Thursday, April 30, 2009

Judicial Activism (1 of 3)

If you are going to pursue truth, you have to be prepared to change your mind!

Our Activist Judiciary = Motherhood (Part 1 of 3)

As the Obama administration seeks to fill the many open spots in our Federal court system, we are almost certain to hear disdain and even hateful attacks on “activist judges.”

Ironically, those who claim to honor our “founding fathers” and their original intent are demonstrating complete disregard when they eschew “judge-made law.”

Throughout our legal history, both before and after the Revolution and the adoption of our Constitution, judges have been making law. That’s where our common law system omes from: judges making law. Few observers have seriously questioned that role of judges until the last 50 years or so.

That is what our common law legal system is: judges making law was far more common than legislative-made law until at least the 1870's and the growth of the Benthanite codification movement: a movement to organize and restate the existing, fully valid and recognized judge-made law into a central set of organized rules. The codification movement was , not an effort to replace judges as a source of law.

Under our common law system, in recent centuries judges sometimes (quite rarely, in fact) make law. Far more often they follow precedent - the prior cases with similar fact patterns decided either in higher courts within the particular system or influential high courts.

Judges are most likely to make law when we undergo significant changes in our society, such as resulted from the industrial revolution and the change from a rural, barter society to an industrial money-based society. Conditions change more quickly than legislatures can keep up with.

Our entire system of governance demands an effective system of checks and balances. Judicial activism is both a check and balance on the executive and on the legislative, and is subject to their counter-vailing powers.

1 comment:

  1. Well it's about time you posted again. ;) Interesting but installment #2 needs to have a larger font. These tired old eyes can't read that small type.