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What is "judicial over-reach"?

Amelia said:
Extending the Bill of Rights to the federal level is a good example of the Supreme Court basically rewriting the Constitution.

Constitution said Congress couldn't make laws infringing upon our basic rights. SCOTUS saying that states and local communities weren't allowed to do that either is completely out of the bounds of the Constitution.

While I appreciate that states are restricted from tromping on my freedom of expression and religion, it was still overreach for SCOTUS to make that the national law. Same with gun rights. SCOTUS taking that out of states' hands was overreach.
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The supremacy clause gives the federal government the right.
 
Bum said:
You are so far out in the weeds with this.

Judicial adjudicates existing laws....they do not create them
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The "adjudicating" creates new law. That's why it's called "case law".
 
OK, since this is about our history and the founding of our nation, I highly recommend everyone pick up a book, a non-fiction book by and professor of law called "what kind of nation". It is a great read, not too long and can give you an understanding of the key issues that Jefferson and Marshall fought about in regards to the court. It is not partisan, it is history as told by someone without any axe to grind. It is a fascinating read.
 
Vadinho said:
You can disagree all you want, the supremacy clause exists without your consent.
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The Supremacy clause says that if we have a treaty or if Congress passes a law, then it applies to the states.

That means federal law trumps state law on marijuana if the federal government pushes the point.

It does not relate to the Supreme Court saying that when the Constitution says that Congress CANNOT do something that also means states cannot do the thing. Also, trying to generalize the restriction on Congress to being a restriction on the states is the opposite of what the Tenth Amendment says.

But mainly, the Supremacy Clause is a completely different subject.


Generalizing the Bill of Rights from a document protecting citizens from the federal government to a document protecting citizens from state and local governments was judicial activism. And it was done gradually over the course of about a century. Extending the first amendment to the state level did not guarantee that the second amendment would be extended to the state level. It wasn't a matter of "the Supremacy Clause" says this. It was a matter of how daring the courts were willing to be in stepping outside what the Constitution actually said.
 
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Vadinho said:
There is a trend among some to view decisions by the courts as confirmations of existing consensus. In cases where the courts rule 9-0, that is exactly what happens. However, many very difficult cases are won 5-4. That means 4 judges disagreed on constitutional law with the other 5. If you like the decision, you will claim it is confirming existing consensus. If you do not, you can either argue the merits or declare in ignorance that it is new law or fabricated.
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That's not what I do.

I also believe Scalia made up Heller from his own biases.
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He didn't.

Thank God for Earl Warren.
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If you say that, it's because you're in favor of activist judges who make things up.
 
Harshaw said:
That's not what I do.



He didn't.



If you say that, it's because you're in favor of activist judges who make things up.
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Scalia did make it up, that is why he spent so much time on that semi-colon. What Earl Warren did was move the needle towards more freedom for more people, surely that is in keeping with the original intent of our founding.
 
Amelia said:
The Supremacy clause says that if we have a treaty or if Congress passes a law, then it applies to the states.

That means federal law trumps state law on marijuana if the federal government pushes the point.

It does not relate to the Supreme Court saying that when the Constitution says that Congress CANNOT do something that also means states cannot do the thing. Also, trying to generalize the restriction on Congress to being a restriction on the states is the opposite of what the Tenth Amendment says.

But mainly, the Supremacy Clause is a completely different subject.


Generalizing the Bill of Rights from a document protecting citizens from the federal government to a document protecting citizens from state and local governments was judicial activism. And it was done gradually over the course of about a century. Extending the first amendment to the state level did not guarantee that the second amendment would be extended to the state level. It wasn't a matter of "the Supremacy Clause" says this. It was a matter of how daring the courts were willing to be in stepping outside what the Constitution actually said.
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OK, explain what law you are talking about that subverts states powers.


The "supremacy clause" is the most important guarantor of national union. It assures that the Constitution and federal laws and treaties take precedence over state law and binds all judges to adhere to that principle in their courts.


The preemption doctrine originates from the supremacy clause of Article 6 of the U.S. Constitution. This doctrine states that any federal law, even if it is only a regulation from a federal agency, supersedes any conflicting state law, even if that law is part of the state's constitution.
 
Vadinho said:
Scalia did make it up, that is why he spent so much time on that semi-colon.
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:roll:

No.


What Earl Warren did was move the needle towards more freedom for more people, surely that is in keeping with the original intent of our founding.
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Which does not automatically make it judicially (or constitutionally) sound.

Based on everything you've said, you want judges to enact the social policies you prefer, regardless of the Constitution, regardless of the law, regardless of the proper role of the judiciary. So, what you specifically want is judicial overreach.
 
The best recent example of judicial over-reach was all the liberal judges who ruled against the Trump travel ban.

Clearly within the power of the Executive branch and clearly not a Muslim ban.
But ...liberals didn't like it .
And btw I tought the thing was stupid, but the SC shoulr only rule on constitutionality, not stupidity.
 
ataraxia said:
I have heard this over the years, and am not quite sure what it means. I have heard complaints that many judges are "activist" judges, or that they "legislate from the bench". But it seems that they only say this when the judges make decisions they don't agree with. My question is: do they have a choice but legislate from the bench in each new situation?

The reason we have the judicial branch as the third branch of government is that as conditions change- such as with new science and technology or new situations which the current law does not currently address specifically, we need this branch of government to make decisions on what the law SHOULD say. By offering an interpretation, they are in effect legislating. Of course, to do this, they are required to look at the current law, and look at the precedents set by previous court cases. But ultimately, the reason these cases come up is that it has never been addressed before. Ultimately, some judgment is going to be required. And once the judgment is made, it is NEW LAW. The precedent becomes the basis of other decisions related to it. That is in effect "legislating from the bench". That is how the system is set up.

Am I not understanding this correctly? If you think there are examples of "judicial overreach" where judges "legislate from the bench" in a way they are not supposed to, please give some examples and why you would say it's different than other precedent-setting decisions judges have to make.
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IMHO, judicial over-reach is the SCOTUS allowing the federal government to give itself new powers not specifically granted to it by the constitution. The bizarre idea that the federal commerce and taxation powers mean that anything related to economic activity or funded by taxation are indeed constitutional (e.g. PPACA, Social Security, Medicare, Medicaid and SNAP). The new definition of a 'constitutional' federal power seems to be that if something (anything?) is deemed important enough for congress to pass legislation about then it really must be (now becomes?) constitutional despite the 10A assuring us that would not happen.
 
Vadinho said:
My bet is you voted for Trump given your level of knowledge.
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This is what I refer to as the 'lack of intelligence' mantra... I dismiss all mantras such as this on sight...

Try substantive reasoning next time...
 
gfm7175 said:
This is what I refer to as the 'lack of intelligence' mantra... I dismiss all mantras such as this on sight...

Try substantive reasoning next time...
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I did, you failed, sorry.
 
Vadinho said:
OK, explain what law you are talking about that subverts states powers.


The "supremacy clause" is the most important guarantor of national union. It assures that the Constitution and federal laws and treaties take precedence over state law and binds all judges to adhere to that principle in their courts.


The preemption doctrine originates from the supremacy clause of Article 6 of the U.S. Constitution. This doctrine states that any federal law, even if it is only a regulation from a federal agency, supersedes any conflicting state law, even if that law is part of the state's constitution.
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If you're going to quote another site, you should provide a citation giving them credit.

Yes, if a federal law EXISTED, it would apply to the states. THAT is the supremacy clause.

The point was that such federal law did NOT exist which subverted states powers in connection with the Bill of Rights. The Constitution told the federal government (a) you cannot take that right from the people and (b) if we haven't been explicit here about any particular rights or restrictions, the states reserve the rights to decide the matter.


The Constitution tied Congress's hands in connection with freedom of expression and the right to bear arms. It did not tie the states' hands. Congress hadn't made a law tying the states' hands either. There was no law to enforce on the states. The Supreme Court made the law up when they said that the restriction on Congress was also a restriction on states and cities. It was NOT obvious. It took a long time for the Supreme Court to say the Bill of Rights restricted states, and not every right was generalized at once. It was done plank by plank over decades.
 
ttwtt78640 said:
IMHO, judicial over-reach is the SCOTUS allowing the federal government to give itself new powers not specifically granted to it by the constitution. The bizarre idea that the federal commerce and taxation powers mean that anything related to economic activity or funded by taxation are indeed constitutional (e.g. PPACA, Social Security, Medicare, Medicaid and SNAP). The new definition of a 'constitutional' federal power seems to be that if something (anything?) is deemed important enough for congress to pass legislation about then it really must be (now becomes?) constitutional despite the 10A assuring us that would not happen.
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Pretty much.

And while I wouldn't want to give states back the right make laws restricting my freedom of expression or freedom or religion or my freedom to marry whoever I want, this kind of stretching to find any grain of something they could twist to cover their desired goal has made me very cynical about what the Constitution actually means now. It seems that that our overgrown and slow-moving bureaucracy offers us more protection than we now have from the Constitution as interpreted by these agenda-driven judges.
 
Amelia said:
If you're going to quote another site, you should provide a citation giving them credit.

Yes, if a federal law EXISTED, it would apply to the states. THAT is the supremacy clause.

The point was that such federal law did NOT exist which subverted states powers in connection with the Bill of Rights. The Constitution told the federal government (a) you cannot take that right from the people and (b) if we haven't been explicit here about any particular rights or restrictions, the states reserve the rights to decide the matter.


The Constitution tied Congress's hands in connection with freedom of expression and the right to bear arms. It did not tie the states' hands. Congress hadn't made a law tying the states' hands either. There was no law to enforce on the states. The Supreme Court made the law up when they said that the restriction on Congress was also a restriction on states and cities. It was NOT obvious. It took a long time for the Supreme Court to say the Bill of Rights restricted states, and not every right was generalized at once. It was done plank by plank over decades.
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I forgot to add the link, just google supremacy clause and its on the first page, my bad. I have no idea what the hell you are talking about so be more specific. What law? What made up law about restricting Congress?
 
Vadinho said:
I forgot to add the link, just google supremacy clause and its on the first page, my bad. I have no idea what the hell you are talking about so be more specific. What law? What made up law about restricting Congress?
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The Bill of Rights restricts Congress. It does not restrict the states.

Laws made by Congress apply to the states. That is what the Supremacy Clause says.

Laws made to restrict Congress do not automatically apply to the states. States reserve the right to make their own rules if they're not breaking an explicit law or treaty. That's it what the Bill of Rights says. States were not breaking laws or treaties if they made laws restricting speech or gun ownership rights. It was only against the law for Congress to do so.

That's how it was for the first 100 years or so of our existence. Then gradually over the course of the next 100 years or so, the Supreme Court started claiming the Bill of Rights also restricted states. Not all at once. Just one right at a time.



I've said this several times now. I don't see any other way to explain it so I'm probably going to stop now, or soon anyway.
 
Amelia said:
The Bill of Rights restricts Congress. It does not restrict the states.

Laws made by Congress apply to the states. That is what the Supremacy Clause says.

Laws made to restrict Congress do not automatically apply to the states. States reserve the right to make their own rules if they're not breaking an explicit law or treaty. That's it what the Bill of Rights says. States were not breaking laws or treaties if they made laws restricting speech or gun ownership rights. It was only against the law for Congress to do so.

That's how it was for the first 100 years or so of our existence. Then gradually over the course of the next 100 years or so, the Supreme Court started claiming the Bill of Rights also restricted states. Not all at once. Just one right at a time.



I've said this several times now. I don't see any other way to explain it so I'm probably going to stop now, or soon anyway.
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I can see that you really do not understand our constitution. I suggest reading more non-fiction books. You seem like a good person but your interpretation of the constitution is wrong.
 
Vadinho said:
I can see that you really do not understand our constitution. I suggest reading more non-fiction books. You seem like a good person but your interpretation of the constitution is wrong.
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Backatcha, hon.
 
Amelia said:
Extending the Bill of Rights to the federal level is a good example of the Supreme Court basically rewriting the Constitution.

Constitution said Congress couldn't make laws infringing upon our basic rights. SCOTUS saying that states and local communities weren't allowed to do that either is completely out of the bounds of the Constitution.

While I appreciate that states are restricted from tromping on my freedom of expression and religion, it was still overreach for SCOTUS to make that the national law. Same with gun rights. SCOTUS taking that out of states' hands was overreach.
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Didn't this argument pretty much go out the window with the ratification of the 14th Amendment, though?

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." If the Bill of Rights enumerates privileges and immunities that can't be denied to us by the Federal Government, then how can a State Government then go about denying those same privileges and immunities without blatantly disregarding the language of the 14th Amendment?
 
Amelia said:
Extending the Bill of Rights to the federal level is a good example of the Supreme Court basically rewriting the Constitution.

Constitution said Congress couldn't make laws infringing upon our basic rights. SCOTUS saying that states and local communities weren't allowed to do that either is completely out of the bounds of the Constitution.

While I appreciate that states are restricted from tromping on my freedom of expression and religion, it was still overreach for SCOTUS to make that the national law. Same with gun rights. SCOTUS taking that out of states' hands was overreach.
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Incorporation theory. Justice Black was an advocate.
 
Blue Dog said:
The question is subjective because defining “overreach” is problematic. The majority of activist decisions could fit that label depending on ones politics. Striking down a state or federal law is an incredible power for the judiciary to wield. At times it’s completely justified, when laws being passed blatantly violate the text of the constitution. The flip side is judicial restraint or deference. The argument being it’s up to the people to push their elected reps to change the law vs going to the SC. The Griswold decision is a good example of the conundrum.
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I like Goldberg's concurrence in Griswold. It seems to me that a literal reading of the 9th Amendment makes any charges of "overreach" in the judicial discovery of new rights irrelevant. I have yet to see any self-proclaimed "strict constructionist" make a coherent argument as to how they would go about defining a 9th Amendment unenumerated right.
 
ataraxia said:
I have heard this over the years, and am not quite sure what it means. I have heard complaints that many judges are "activist" judges, or that they "legislate from the bench". But it seems that they only say this when the judges make decisions they don't agree with. My question is: do they have a choice but legislate from the bench in each new situation?

The reason we have the judicial branch as the third branch of government is that as conditions change- such as with new science and technology or new situations which the current law does not currently address specifically, we need this branch of government to make decisions on what the law SHOULD say. By offering an interpretation, they are in effect legislating. Of course, to do this, they are required to look at the current law, and look at the precedents set by previous court cases. But ultimately, the reason these cases come up is that it has never been addressed before. Ultimately, some judgment is going to be required. And once the judgment is made, it is NEW LAW. The precedent becomes the basis of other decisions related to it. That is in effect "legislating from the bench". That is how the system is set up.

Am I not understanding this correctly? If you think there are examples of "judicial overreach" where judges "legislate from the bench" in a way they are not supposed to, please give some examples and why you would say it's different than other precedent-setting decisions judges have to make.
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Using the interstate commerce clause to protect Mojave tortoises, they never cross state lines nor sell anything. Finding the right to an abortion in unlawful search and seizure? Saying dancing nude in a bar was free speech. Not judging the decision just the constitution's relevance to the subject.
 
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