Tim, you are not listening. In the process of interpreting law, new law is created......inadvertently.
Apparently are disagreement is not just a disagreement over what the courts should do but also about the meaning of creating new law.
It could mean actual new legislation, but that meaning isn't relevant. The court doesn't literally pass legislation, and no one that I can think of says it does or that it should.
On the other extreme. the term could be used to mean any change in the legally imposed requirement or limitations, or any change in the legal system. I would not use terms like "legislate from the bench", or "create new law", this way. If you would use the term "create new law" this way than I can see how you say its the courts role to create new law.
I would only say the court is trying to legislate from the bench, or create new law, if it makes a decision that is not supported by the law itself (including the constitution).
they are looking for ways to invalidate or limit the role of the courts........you included.
When the constitution calls for it I would like the courts to be active. The only limit I would put on the courts is to base their decision on the constitution itself and not any "emanations and penumbras", or "evolving opinion", or decisions of courts overseas. And really the only good way I can see for this to happen is the courts themselves to change how they act. I can't see how the legislature or the executive could effectively impose such discipline on the courts.
If the city of Seattle votes into law an ordinance that discriminates against Jews, then that ordinance is undemocratic.
No, it would be unfair, unjust, unconstitutional, and all around bad. You could even say that it is "not good for our democracy", but the law itself would not be undemocratic, and would only have undemocratic results if the law including taking away or limiting their legal right to vote, or their ability to exercise that right.
Your simply not applying the correct definition to the word "undemocratic".
Tim |
