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  #11  
Old 05-18-2008, 07:42 PM
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I wholly agree against dictatorship... but, as it stands now, judges act as 'mini-dictators'. (Their word, quite literally, 'is law'.) I think judges MUST be held responsible and accountable to an overall law, one defined by Cicero's statement: "The Good of The People is the Highest Law".

Oddly enough, I've always felt that those best suited for deciding what the Good of The People is are... The People.

"...government of the people, by the people, for the people, shall not perish from the earth."
I see where you get the idea judges "make" law. I believe the real problem is that NOT all laws are very clear. The use of adjectives that can have definitions debated, for instance, cause much of the problems. Look at the "peaceable" example. When judges make decisions in these types of cases precedent is set. That is NOT law, but a readily accepted interpretation of the law. If the legislators that wrote the law say "that is not what we meant", then they should correct the issue through the legislative process.

Is it possible for a current judge to make a decision that is counter to precedent? I would imagine he/she could as the law is not clear. Or is there some sort of unwritten rule against that?
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  #12  
Old 05-18-2008, 07:44 PM
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"Tribal Elders" was the phrase I used, but "Old people who will probably be ruled by thought and wisdom as opposed to anger and haste" would have been too long to type!
When I used "Holy Writ" I meant something that is NOT allowed to be changed - it seems we agree but just use different words. Carry on, sergeant.
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Old 05-18-2008, 07:46 PM
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Personally, given the context, I'd say that the 'Christian Group' was definitely providing an incitement to riot; therefore, clearly not covered under the articles of free speech.

(On the other hand, the same people expressing the same opinion in a different locale, distasteful as I would find it, would have nevertheless had my 'theoretical' support for their peaceable gathering, if not their opinion. As it is, what they did was clearly MEANT to be inflammatory...)

Agreed.
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Old 05-18-2008, 07:56 PM
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Even though the executive branch tends to appoint judges that might be favorable to what the executive thinks (and quite honestly that is well within the powers of the executive branch), but that's why it has been set up so that Congress has to approve the appointment.
The executive Power shall be vested in a President of the United States of America.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.


To me, the 'kicker' is, as I've bolded, 'Good Behaviour'. I mean, really - who decides THAT one...?
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Old 05-18-2008, 07:59 PM
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"Tribal Elders" was the phrase I used, but "Old people who will probably be ruled by thought and wisdom as opposed to anger and haste" would have been too long to type!
When I used "Holy Writ" I meant something that is NOT allowed to be changed - it seems we agree but just use different words. Carry on, sergeant.
Oh, okay. You people have to specify when you're pulling a 'that's what I SAID, but not what I MEANT' moment!

(*Grin*)

(Now you see why I pepper all my posts with 'warnings' about 'soft definitions'... if you'd called them 'Tribal Elders', I wouldn't have even blinked... *Grin*)
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Old 05-18-2008, 08:03 PM
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To me, the 'kicker' is, as I've bolded, 'Good Behaviour'. I mean, really - who decides THAT one...?
Hell if I know what "good behavior" means these days. I'm only 24 years old and I'm already seeing teens do things that in my day was just unacceptable.
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Old 05-18-2008, 08:06 PM
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...Is it possible for a current judge to make a decision that is counter to precedent? I would imagine he/she could as the law is not clear. Or is there some sort of unwritten rule against that?
Given a determination as to the governing jurisdiction, a court is "bound" to follow a precedent of that jurisdiction only if it is directly in point. In the strongest sense, "directly in point" means that: (1) the question resolved in the precedent case is the same as the question to be resolved in the pending case, (2) resolution of that question was necessary to disposition of the precedent case; (3) the significant facts of the precedent case are also present in the pending case, and (4) no additional facts appear in the pending case that might be treated as significant.

The IDEA is to avoid having to re-hash the exact same case over and over again. The problem has become, of course, that it's basically a court-room game to see who can 'fake out' the idea that a precedent is 'on point'... by careful editing of the facts. As I see it, it SHOULD NOT be used on a 'patchwork' basis; that is, 'this point matches that precedent; another point matches another precedent'.

It SHOULD be 'all or nothing' - either this case is EXACTLY like another case, and we can save time... or it has those 'additional facts', and so, *so*, we must go through all that rigmarole of actually deciding this case on IT'S OWN MERITS.

(Oh, the humanity...!)
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Old 05-18-2008, 08:48 PM
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Hell if I know what "good behavior" means these days. I'm only 24 years old and I'm already seeing teens do things that in my day was just unacceptable.
What you are NOT seeing would disturb you more.
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  #19  
Old 05-18-2008, 08:49 PM
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Given a determination as to the governing jurisdiction, a court is "bound" to follow a precedent of that jurisdiction only if it is directly in point. In the strongest sense, "directly in point" means that: (1) the question resolved in the precedent case is the same as the question to be resolved in the pending case, (2) resolution of that question was necessary to disposition of the precedent case; (3) the significant facts of the precedent case are also present in the pending case, and (4) no additional facts appear in the pending case that might be treated as significant.

The IDEA is to avoid having to re-hash the exact same case over and over again. The problem has become, of course, that it's basically a court-room game to see who can 'fake out' the idea that a precedent is 'on point'... by careful editing of the facts. As I see it, it SHOULD NOT be used on a 'patchwork' basis; that is, 'this point matches that precedent; another point matches another precedent'.

It SHOULD be 'all or nothing' - either this case is EXACTLY like another case, and we can save time... or it has those 'additional facts', and so, *so*, we must go through all that rigmarole of actually deciding this case on IT'S OWN MERITS.

(Oh, the humanity...!)
Things sure can get messy. thanks for the additional info.
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  #20  
Old 05-19-2008, 05:36 AM
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This is one of the more common methods of trying to override or undermine the Constitution; 'cheating' by making law. Judges SEEM to do it all the time - yet the Judicial Branch has no authority to make law. Only the Legislative branch may do that. Is 'Roe vs. Wade' the 'law of the land'?

Nope.

It's a single decision in a single court case. I'm not going to state whether I am pro- or anti-abortion, and right now, I don't care if you are, either - this 'cheating', in my opinion, is a much more overreaching matter. I simply picked that case as it's one I'm sure almost everyone will be familiar with, to some degree or another.
This a good thing IMO. It's the English Common Law system and offers the people the best protection from governments that would infringe their rights. Think of all the times that system has been used by judges to protect the rights of the public in Anglophone countries across world. If we used the Roman based law of Europe, government could and would walk all over us.

Now I won't pretend English Common Law is perfect, it isn't, but like democracy it's the best there is...
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