The Constitution and 'judge-made laws'

[Delta4Embassy]

Judge made law is called Common Law. Often, at least here on-site, some people are under the impression a judge cannot make a law, or alter how a law is defined and exercised. Wrong, judges do that all the time. A related issue is the following article:
The Living Constitution | University of Chicago Law School




The Living Constitution
Author:
David A. Strauss

Do we have a living Constitution? Do we want to have a living Constitution? A living Constitution is one that evolves, changes over time, and adapts to new circumstances, without being formally amended. On the one hand, the answer has to be yes: there's no realistic alternative to a living Constitution. Our written Constitution, the document under glass in the National Archives, was adopted 220 years ago. It can be amended, but the amendment process is very difficult. The most important amendments were added to the Constitution almost a century and a half ago, in the wake of the Civil War, and since that time many of the amendments have dealt with relatively minor matters.

Meanwhile, the world has changed in incalculable ways. The nation has grown in territory and its population has multiplied several times over. Technology has changed, the international situation has changed, the economy has changed, social mores have changed, all in ways that no one could have foreseen when the Constitution was drafted. And it is just not realistic to expect the cumbersome amendment process to keep up with these changes.

rest at link.

 

[C_Clayton_Jones]

Judge made law is called Common Law.

And statutory law is paramount to common law when both come into conflict.

‘Judge-made law’ is also inaccurate and misleading, where judges don’t ‘create’ new law. Instead, judges interpret statutory laws enacted by legislative bodies. Over time as similar cases concerning the same statutory law are interpreted in a consistent manner by other judges, precedent is established and followed accordingly.

But common law can always be replaced by statutory law reflecting the will of the people when determined to be appropriate by the people.

 

[George Costanza]

Judge made law is called Common Law.

And statutory law is paramount to common law when both come into conflict.

‘Judge-made law’ is also inaccurate and misleading, where judges don’t ‘create’ new law. Instead, judges interpret statutory laws enacted by legislative bodies. Over time as similar cases concerning the same statutory law are interpreted in a consistent manner by other judges, precedent is established and followed accordingly.

But common law can always be replaced by statutory law reflecting the will of the people when determined to be appropriate by the people.

I always enjoy your posts. You are a calm, voice of reason in the midst of madness. (I am here referring to this Board in general, not to this particular thread, which is a very good one, IMO.)

 

[Delta4Embassy]

Thanks. As someone concerned with law I believe it's a conflict of interest to take a side in the whole Democrat v Republican, liberal v conservative. I'm only on the side of the law. Consequently, whatever side of the fence is in the right under thr law is usually where I come down. May not agree with all laws, but am bound to obey them.

 

[DGS49]

The Living Constitution is a fiction created by those who don't like what's actually in the Constitution.

One imputed role of the judiciary (not stated in the Constitution, by the way) is to assess whether the laws created by Congress are contrary to the U.S. Constitution.

That is, they read the law, decide what it means, and compare it to what the Constitution says. And they rightly give Congress as much leeway as possible, sometimes straining logic to the breaking point to allow a law to be implemented, even when it APPEARS to contravene the Constitution. A good example of this phenomenon is when the USSC last year allowed major provisions of "ObamaCare" to stand, based on an understanding that the penalty for not getting coverage was actually a "tax."

And there are A FEW elements of the Constitution that are amenable to evolution over time. The one provision most cited as an example of this principle is the 8th Amendment's prohibition of "cruel and unusual" punishments. Society's views on what is cruel and unusual have evolved, and thus the Court has rightly adjusted our understanding of those words over time. For example, at the time of the Constitution the "latest thinking" in penology was that stealing a horse was a capital crime. Now, maybe not. So a criminal statute calling for execution of horse thieves would probably be tossed out by the USSC.

On the other hand, starting with President Roosevelt's nominees in the 30's, the USSC has grossly abused its power to assess the Constitutionality of laws in order to promote and bring about a more powerful and expansive Federal Government, and to minimize the power of states to make policies and laws where the Federal government decides to act, even when that Federal power is not granted.The biggest and most eggregious example of this phenomenon is what we call, "Social Security."

The President, Congress, and the USSC thought that this was a "good idea," and simply ignored the fact that Congress has no power to do it in the Constitution. And furthermore, the 10th Amendment of the Constitution states that the powers not specifically granted to the Federal Government (i.e., Congress) are reserved to the states and to the people (that would be US). Clearly, Article I grants Congress no power to create a compulsory pension system, and yet the USSC found that it did.

This is judicial activism, "judge-made law," or whatever else you want to call it (bullshit?).

And it goes without saying that now more than half of the outlays of the Federal Government are clearly unconstitutional, and in most cases, the USSC has found that these bullshit laws and programs are just find and dandy. To paraphrase the late Joseph Sobran, most current Federal Programs are made in spite of the Constitution, not according to the U.S. Constitution.