when are children present? Are children present if they live in the houses that are on the other side of the street from the school? Are children present on a rainy day, when school's in session, but all the kids are indoors? Are children present when they are on the school yard behind the fence? Or, are children present only when they are on the sidewalk next to the street?
Theoretically, children are ALWAYS present, although they may be 100 miles away.
Furthermore, what exactly is a child? I'm an adult child -- do I qualify? How about, if the driver of the motor vehicle is a minor -- are children present then, because the vehicle's operator is a child?
How about if the driver is an adult, but there's a child in the back seat -- are children present then?
The strict constructionist, will try to discern what the original legislative intent of the law was when it was written. But, if there's no legislative record, then the judge will just guess at the intent -- he/she will claim to some standard of reasonableness, but in the end, it will still just be a guess, because there's no real way to know what the legislators meant when they voted. Moreover, it's quite likely that the legisilators didn't all agree among themselves as to what the law meant when they were voting, so how the hell could the judge possibly know.
The natural law jurist will interpret the law broadly and apply it to every child within a one mile radius of the schoolyard, because this is in the children's best interests.
I can hear the conservatives whining already that this is overreaching and an unreasonable restriction of motor vehicle rights, while the liberals will scream that the law isn't broad enough, and that it really should not be discretionary -- everyone should be driving at no more than 15 miles per hour whether or not children are present!
LOL! This truly cracks me up.
The pragmatist doesn't need any of this crap. He/she looks at the situation and says, "Duh, the law means if there's a reasonable probability that a child could get in front of the vehicle and be struck, when the vehicle is traveling at the normal speed limit imposed when children are not present, then for the purpose of this law under review, 'children are present.'"
Then the pragmatist will listen to the testimony and try to determine if there was a reasonable probability at the time of the alleged infraction, whether a child could have been struck by the vehicle.
So, now which judge do you want?
