xaoshaen wrote:A judge isn't supposed to uphold a law, regardless of its constitutionality. He's supposed to decide the merits of a case based on the laws established by the legislative branch. If he doesn't think the laws are correct, tough shit, he should've run for Congress.
So in a case where the Law and the Constitution are at odds, which one do they go by?
The other question I have is. If a law is at odds with the constitution (its not constitutional), is that law valid?
For to win one hundred victories in one hundred battles is not the acme of skill. To subdue the enemy without fighting is the acme of skill.
Gidan wrote:So in a case where the Law and the Constitution are at odds, which one do they go by?
Keeping in mind that I'm not a conlaw expert, just a bystander with some academic experience, I'd say that the Constitution will always take precedence.
The other question I have is. If a law is at odds with the constitution (its not constitutional), is that law valid?
A law in direct conflict with the Constitution is not valid and should be stricken from the books. However, it is not the place of the judicial system to so. They're supposed to enforece laws, not subvert the power of the legislative branch.
The problem is, how can a judge uphold a law that he deems unconstitutional. If any law in conflict with the constitution is not valid. Then they should not uphold that law.
Who is resposible for removing laws that are unconstututional if not judges?
For to win one hundred victories in one hundred battles is not the acme of skill. To subdue the enemy without fighting is the acme of skill.
Gidan wrote:The problem is, how can a judge uphold a law that he deems unconstitutional. If any law in conflict with the constitution is not valid. Then they should not uphold that law.
It's not the judge's responsibility to uphold a law at any time, regardless of its validity. It's their job to rule on a [i]case[//i], not a law, according to the law established by the legislature. In the case that there are conflicting laws, it is the judge's responsibility to determine which takes precedence and rule accordingly.
Who is resposible for removing laws that are unconstututional if not judges?
The governmental branch responsible for legislation, appropriately known as the legislative branch.
Judicial review of the constitutionality of laws is a tradition of over 200 years now, if I have my dates right. It's not going to change. Get over it. Look at the quotes I posted about the "Tyranny of the Majority" that the Founding Fathers were worried about. Judicial review provides some protection against this. It's a good thing.
Martrae wrote:Also, I must have missed the day they talked about the Gay Marriage Section of the Constitution...someone refresh my memory....
What's that? There isn't one? Then what was that judge basing his ruling on?
We all know damn well marriage isn't in the constitution. Bush is still trying to push that through to put it in though.
He rulling was basedon the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. He deemed that this amendment violated that.
Exactly, it's not in the Constitution because it's not the government's business.
Inside each person lives two wolves. One is loyal, kind, respectful, humble and open to the mystery of life. The other is greedy, jealous, hateful, afraid and blind to the wonders of life. They are in battle for your spirit. The one who wins is the one you feed.
I'm arguing against him legislating from the bench...I don't care what issue it was.
Inside each person lives two wolves. One is loyal, kind, respectful, humble and open to the mystery of life. The other is greedy, jealous, hateful, afraid and blind to the wonders of life. They are in battle for your spirit. The one who wins is the one you feed.
Gidan wrote:The problem is, how can a judge uphold a law that he deems unconstitutional. If any law in conflict with the constitution is not valid. Then they should not uphold that law.
It's not the judge's responsibility to uphold a law at any time, regardless of its validity. It's their job to rule on a [i]case[//i], not a law, according to the law established by the legislature. In the case that there are conflicting laws, it is the judge's responsibility to determine which takes precedence and rule accordingly.
So you are for Judges being able to not follow a law when they deem it unconstitutional. That wouls be a law that is in confilct with another law.
Who is resposible for removing laws that are unconstututional if not judges?
The governmental branch responsible for legislation, appropriately known as the legislative branch.
Ahhh so we let the people creating the laws also determine if the laws are constitutional. So there is no form of checks and balances in the gov't. Legislators have supreme power to make laws as they see fit and determin for themselves if those laws follow the constitution. Thats kind of like letting a police officer be the head of an investigation where he is the prime suspect.
For to win one hundred victories in one hundred battles is not the acme of skill. To subdue the enemy without fighting is the acme of skill.
Martrae wrote:I'm arguing against him legislating from the bench...I don't care what issue it was.
They are not legislating from the bench. They are not passing any law. They are determining a law is in violation of the constitution and therefor not valid.
For to win one hundred victories in one hundred battles is not the acme of skill. To subdue the enemy without fighting is the acme of skill.
IT'S FUNNY TO ME HOW A JUDGE WHOSE DECISION WORKS AGAINST CONSERVATIVES IS "LEGISLATING FROM THE BENCH" BUT A JUDGE WHOSE DECISION WORKS AGAINST THE LIBERALS IS "DOING HIS JOB"
Historically, in this country judges have been there to both make sure cases are settled in accordance with the law and in doing this, ensure that the laws in thsi country do not confflict with the constitution. There is a long history in this country dating back before the constitution was even written of judges ruling that laws are invalid. Many colonial judges ruled that local laws were against local constitutions and were thus invalid. This is not a new concept in this country.
There has to be somone to oversee laws and ensure that they do not conflict with the constitution. The judges are the best people for that.
For to win one hundred victories in one hundred battles is not the acme of skill. To subdue the enemy without fighting is the acme of skill.
Gidan wrote:Ahhh so we let the people creating the laws also determine if the laws are constitutional. So there is no form of checks and balances in the gov't. Legislators have supreme power to make laws as they see fit and determin for themselves if those laws follow the constitution. Thats kind of like letting a police officer be the head of an investigation where he is the prime suspect.
Not quite. We elect those people and can send someone up to change/amend/repeal laws we don't like. Problem is, congressmen got wise to this and now pass so many laws, that it's a full time job keeping track of who votes for what. Do you know if your current congressman/woman voted for the gay marriage ban? If you did, would you vote for/against him because of it? I've heard a saying that I've found to be very true, "The People have short tempers to wrongs committed by their elected officials, luckly for the officials, they have even shorter memories." or something to that effect.
Anyway, you can remove the people who write crappy laws and elect people who fix it.
I hope you weren't talking about me.....I could care less if gays marry and voted that way in Ohio. It doesn't affect me one way or another.
What does affect me is judges that think they can make up new rules whenever they feel like it.
Inside each person lives two wolves. One is loyal, kind, respectful, humble and open to the mystery of life. The other is greedy, jealous, hateful, afraid and blind to the wonders of life. They are in battle for your spirit. The one who wins is the one you feed.
The problem with that is that many laws that are passed are not passed because that perticular person voting for it agrees with it or not. It passes either becase the people who funded his/her election want it or because their party does. Congress does not pass laws that the people want. Congress passes laws that will keep them in office and help their party in the future.
For to win one hundred victories in one hundred battles is not the acme of skill. To subdue the enemy without fighting is the acme of skill.
Martrae wrote:I hope you weren't talking about me.....I could care less if gays marry and voted that way in Ohio. It doesn't affect me one way or another.
What does affect me is judges that think they can make up new rules whenever they feel like it.
What new rule did this judge make up?
For to win one hundred victories in one hundred battles is not the acme of skill. To subdue the enemy without fighting is the acme of skill.
Arlos wrote:Judicial review of the constitutionality of laws is a tradition of over 200 years now, if I have my dates right. It's not going to change. Get over it. Look at the quotes I posted about the "Tyranny of the Majority" that the Founding Fathers were worried about. Judicial review provides some protection against this. It's a good thing.
-Arlos
You are absolutely correct concerning the intent of the founding fathers Arlos, not only do the quotes support the idea, but the very design of our government protects against the majority trampling the civil rights of people.
Judicial review on the federal level is not just tradition, it is the function of the judicial branch of government set forth in the constitution. My question is this, are state judges who deem laws voted in on the state level unconstitional referring to federal or state constitution? While the US constitution is the law of the land, it was my understanding that determination of constitutionality (meaning federal) of laws created at the state level was still the domain of federal courts. I may be incorrect in this understanding.
While there is due process and cases are escalated sometimes from the state courts to federal courts, it appears that no one pushes the case for the voters. Meaning that one judges interpretation of the constitutionality of a law is the final line (Seriously, the highest court in the land doesn't even allow decisions by a single individual) I'm sorry but I find it disturbing in any case, regardless of which side of the issue I'm on that a single state judge can basically nullify the will of the voters, with no process or challenge after that.
Raymond S. Kraft wrote:The history of the world is the history of civilizational clashes, cultural clashes. All wars are about ideas, ideas about what society and civilization should be like, and the most determined always win.
Those who are willing to be the most ruthless always win. The pacifists always lose, because the anti-pacifists kill them.
Judges have the power to overturn laws but not create or enforce them.
Legislators have the power to create bills (not laws), but canot ratify them or enforce them
Executives have the power to enforce laws, but not create or ratify them.
Seems pretty balanced really.
"Liberals believe government should take people's earnings to give to poor people. Conservatives disagree. They think government should confiscate people's earnings and give them to farmers and insolvent banks. The compelling issue to both conservatives and liberals is not whether it is legitimate for government to confiscate one's property to give to another, the debate is over the disposition of the pillage."
State judges are basing their decisions based on their state's constitution, as far as I know. Which, I would assume, has some strong resemblance to the real Constitution, but that's an area beyond my knowledge, without spending time researching it.
In any case, judges preventing the rights of minorities from getting trampled on, and the Tyranny of the Majority is a Good Thing. Without that, the US would no longer be a free country.
