Judicial temper tantrums
Or more specifically, the temper tantrum thrown by certain highly placed legislative members. To quote certain choice bits from this article:
The above position is based on the following positions:
The Free Trade movement is very much enamored of the idea of a global market-place. This same marketplace exists in the form of ideas as well as material goods. Racism was once an idea that held a lot of weight, not just here but elsewhere as well, and that has since gone by the way side. Right now the rights of women are a point of confrontation in the global idea war, conflicting with entrenched historical views of women's roles and the more emancipated ideas of the west. These are the standards that bodies like the UN and WTO codify and promote, and are then used in judicial decisions during assessments of 'community standards'.
Part of the problem faced by the judiciary is that frequently it has to determine how laws passed umpteen years ago apply to modern circumstances. The Constitutional Congress didn't have the first clue that an interstate, instantaneous communications medium would ever exist. Sometimes documentation about a debate surrounding the law or amendment is used to gather what the original intent of the law or amendment was and use that to determine how to apply whatever it was to the new fangled thing under current debate. Other times a judgment call is made to determine the intent of the law under question, and then that judgment call is applied.
Other times the judiciary is called upon to decide on completely new things. One example of this is how to apply the wiretap law to a request to intercept internet communications. Before there was much case-law on this one, it was a coin-flip whether or not the judge would permit a wiretap of this nature. Or even if a judge needed to be involved in it or not. In the absence of legislation, the Judiciary is charged with determining how an action fits into the existing legal framework. Oddball judicial decisions can make for a Congress ready and willing to tackle this new issue. In this case, the wiretap laws were amended to address non-phone interceptions of communications.
We also exist in a community of nations. The US is one of a scant handful of nations that still permit the death penalty, and is the only 'first world' nation that still does so. This one item manages to resist 'peer pressure' from our community of nations because a large majority of Americans support the idea and because the US is large enough that economic sanctions aren't really a possibility. For issues that do not have such wide-spread and strongly held beliefs, such as immunization standards for children, case-law can and does depend on international precedent.
One high-profile area where this very topic is at the fore-front is gay-marriage. Canada is on the verge of approving it. Several European states already permit it. The liberal minded of America is attempting to get it in place here, and is being met with staunch resistance from conservatives. In time, measurable in decades, this will eventually be resolved in favor of gay-marriage. But we'll have to go through a lot of pain in the mean time.
The Judiciary is not running amuck. The Judiciary is running in an international environment, and in a legislative environment that is much more conservative than it has been anytime in the last forty years. This provides a stark contrast between the legislative and judicial branches of government. The Judiciary is not beholden to Congress for marching orders, only to provide a body of law and confirm appointments to the bench. Should the existing conservative environment last another ten or fifteen years, a future democratic majority would have identical issues with a 'backwards' Judiciary.
Mr. DeLay faulted courts for what he said was their invention of rights to abortion and prohibitions on school prayer, saying courts had ignored the intent of Congress and improperly cited international standards and precedents. "These are not examples of a mature society," he said, "but of a judiciary run amok."Hello? One of the benefits of being raised the way I was is that I get to see both sides of a story. That doesn't mean I agree with the blithering idiot side of the argument, I just understand where they are coming from. I see that here. And I disagree with it none the less.
The above position is based on the following positions:
- The Judiciary enforces laws set by Congress and the Executive
- The laws of this country come from Congress and the Executive, as did the Constitution in the beginning and in the form of the amendments since inception
- Legal precedent is based on existing case-law in this nation, the laws and debate surrounding those laws, and any international treaties that have been ratified
- We live in a community of nations, and there are minimum standards of behavior in that community
- Technology changes how past laws and precedent can be applied
- Congress itself changes its own mind every time the majority shifts
The Free Trade movement is very much enamored of the idea of a global market-place. This same marketplace exists in the form of ideas as well as material goods. Racism was once an idea that held a lot of weight, not just here but elsewhere as well, and that has since gone by the way side. Right now the rights of women are a point of confrontation in the global idea war, conflicting with entrenched historical views of women's roles and the more emancipated ideas of the west. These are the standards that bodies like the UN and WTO codify and promote, and are then used in judicial decisions during assessments of 'community standards'.
Part of the problem faced by the judiciary is that frequently it has to determine how laws passed umpteen years ago apply to modern circumstances. The Constitutional Congress didn't have the first clue that an interstate, instantaneous communications medium would ever exist. Sometimes documentation about a debate surrounding the law or amendment is used to gather what the original intent of the law or amendment was and use that to determine how to apply whatever it was to the new fangled thing under current debate. Other times a judgment call is made to determine the intent of the law under question, and then that judgment call is applied.
Other times the judiciary is called upon to decide on completely new things. One example of this is how to apply the wiretap law to a request to intercept internet communications. Before there was much case-law on this one, it was a coin-flip whether or not the judge would permit a wiretap of this nature. Or even if a judge needed to be involved in it or not. In the absence of legislation, the Judiciary is charged with determining how an action fits into the existing legal framework. Oddball judicial decisions can make for a Congress ready and willing to tackle this new issue. In this case, the wiretap laws were amended to address non-phone interceptions of communications.
We also exist in a community of nations. The US is one of a scant handful of nations that still permit the death penalty, and is the only 'first world' nation that still does so. This one item manages to resist 'peer pressure' from our community of nations because a large majority of Americans support the idea and because the US is large enough that economic sanctions aren't really a possibility. For issues that do not have such wide-spread and strongly held beliefs, such as immunization standards for children, case-law can and does depend on international precedent.
One high-profile area where this very topic is at the fore-front is gay-marriage. Canada is on the verge of approving it. Several European states already permit it. The liberal minded of America is attempting to get it in place here, and is being met with staunch resistance from conservatives. In time, measurable in decades, this will eventually be resolved in favor of gay-marriage. But we'll have to go through a lot of pain in the mean time.
The Judiciary is not running amuck. The Judiciary is running in an international environment, and in a legislative environment that is much more conservative than it has been anytime in the last forty years. This provides a stark contrast between the legislative and judicial branches of government. The Judiciary is not beholden to Congress for marching orders, only to provide a body of law and confirm appointments to the bench. Should the existing conservative environment last another ten or fifteen years, a future democratic majority would have identical issues with a 'backwards' Judiciary.
posted by Corwin at 2:12 PM
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