Judicial Legislation

I'm sure we can all agree that the functions of the legislative and judicial branches should be kept separate. This seems to refer to the notion of an activist judiciary, or one that interprets the application of the 14th Amendment (equal protection, due process clause) to the states more literally, thus ensuring that many of the rights enshrined in the federal Bill of Rights (speech, religion etc.) are guaranteed over the objections of the state. That's for another separate topic, so I'll comment on this one. My view is that every judge, when he makes a ruling or sets a new precendent according to our common law traditions, he/she is actually legislating, for new laws are being made. Lawmaking isn't reserved simply for legislative or executive. The judiciary, as Hamilton points out in Federalist 78, has the power of nullification of laws that aren't in agreement with the constitution. While that might strike some as unconstitutional, this was designed to protect the minority against t... Read more

The Author, as I've been called several times on here, left this one vague on purpose, in part to see how the people that responded to it would interpret it. The answers have been both enlightening and informative, to a degree. Thanks for the responses.

Interesting phraseology. Does this mean activist, liberal judges who fabricate law and constitutional mandates through irresponsible verdicts? Increasingly important for people evolving more toward conservative viewpoints. Increasingly rationalized and/or denied by people evolving toward more liberal viewpoints.

UPDATE: Ambiguous wording is not the problem. At one time, the word marriage was not ambiguous whatsoever. Now society would have us believe otherwise. The framers could never have anticipated some of the things that are happening these days but they did anticipate change and gave us a way to change the laws and the Constitution to align with that change. This is the purpose of congress. Allowing judges who aren't accountable to anybody to do this in their stead is incredibly foolish. O.C. The founding fathers must be thrashing about wildly in their graves.

I agree with Eschew about the phrasing.. interesting.. and nonsensical. Unless, of course, the author is implying something about so-called activist judges. I find as much fault with lawmakers who write bad law as I do with judges. Write clear and unambiguous law based on the Constitution and judges won't have the opportunity to interpret said law to suit their own agenda.