Discuss the extent to which judges do create and develop the law. Numerous different judges have different views on to what extent judges have creativity within the legal system, such as Lord Simons who believed he judges job is to administer justice according to legislation made my parliament and in common law old principles should be applied to new circumstances, therefore his view is that judges should not be creative, as it isn’t there job. On the contrary Lord Radcliffe believed that judges do create law, however felt it should be on the quiet, so the public don’t lose respect for the judiciary and legal system. Finally Lord Devlin opposed the overruling of the supreme court, as all lower courts are bound to it and that it would turn them into “undisguised legislators” which is the job of parliament, not of the judiciary. The traditional view of the law making process is that parliament makes the law though acts of parliament, as they are democratically elected to make law, whereas judges aren’t so they merely apply it in court to the cases presented to them.
On the other hand, the liberals, or Judicial Activists, believe that the founding fathers recognized that standards of their time wouldn’t apply to the future, so therefore left the constitution broadly based and available for contemporary interpretation. In my opinion, as in many others, Judicial Activism is just an excuse for justices to rule based on personal opinion. The judicial branch of the government needs to show judicial restraint because of the variety of the cases they receive. They need to make sure that the rulings they enact are rulings that follow the constitution and not their own personal beliefs as they have been doing for some time now. In my opinion, the most important example of judicial restraint being in need in American history occurred on May 20, 1940.
Are judges politicians in disguise? When reviewing the functions of the judges, and how and why decisions are made, there are many factors which should come into consideration. The judicial branch should interpret the law and constitution, and to make neutral and impartial decisions. Judges, in theory, should be fair, unbiased, neutral, impartial and not based or linked to any political party or movement. However, it has been argued in the past that judges are too alike to politicians, as decisions made by the Supreme Court judges have, and will not be mechanical, but in a lot of cases too biased and political.
It was said that the marriage didn’t guarantee “the fundamental right to marry a person of the same sex.” Also it was said that the marriage exclusion does not offend the liberty, freedom, equality, or due process provisions of the Massachusetts Constitution. From my knowledge, I know that you can only get married to the same sex in San Francisco, California and in Canada. In the Loving v. Virginia case, the Fourteenth Amendment was on their side by stating that marriage shouldn’t be restricted by invidious racial discrimination. Under the Constitution, the freedom to marry or not marry a person of another race resides with the individual and
Some supporters say that a state should have more power than the federal government and then there are others who say the Federal government should be the ruling body alone. You have a central government that functions to keep the country working as a unit, but also works to keep the states from encroaching on individuals and becoming too intrusive. The same works for states. The states have a lot of control over what their citizens should be subject to. For example, criminal laws, property laws, contract laws...etc are decided by the state, not the federal government and they aren’t allowed to govern those areas.
If powers are not outlined in the constitution, then it is up to the government (courts, judges, etc.) to decide what changes need to be made to fit the needs of society within these days. No written Constitution can anticipate all the means that might oppress people, so it is sometimes necessary for judges to fill in the gaps. The constitution was clearly meant to be interpreted and amended over time. For example, look at the Bill of Rights, and how generally various rights are stated.
The Supreme Court is both a judicial and political body. The framers of the Constitution wanted to ensure that the judges or justices of the Supreme Court would be truly independent of both the executive and legislative branches (this is in line with the principle of separation of powers). Justices of the Supreme Court are appointed not elected this is because they wanted the Court to be beyond the control of the electorate. The founding fathers wanted a genuinely independent Supreme Court that would settle legal disputes without fear of possible reprisal or that would bend to the whim of the electorate. There are nine member of the Supreme Court including a chief justice, the number is fixed by congress and has remained unchanged since 1869.
Elective dictatorship is a big issue when discussing uncodified constitutions. As there are no laws discussing the separation of the executive, legislature and judiciary powers in UK, an example of this was the Lord of Chancellors who sat within all three of the powers. America’s written constitution states there needs to be a separation of powers, meaning Obama the President has control over the sword however no control over the purse. This stops elitism and kleptocracy, whereas the UK doesn’t have any laws against this. However on the other hand a separation of powers undermines the idea of political sovereignty, because even though they have gain legitimate power, they are not able to run the country as they wish in terms of financial and economic policies.
He thought that the government would be given too much power. His thoughts on the injustices in the Constitution greatly influenced the making of the Bill of Rights. At the time, Federalists argued that the Constitution didn’t need a bill of rights, due to the fact that the people and states kept any powers not given to the federal government, but Anti-Federalists said that a bill of rights was necessary to safeguard individual liberty. So when the Bill of Rights was made it listed prohibitions on governmental power and the rights that were granted to people. When the Bill of Rights was adopted into the Constitution it was became the fundamental rights of all citizens in 1791.