This ought to get the blood pumping.
Don't agree with everything you have written, but I agree with the general spirit/tone.
I am gonna have to think on some of this for a while, especially about SCOTUS.
Ironsides, You have completely ignored administrative law, which the largest corpus of law today. Any law is subject to interpretation---sometimes widely varying interpretations---, and that is why we have attorneys, and ultimately the Supreme Court. The framers of the Constitution were wise men ,but they were not godlike.
Congress is certainly not godlike today ,so I think judicial review is a good thing--- even in spite of some of the howlers we have seen in recent years.
So.theflyonthewall: You believe that the Constitution grants the Judicial Branch the power to make law?
Your definition of "make" is at issue here, a matter of logical equivocation. Is interpreting the law "making" the law? I might also suggest that legal precedent also shapes the law ,and that is why the Constitution is a living document and not an historical artifact.
Interpreting the law is a more recent term that lawyers (Judges) like Earl Warren have created to give them power to make law that does not exist in our Constitution. As for legal precedent, it to is not found in the Constitution. Each case must stand on it's own, and be judged on whether the law applies, or does not apply, to the case presented in court, and ajudicated by a jury.Example: Did he violate the Federal Law against kidnapping a person, holding a person against their will and transporting the person across State lines, or not. If the evidence proves beyond a reasonable doubt that he did it, he violated the law, if he did not do it, he did not violate the law. Each case must stand on it's own evidence. Legal precedent has been made up by lawyers and has no Constitutional authority. So, again, Where in the Constitution does it give the Judicial Branch the power to make law?
Our Constitution has its roots in English Common law and legal precedent has it roots there as well, or perhaps even in Roman law. The Constitution does not address all the ins and outs of the legal process, nor was it intended to.
I dislike an activist court at least as much as you appear to, but using legal precedent is not 'activism', but is instead the practice of a prudent jurist (I love puns!!)
You are discribing the use of referencing a law to prove your case. That is proper proceedures in a court. The question still remains this. Does the Constitution grant the Judicial Branch the power to make law? This is a straight up yes or no question. It is shocking how many people do not know the answer.
The judiciary makes "law" all the time by ruling whether or not a law enacted by Congress is legal under the purview of the Constitution. Unmaking a law enacted by Congress because it violates the Constitution is exactly what the framers of the Constitution haad in mind.
And, a Supreme Court decision is the law of the land, period. Unless Congress changes the law impacted by said decision through a new law (generally with more specificity) or a Constitutional amendment. That's why the Supreme Court exists - to protect the rights of the minority from the tyranny of the majority. And, by the way, there are only nine Supreme Court justices, not eleven.
The SCOTUS does not make law.
SCOTUS reviews and interprets law in relation to its Constitutionality.
If you like their decision in a particular case, they have not 'made law' they have "interpreted." If you do not like their decision, they have "made law" by being an activist court.
Works that way for me.
The Supreme Court ruling that a law passed by Congress is Constitutional does not make any new law. It only confirms the law passed by Congress does not violate the Constituion. If it rules that it violates the Constitution, the law becomes null and void. Doing this does not make a new law. Congress must re-write the law to conform to the Constitution. I realize this is a very difficult concept to understand for so many Americans. It only proves how strong the indoctrination of falsehoods have been in our educational system,and our media. The Answer to the question is "Only Congress can make law" period.
Sorry, Ironside, I have no difficulty understanding - I simply disagree with your statements, I understand them perfectly. I also understand very well the operation of all three branches of government.
Charlie, good post!
So you can point out the specific place in the U.S. Constitution where it states that the Executive Branch has the power to make law?
Just to name one of hundreds, let's look at Obamacare. Nancy Pelosi told us "We have to pass the law to find out what is in the law". She passed a law that only had the broad outline of what the Democrats (Only Democrats voted for the law)wanted to do with the nation's health care system. The guts of the law, the fine print of the law was left out. This made it easier to get it passed because, if it were a completely written law, at the time it was voted on, many Democrats would not have voted for it because, the voters would know what the fine print had instore for them, with much higher taxes and Religious violations we are now having to deal with. Pelosi Passed a skeleton law and passed it to President Obama, the Exicutive Branch, for the unelected employees of the Excutive Brance to fill in the guts of the law, the fine print. So you tell me "Who wrote the law?". What has come to be know as Rules, Regulations and Implementing Instruction, the fine print added to laws by the Excutive Branch, is common place in our law today. In fact the exception to this way of runing our government is a law totally written by Congress as it use to be prior to the 1960's and required by our Constitution. Just because it has come to be accepted as gospel does not make it right, lagal, or Constitutional. I use Obamacare as my example because Pelosi let the cat out of the bag as to what they (both Democrats and Republicans) have been doing for a long time. Adding anything to a law passed by Congress makes it a new law. We learned after the Obamacare law was passed by Congress, that Catholic Church and any other religious organization must violate their religious teaching and beliefs and pay for abortion pills for their employees. Had that been written into the Obama care bill by Nancy Pelosi to be voted on by Congress, she would never have gotten the bill passed. Instead, she leaves it out and has the President (Excutive Branch) put it in the law after the fact. So who is making the laws "We the People have to follow", Our Representatives in the Congress or "one person" the President. One person rule is a Dictatorship, and it doesn't matter whether, the President is a Democrat or Republican, it should scare the living daylights out of all Americans. This is why our Founding Fathers limited the power to make law, to the Congress of the United States.
Ironside, curb your enthusiasm! If you look at most "laws" as passed by Congress, they are skeleton laws. The impacted agency fills in the blanks by writing implementing regulations which are published in the Public Register for comments and (sometimes) public hearings. This is true for tax legislation, immigration policy, and numerous other areas.
I am not arguing that Congress' current performance in all areas - not just the Affordable Care Act - has been abominable. If Congress did not want to write and pass "skeleton" laws, they don't have to. Even Lindsay Graham said (and I paraphrase), always leave yourself a back door. Congress refuses to hold themselves accountable because they know their constituents' anger will devolve on someone else.
You hit the nail on the head. This is exacly what has been happening more and more sense the Woodrow Wilson Administration and his support for the Progressive Movement a hundred years ago. A Movement that hates our Constitution because it gets in the way of making the U.S. a Socialist State. That is why Democrats, who are all Progressives today, together with many Republicans who are Progessives, find ways to get around the Constitution like what I am pointing out. Just like Obama wanting to use Executive Orders to get more gun control. Sense when does an Executive Order Trump a Constitutional Amendment. It does in the minds of Progressives. We no longer have the government Our Founding Fathers set up for us. No one living today remembers when our government was being run using the Constitution. What is happening today is not right, legal or Constitutional. I still have hope we can correct this mess, because you see what is happening in Washington, and now hopefully you see why it is against our Constitution. Through educating our children and more voters, we can win back our Republic. Pass it on!
While it is true that the Legislative branch is the only body that can "make" law. The Executive branch had the role of providing guidance to the Legislative branch regarding what laws they need to "make". The Judicial branch has the responsibility to determine if the law passes Constitutional muster or not. Each serve a vital role in protecting the rights of all Americans. The confusion of who "makes" laws comes in when a group does not agree with a ruling by the Executive or Judicial branches of government. Most people do not understand what the Constitution says no matter how much they quote it. There are two camps when it comes how to read the Constitution (among those that read it), Literal and Living. Those that see it as literal believe it is the final word. Those that see it as a living document see it as a framework to review modern things and how the founding fathers would have viewed it. I see it as a living document because there are many things today that the founding fathers could not have visualized and so they provide guidance on how to protect the masses against the abuses of the few. As to the matter of Congress passing skeleton laws. That is something that has always been the case and is nothing new. Members of Congress cannot be experts on every issue that they have to deal with. So for this reason they pass an outline and count on the respective agencies the law impacts to determine how to accomplish what Congress has directed they to accomplish. Where it does fall apart is that the agencies are guided by lobbyists in writing these rules and regulations. That is like having the fox write the rules for how the fox will protect the hens in the hen house. You forgot that we see more and more a fourth branch of government, special interest groups. They by design keep us arguing between ourselves while they set the rules we have to live by.