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To: Restorer

Application - yes, interpretation - not always. "The witches are to be burned" law [given as an example, for demonstration purposes only] does not leave much space for interpretation, or even for variations in application beyond using slow or fast fire. Indeed, the ideal constitution might even include a prohibition on any interpretation beyond literal meaning, thus precluding the development of a body of constitutional law.


9 posted on 10/31/2005 3:18:12 PM PST by GSlob
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To: GSlob

Using your (hopefully hyperbolic) example, somebody still has to define who is a witch, and set up rules for deciding whether a person qualifies.

Look, I don't disagree with you at all that judges should not make law. I just don't think it is possible to write laws in such a way that an activist judge cannot reinterpret it. Look at one of the Civil Rights Laws which specifically prohibits discrimination on the usual grounds, yet within a few years was being interpreted to mean that discrimination against particular groups was required, not prohibited!

There are only two defenses that I can see against judicial activism:

1. Restraint on the part of judges. This means very careful choosing of who gets to be a judge.

2. Active use of impeachment against judges who overstep the bounds of their role. If writing your own preferences into law doesn't constitute a "high crime or misdemeanor" for a judge, I don't know what would.

The problem with 2, of course, is that it would require legislators with some guts and an electorate that would back them. Neither is likely.

A third possibility would at least limit the damage a given judge can do. Give judges a 10 year term and then make them find honest work elsewhere.


12 posted on 10/31/2005 3:35:53 PM PST by Restorer (Illegitimati non carborundum)
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