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ACLU attempt to Block Jamboo from Military Base

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        Ive been turning your hats and rocks thing over in my mind trying to find a way to explain what I see as the difference between legislating from the bench and interpreting existing law. When a law is passed and the intent of that law is established thru court precedent and public acceptance and 50 years later some court reinterprets the law to say something totally different from what has always been accepted as its meaning that is legislating from the bench. The current separation of church and state being an example, as I have droned on about, the writers of the Constitution never intended it to mean what todays court says it does and the actions of the founders speaks to that. When a law such as the Texas abortion law is in effect for a period and the court is asked to rule on whether it violates the Constitution that becomes and interpretation of the law. Everyone knew what the law was in Texas but Roe v. Wade was the first time someone asked the SCOTUS to look at it from the stand point that it violated a womens right to privacy. There was no precedent no prior conduct by the writers of the Constitution to say that they didnt think it was a violation of privacy. Interpretation of existing law. Now lets look at Miranda. The founders never intended the guarantee of counsel before questioning. If they had they would have worded it that way. The founders were very clear on what they wanted protection from. They wanted the guarantee that everyone had counsel when brought in front of the court and said that, but before questioning? That was never a practice in those times. Legislating from the bench. Do I approve of Miranda most definitely! Do I think it was beyond the scope of the court yes I do, that was not what the law was meant to read when it was written. You want to change the law then change the law. If a law was passed that said marriage shall be the union of one man and one woman and everyone at the time accepted what that meant then 100 years later some one said Well man could be viewed to mean the species in general and woman means from man so any product of the species is therefore woman so same sex marriage is now alright under the original law. Thats legislating from the bench.


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LongHaul, I think that is as good a definition as any I can think of. GernBlansten has a point in saying that we are more likely to regard a decision unfavorable to our point of view as legislating from the bench than one favorable to us. But your analysis is right on, it seems to me. When the Constitution is interpreted in a way that goes against its plain meaning and the presumed intent of the framers, and also in a way that is a radical departure from precedent and common understanding, that is legislating from the bench. The examples you give are both excellent ones. The framers, in their wisdom, provided a means to make the Constitution "a living document." That is the amendment process.

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