Why is it that Americans think it is acceptable for judges to make new laws and...?

Question

circumvent the legislature? Just because a judge rules a particular way does not mean that the decision is legitimate.

Here is an example: Read the answer from elway_the_cat.

http://answers.yahoo.com/question/index?qid=20061128200729AAAndVT&r=w

I am not at all making fun of this person nor singling them out. I am pointing out that this person's answer shows how Americans do not understand the role of the courts.

Note I am a born and raised American.

The difference here is how much latitude a judge should have. Brand new law is up to the legislature.

The 10th Amendment was set up so that if the Constitution does not explicitly discuss a matter, it was up to each state to deal with it. The founders did not want a strong central government.

I guess that I cannot get through what I am asking so that most people here get it.

Answer 1

I get you. I get you 100%. But there are some who will never get you because they have been taught, directly or indirectly, by the cynical law school professors. I've got a quote for you. This is from the book "Of Power and Right: Hugo L. Black, William O. Douglas, and America's Constitutional Revolution," by Ball and Cooper, published in 1992.

"Columbia [Law School] was the place to be in the late 1920s. It was the home of the legal realist movement, which [William O.] Douglas became a part of almost immediately. Building on the earlier work of Oliver Wendell Holmes, John Chipman Gray, and Roscoe Pound, the realists insisted that judges are important participants in the government and society. The law is and must be influenced by economics, politics, and social reform; it is clearly more than the product of accurate fact finding and the analytically precise interpretation and application of rules. Douglas carried this sense of the nature of law with him throughout his career."

When this passage refers to "the law is ... influenced by," the words "the law" mean the decisions that judges render. These cynics believed that there is no such thing as an objective interpretation of law by judges. They believed that "judges are only human" and thus that judges are entitled to be just as opinionated as politicians and voters and that those opinions should -- and indeed "must" -- be part of how judges render their decisions when they interpret law.

The bad news is that these cynics are the dominant force in the law schools and in political science departments and in jounalism. But there is some good news. Not all professors are like that. One very prominant professor who didn't succumb to that cynicism was Prof. John Hart Ely, who wrote in 1980:

"About forty years ago people 'discovered' that judges were human and therefore were likely in a variety of legal contexts consciously or unconsciously to slip their personal values into their legal reasonings. From that earth-shattering insight it has seemed to some an easy inference that that is what judges OUGHT to be doing. Two observations are in order, both obvious. The first is that such a 'realist' theory of adjudication is not a theory of adjudication at all, in that it does not tell us WHICH values should be imposed. The second is that the theory's 'inference' does not even remotely follow: that people have always been tempted to steal does not mean that stealing is what they should be doing. This is all plain as a pikestaff, which means that something else has to be going on. People who tend to this extreme realist view must consciously or unconsciously be envisioning a Court staffed by justices who think as they do. That assumption takes care of both the problems that I've mentioned. It tells you what values are to be imposed (the commentators own) and also explains (at least to the satisfaction of the commentator) why such a Court would be desirable. But it's a heroic assumption, and the argument that seems to score most heavily against such a 'realist' outlook is one that is genuinely realistic -- that there is absolutely no assurance that the Supreme Court's life-tenured members (or the other federal judges) will be persons who share your values."

That was from "Democracy and Distrust." My ONLY objection to that passage is that "realism" started at least 15 years before Prof. Ely said. "About forty years ago" means roughly 1940, but the realists had already been around by the time William O. Douglas was in law school at Columbia University in the mid-1920s. I think that Prof. Ely was trying to pretend that Supreme Court Justice William O. Douglas was not a realist.

Anyway, I hope that this helps to explain why it is that so many Americans do not understand that judges are only supposed to interpret law, not to make it.

Answer 2

New laws are made all the time. Who makes them, does it really matter. Laws are just a set of rules that we have written down to make it easier to live with each other.

Old laws are abandoned as we determine they should no longer apply to us. At one time it was legal to own slaves, that law was changed.

So it doesn't matter if Americans think it is acceptable for judges to change the law (they would say they are interpetating the laws) because eventually the public would have the law enacted to reflect the current opinion of the majority.

A judge makes a decision and if the public doesn't like it, it will be overturned on appeal, if not the first level then a higher court will do so. If its really caught the public eye, the politicians will make the law so that the appropriate decision will be made.

And if the decision has to do with another country, the judge will be allowed to make any decision he wants so long as the locals are kept happy.

Answer 3

Actually, that's not correct at all. I suggest you do a bit of research into how the court system works in the USA. Judges make every effort to preserve the Legislative Intent when enforcing laws. However, often the intent is ambiguous. I recommend to you an article in the Arkansas Law Notes 2005 by Professor Michael W. Mullane, beginning on page 73. The article is very in depth and describes statutory application in it's entirety. Judges don't make new laws at all. They merely interpret and apply statutes, and do so with the intent to preserve the intent of the legislature that enacted the statute AND to further the policy decisions of the legislature in the enaction of the statute.

Answer 4

The government does not have to follow a law that was not made by the legislature apparently the judges don't understand this!

Answer 5

Wow judges do not make laws, they Interpret the law. Secondly Legislative makes the laws. Executive branch interprets the laws. And why do people always pick on Americans? If anyone has noticed I think we are quite fine without snotty comments.

Answer 6

I stated this this morning. He should be punished. it really is revolting - i could not even watch it on the television. regrettably, this occurred in Texas the position there is an exception to the regulation relative to corporal punishment of one's personal little ones. If this occurred in NJ, the position I stay, he likely should be further up on baby endangerment expenses and ought to very almost absolutely lose his activity. the different situation is this occurred in 2004, so there ought to correctly be a Statute of obstacles situation. He ought to destroy out unscathed. it really is shameful.