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From: myers@uwmacc.UUCP (Jeff Myers)
Newsgroups: talk.abortion,net.legal
Subject: Re: Interesting legal issues
Message-ID: <309@uwmacc.UUCP>
Date: Tue, 30-Sep-86 10:34:51 EDT
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Posted: Tue Sep 30 10:34:51 1986
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> 	Recently I read an interesting piece written by a lawyer about the 
> constitutional legality of the decisions of the supreme court becoming the
> law of the land.  Given as evidence were three decisions handed down since
> 1957.  These are:
> 
> 	 1. Brown v. Board of Education (1957) [Mandatory desegregation],
> 	 2. The Madeline Murray O'Hare case (1963) [No prayer in schools],
> 	 3. Roe v. Wade (1973)  [Legalized abortions on demand].

Roe v. Wade is also a landmark privacy issue case, resting on other precedent.

> 
> 	Now I am intrigued by this information.  It is true that the consti-
> tution gave legislative powers only to congress, and (*in my opinion*) the
> judiciary does _not_ have the power to legislate.

If you've ever taken a look at a statute or a constitution, you would realize
that they are not written in a crystal clear fashion -- in order to implement
law, it must be INTERPRETED.  That is what courts do.

Considering balance of power issues, the federal govt is just a blur anyway.
Executive agencies legislate thru federal regulations; the legislature
regulates the war powers of the commander in chief; the courts do legislate
in a sense thru their interpretations of law.

It is a very real question where to draw the line, but the Nuevo Right talks
like it's an on-again off-again problem...it's not that simple.  Judgement
is by definition interpretation, and hence in a very real since is
legislation.  Laws are so much mulch until interpreted by courts.

> As far as I can tell (and I'm no attorney) precedent is useful
> in civil or criminal cases, but not in questions of constitutionality.  I am 
> a citizen of this country and proud of it.  I just can't sit here and let
> the balance of power be upset by the supreme court.  They are supposed to be 
> above politics because of their life terms.  They are also sworn to uphold the
> constitution _as_it_stands_, not as they see it.
> 
>    !ihnp4!oswego!gacs3651 (Robert Knighton)

Precedent is precedent, until overruled by the courts themselves, or by
statute.  Man/Woman is a political animal; judges are human; hence judges
are political.  No amount of ranting that they are not allowed to interpret
law is going to change that.

-- 
Jeff Myers				The views above may or may not
University of Wisconsin-Madison		reflect the views of any other
Madison Academic Computing Center	person or group at UW-Madison.
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