Should the US Supreme Court Decide Cases Based on the Constitution or on Fairness?

There was a recent poll in which the above question was asked and a large number of Americans answered "fairness".

This scares me. A lot. Especially since the vast majority of those who favored "fairness" identified themselves as belonging to the political party that'll likely control both Congress and the White House come January.

I truly don't understand this viewpoint.

"Fair" is a highly subjective thing, while the Constitution is far more stable. Yes, judges do occasionally allow their personal biases to override the law, but it's very rare -- far more frequent is the situation where the judge decides based on the law, even though his personal opinion differs. This consistency and stability is fundamental to a free society, yet all these people are willing to throw it away.

The problem with "fair" is the definition changes within a society... and sometimes... only because the Supreme Court rulings.

Was segregation fair? It sure used to be.

But it really wasn't because it created two levels of "service" and two levels of expectations.

The other problem with fair is that the majority rules... and sometimes the "majority" is just those with a majority of money. Those who can dole out the most bucks in support of their own perspective of fairness. Right now in California, it is clear that the majority of the money thinks denying people the right to be married is fair.

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Originally Posted by Ozme52

The problem with "fair" is the definition changes within a society... and sometimes... only because the Supreme Court rulings.

Was segregation fair? It sure used to be.

But it really wasn't because it created two levels of "service" and two levels of expectations.

The other problem with fair is that the majority rules... and sometimes the "majority" is just those with a majority of money. Those who can dole out the most bucks in support of their own perspective of fairness. Right now in California, it is clear that the majority of the money thinks denying people the right to be married is fair.

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It's more than money that can make the majority -- and I'm not sure which is worse: money or simple numbers. I do know that the tyranny of the majority is to be feared more than the tyranny of a dictator -- because with a dictator you only have to kill one guy, but killing most of your neighbors would make a horrible stink.

This is why pure Democracy is the most evil, repressive, repugnant form of government every devised.

Common law countries rely on the courts to declare what the law is, and the doctrine of precedent gives the law its certainty. A legal system which is uncertain is grossly unfair.

However, a legal system that is bound by precedent becomes rigid and unadaptable, and injustice can arise there too. Thus, we have equity - the gloss on common law - which redresses such injustices by issuing injunctions to prevent the unfair consequences of enforcing a legal right.

Statute (or the Constitution, where you have one) overrides common law and equity, because the legislature desire the law to say something in particular, and it cannot be left to the judges to say it (if they ever get round to trying a case that involves the point of law in question). So, I don't think fairness comes into it. Whether it's a fair law or an unfair one, if the lawmakers want it, they'll have it. And the judges must adhere to it.

For example, is it fair that bankers can pay themselves enormous bonuses while their company has to be rescued bu the government? Why not? If their contract entitles them to the bonuses, they should have them. But many people - even in USA - would like to see a law passed to prevent these fat cats getting any more cream.

Neither common law nor equity would allow that.

So I tracked down the survey: http://www.rasmussenreports.com/publ...e_court_update

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Most American voters (60%) agrees and says the Supreme Court should make decisions based on what is written in the constitution, while 30% say rulings should be guided on the judge’s sense of fairness and justice.
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While 82% of voters who support McCain believe the justices should rule on what is in the Constitution, just 29% of Barack Obama’s supporters agree. Just 11% of McCain supporters say judges should rule based on the judge’s sense of fairness, while nearly half (49%) of Obama supporters agree.

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Tough question, as the Conservatives will have a much different view of the law then Liberals, will, it will boil down to interpretation of the lsawwhich will vary greatly depending on thier personal views

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Originally Posted by Ragoczy

This is why pure Democracy is the most evil, repressive, repugnant form of government every devised.

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Do you know a better form of government? I'm honestly courious.
(Of course there is absolute monarchy, but that would only be better if i were the queen ;) )

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Tough question, as the Conservatives will have a much different view of the law then Liberals, will, it will boil down to interpretation of the lsawwhich will vary greatly depending on thier personal views

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I don't think the answer should have anything to do with political viewpoints. There's a constitution, and Courts have to decide by that. Period. No matter who's in charge of the legislation. It's called separation of powers and everywhere this principle has been or is violated there's big troubles.

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Originally Posted by lucy

Do you know a better form of government? I'm honestly courious.
(Of course there is absolute monarchy, but that would only be better if i were the queen ;) )


I don't think the answer should have anything to do with political viewpoints. There's a constitution, and Courts have to decide by that. Period. No matter who's in charge of the legislation. It's called separation of powers and everywhere this principle has been or is violated there's big troubles.

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True, I agree but Poitical Views Points in this country have always made the decison, look at the recent ruling n Gun Contro, all Conservatives said the Consistution specificly Guarantees everyone therigt to bear arms, the Liberals said, True but thatwas WAY before hand guns were know as they are now, the Conservatives voted Washington DC ban on hand guns UNCONSTITUTIONAL, the Liberals Vted the Opposite, thisis a GREAT example of Poltical Viewpoits deciding as case, is that good, no but this is howe their view pointso n the law interpret the 2nd Amendment, thier VIEW of the 2nd Ammendment
I am not taking a for or Con on thier viewpints but rthersimply pointing out a case where it may have been used

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Originally Posted by lucy

Do you know a better form of government? I'm honestly courious.
(Of course there is absolute monarchy, but that would only be better if i were the queen ;) )

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Pure Democracy is defined as Majority Rules -- the masses vote directly on issues. The United States is not a Democracy, it's a Republic -- to get very detailed, it's a Constitutionally-limited, Representative Republic that has a democratic process. The founders of the US recognized this and many of their writing speak about the dangers of pure Democracy.

Pure Democracy is bad because the majority decide things without the rule of law over their decisions -- in other words, it's the tyranny of the majority. It's great ... as long as you're in the majority, of course. For those with minority views there are no protections.

So, yes, I know of a better form of government -- pretty much any. As I stated, in a dictatorship the people can overthrow the one in power -- but it's tough to overthrow the majority.

Pure Democracy is when seven wolves and sheep decide what's for lunch ... everyone gets a vote ... even the lunch.

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Originally Posted by mkemse

True, I agree but Poitical Views Points in this country have always made the decison, look at the recent ruling n Gun Contro, all Conservatives said the Consistution specificly Guarantees everyone therigt to bear arms, the Liberals said, True but thatwas WAY before hand guns were know as they are now, the Conservatives voted Washington DC ban on hand guns UNCONSTITUTIONAL, the Liberals Vted the Opposite, thisis a GREAT example of Poltical Viewpoits deciding as case, is that good, no but this is howe their view pointso n the law interpret the 2nd Amendment, thier VIEW of the 2nd Ammendment
I am not taking a for or Con on thier viewpints but rthersimply pointing out a case where it may have been used

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Backwards. It's a difference of Constitutional interpretation that has become politicized. The Constitutional language is clear -- and the Court's decision was the correct one. In changing times and situations, the correct path isn't to change the interpretation of the Constitution, but to change the Constitution itself -- if things have really gone so far afield from the founder's intent, with more powerful weapons, then a Constitutional Amendment is the procedure to clarify or update the language -- not simply reinterpreting it based on who's in political power at the time.

This isn't simply because I agree with the decision. There are any number of cases that I disagree with the outcome, but agree they're the right decision under the law and Constitution.

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Originally Posted by Ragoczy

Pure Democracy is defined as Majority Rules -- the masses vote directly on issues. The United States is not a Democracy, it's a Republic -- to get very detailed, it's a Constitutionally-limited, Representative Republic that has a democratic process. The founders of the US recognized this and many of their writing speak about the dangers of pure Democracy.

Pure Democracy is bad because the majority decide things without the rule of law over their decisions -- in other words, it's the tyranny of the majority. It's great ... as long as you're in the majority, of course. For those with minority views there are no protections.

So, yes, I know of a better form of government -- pretty much any. As I stated, in a dictatorship the people can overthrow the one in power -- but it's tough to overthrow the majority.

Pure Democracy is when seven wolves and sheep decide what's for lunch ... everyone gets a vote ... even the lunch.

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Ok, i see. Thanks. But i like to disagree on two different levels. Let me explain: I live in Switzerland, our system is quite close to what you describe here. We get to vote directly on issues. From whether or not abortion should be legalized to whether or not there should be a new sewage treatment plant.
But there are many "safety catches", including the constitution, international laws (from the human rights bill to trade bills signed by Switzerland) but also a supreme court who can overthrow a decision voted on by a majority. That is quite possibly happening in the near future: We have to vote for (or against, in my case) a law banning minarets on mosques. Even it that law is voted for by a majority, it may very likely be overthrown by the supreme court because it is agains the constitutional right of freedom of religion. Why we have to vote if it's already pretty clear that a possible pro-vote wont stand in the end is an altogether different question, of course.
So far Switzerland did quite well, and to my knowledge no "extreme" issue was ever voted for. There were some ugly votes on topics regarding foreigners living here, but i am the first to admit that they are only ugly from my point of view.

As for your statement that a pure democracy is even better than a dictatorship: Ok, it might be easier to whack one guy (has there ever been a female dictator???) than a majority. However, a majority ruling over a minority is imho still better than one guy ruling over all the rest. Simply a matter of numbers. Besides, even if i dont really believe in common sense in large masses, there seems to exist such a thing since in most places where people have a vote (i. e. democracies) they do vote in a more or less responsible way. Of course there are exceptions to this, but usually those exceptions occured in exceptional times.
To make it short: While dictatorships exists and usually are pretty nasty for at least a great minority living under them, i have never heard of a pure democracy. Because if you give people the right to vote they tend to prove to be not as stupid as one would expect at the first moment.

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Originally Posted by lucy

Ok, i see. Thanks. But i like to disagree on two different levels. Let me explain: I live in Switzerland, our system is quite close to what you describe here. We get to vote directly on issues. From whether or not abortion should be legalized to whether or not there should be a new sewage treatment plant.
But there are many "safety catches", including the constitution, international laws (from the human rights bill to trade bills signed by Switzerland) but also a supreme court who can overthrow a decision voted on by a majority. That is quite possibly happening in the near future: We have to vote for (or against, in my case) a law banning minarets on mosques. Even it that law is voted for by a majority, it may very likely be overthrown by the supreme court because it is agains the constitutional right of freedom of religion. Why we have to vote if it's already pretty clear that a possible pro-vote wont stand in the end is an altogether different question, of course.
So far Switzerland did quite well, and to my knowledge no "extreme" issue was ever voted for. There were some ugly votes on topics regarding foreigners living here, but i am the first to admit that they are only ugly from my point of view.

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What you describe wouldn't be pure democracy because there are restraints on the Mob (majority) to protect the rights of the individual and judicial oversight -- but I'm curious to hear more about how it works.

In the US, in addition to elected legislators, many States have something called "citizens initiatives" or something similar where citizens can get measures on the ballot to, typically, amend the State Constitution to impose laws -- bypassing the legislature.

The language is typically reviewed by the courts before making it to the ballot, to ensure that it doesn't violate some other part of the Constitution, so it's not typically a problem that one of these is approved and then struck down by the courts.

What is a problem is that anyone with enough time to gather the petition signatures can amend the State Constitution -- which is how Florida's Constitution wound up with an Amendment dictating the minimum size of the enclosure in which a citizen may keep a pregnant pig (male and barren piggies were, apparently, considered not important enough to include).

How do measures in Switzerland make it to the ballot in the first place and is there any judicial review ahead of time?

And do you have the same problem with frivolous measures being proposed and voted on?

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Originally Posted by lucy

As for your statement that a pure democracy is even better than a dictatorship: Ok, it might be easier to whack one guy (has there ever been a female dictator???) than a majority. However, a majority ruling over a minority is imho still better than one guy ruling over all the rest. Simply a matter of numbers. Besides, even if i dont really believe in common sense in large masses, there seems to exist such a thing since in most places where people have a vote (i. e. democracies) they do vote in a more or less responsible way. Of course there are exceptions to this, but usually those exceptions occured in exceptional times.
To make it short: While dictatorships exists and usually are pretty nasty for at least a great minority living under them, i have never heard of a pure democracy. Because if you give people the right to vote they tend to prove to be not as stupid as one would expect at the first moment.

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The issue isn't that they'll make a bad decision about, say, traffic laws. The issue arises when the majority wants something or simply thinks it's a good idea, but it infringes on the rights of the individual where those who exercise that right are in the minority.

Right after 9/11, you probably would have had a majority of Americans willing to put heavy restrictions on Muslims in this country. If it had been put to a vote, it would have passed -- and there's nothing they (the Muslims) could do about it in a pure democracy, because they'd be in the minority. Without protection from the majority, the minority is typically screwed.

Another problem pure democracy has is that the typical citizen doesn't have the time to research and understand the intricacies of every bit of proposed legislation -- so they would tend to make decisions based on limited, possibly faulty, information, and within their own self-interest.

So, yes, I did just call most people stupid, greedy and bigoted. :)

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Originally Posted by lucy

Ok, i see. Thanks. But i like to disagree on two different levels. Let me explain: I live in Switzerland, our system is quite close to what you describe here. We get to vote directly on issues. From whether or not abortion should be legalized to whether or not there should be a new sewage treatment plant.

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I'm also curious how you handle the NIMBY problem -- "not in my backyard" where people want the new sewage plant, but nobody wants it near their neighborhood.

Does everybody in a city vote on the location?

Making decisions purely based on law can often lead to situations where most would agree the verdict is unfair. It it really a crime when an eighteen year old has sex with a seventeen year old? It's often lenient, but there is still a record. The original poll I think should have used "common sense" rather than "fairness". I agree both are subjective, but that's why we have very knowledgeable people in law that can make common sense decisions, and should be able to.

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Originally Posted by bondsman

Making decisions purely based on law can often lead to situations where most would agree the verdict is unfair. It it really a crime when an eighteen year old has sex with a seventeen year old? It's often lenient, but there is still a record. The original poll I think should have used "common sense" rather than "fairness". I agree both are subjective, but that's why we have very knowledgeable people in law that can make common sense decisions, and should be able to.

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Again, i think that exactly this should not happen. Although it sounds convincing, a judge should do nothing but decide by the law, and only the law. If this goes against fairness or common sense, the law (or constitution) should be changed. The keyword is subjective, and that's exactly what should be avoided. We all know that sticking to the law still is subjective enough, of course.
What one person in the judicial system might find fair might be utterly unfair to the next one. And the result of this would be arbitrary decisions.

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Originally Posted by Ragoczy

What you describe wouldn't be pure democracy because there are restraints on the Mob (majority) to protect the rights of the individual and judicial oversight -- but I'm curious to hear more about how it works.

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I think i already agreed that a pure democracy isn't something i would like to have.

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Originally Posted by Ragoczy

In the US, in addition to elected legislators, many States have something called "citizens initiatives" or something similar where citizens can get measures on the ballot to, typically, amend the State Constitution to impose laws -- bypassing the legislature.

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We've got that too, on every level from commune to province right to federal initiatives. Before you can start such an initiative, it must be cleared by the government whether it's against the constitution or international laws, whether all the people in the supporting comittee (those are the people who can decide on whether to take an initiative back or not) are Swiss and things like that. If that's ok, you start collecting the signatures. For a federal initiative you need to collect 100'000 valid signatures in 18 months. The latest initiative to be sent to the government is one that demands a ban for offroaders. Now it will go to the two chambers of parlament, whose members will decide whether they're pro or against, or whether they want to work out a "countering law". Then it will be put on the vote, somewhen in the next 1 to 4 years. If it's approved, we will have an article written into our constitution which says "Hummers are not allowed" (of course it's a bit more elaborate)
That is pretty stupid (not that i favour offroaders, as a cyclist, but stuff like that shouldn't be in a constitution), but there is no way to change an existing law, only the constitution. So we have quite some crappy articles in the constitution already ;)

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Originally Posted by Ragoczy

The language is typically reviewed by the courts before making it to the ballot, to ensure that it doesn't violate some other part of the Constitution, so it's not typically a problem that one of these is approved and then struck down by the courts.

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That's the same here. However, since the final validation is done by the parlament only after the signatures are collected, it's possible that an initiative is invalidated although there are enough signatures. So far, parlament was very conservative, when it came to vote for invalidity. (Another initiative was approved by the voters which demanded that sexual offenders which are not responding to therapy must be locked up forever, without the right for reassessment of their case. However, it turns out now that that goes against several international laws, and cannot be done like it was supposed to be done.)

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Originally Posted by Ragoczy

What is a problem is that anyone with enough time to gather the petition signatures can amend the State Constitution -- which is how Florida's Constitution wound up with an Amendment dictating the minimum size of the enclosure in which a citizen may keep a pregnant pig (male and barren piggies were, apparently, considered not important enough to include).

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Of course. If you don't have the time, you can do it with money too. That's definitely not cool. But i think the possibility that some idiots with time and/or money abuse the right to start an initiative doesn't make the whole idea of participation a bad one.

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Originally Posted by Ragoczy

How do measures in Switzerland make it to the ballot in the first place and is there any judicial review ahead of time?

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Yup, but as i said, they are conservative in their reviews. Which i find sometimes irritating, in other instances just right. But as a liberal treehugger i'm heavily biased, of course ;)

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Originally Posted by Ragoczy

And do you have the same problem with frivolous measures being proposed and voted on?

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Such cases are very rare here, and usually don't stand a snowballs' chance in hell at the ballots.

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Originally Posted by Ragoczy

Right after 9/11, you probably would have had a majority of Americans willing to put heavy restrictions on Muslims in this country. If it had been put to a vote, it would have passed -- and there's nothing they (the Muslims) could do about it in a pure democracy, because they'd be in the minority. Without protection from the majority, the minority is typically screwed.

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Yeah, being in a minority sucks, agreed. And it needs safety catches to protect them.

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Originally Posted by Ragoczy

Another problem pure democracy has is that the typical citizen doesn't have the time to research and understand the intricacies of every bit of proposed legislation -- so they would tend to make decisions based on limited, possibly faulty, information, and within their own self-interest.

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Ummm, yes, agreed. But do you prefer one single person, who is maybe/possibly/likely just as misinformed, to make that decision? And what about your upcoming elections? Do you think a majority of the voters are well informed about the goals and believes of McCain and Obam?
And what is wrong with self-interest? Sorry, but when i vote, be it an election, or a vote on a certain topic, i cannot but keep in mind my self-interest. I'm a student, i finance my studies with working as a journalist/corrector, but can't work more than i do because then i couldnt finish my studies. So, right now i can't make ends meet, however hard i try to save money. And with the line of study i'm in, this won't change very much, (i guess i'll never make a fortune with working as a journalist ;)
So, when i vote or elect, should i do so with the interests of some rich and heavily overpaid banker or a guy living off his heritage on my mind? Or should i vote within my own-interests?
Of course, there are also the interests of a larger community (as in "don't ask what your county can do for you, but what you can do for your country), but everytime i keep that on my mind, i get f***** big time. That's apart from feeling very lonely in those cases. * imagine cynical and despaired laughter here*

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Originally Posted by Ragoczy

So, yes, I did just call most people stupid, greedy and bigoted. :)

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hehehe, i don't really disagree on that ;)

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Originally Posted by Ragoczy

I'm also curious how you handle the NIMBY problem -- "not in my backyard" where people want the new sewage plant, but nobody wants it near their neighborhood.

Does everybody in a city vote on the location?

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Yep, that's indeed a problem. Usually the plans are finished, when we got to vote on them. We actually don't vote about the sewage plant or it's location, but about the money. The legal process should by then be finished.

Oh, just forgot another thing (this is gonna be one lengthy post): When parlament passes a new law, we can collect signatures for a referendum, so people have the chance to vote on that law. Some laws are automatically brought to the vote, some need the signatures. I don't know details, though. And every change of the constitution must be brought to the ballots too, of course.
All in all, it's good system, i think. However, sometimes it's too slow, but it makes rather sure that the majority isn't fucking with a minority, because the minorities have the chance to start initiatives or referendums too. Hence new laws tend to be crafted the way that most minorities are more or less content with them.

But i think we don't really have a majority here, at least not a stable one. Swiss society is pretty fragmentized, between German/French/Italian parts, cities and countryside, workers and and employers, young and old, educated and less educated, religious and areligious, conservative and progressive and possibly quite some more i can't name right now.
That leads to shifting minorities and majorities, and majorities are usually only found by making alliances, however temporary or even unlikely they might be.

But suppose the Judges on the Bench each a different interpratation of the Law??
You rea a Law I read the same Law but we interpartate it differntly, then what??

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Originally Posted by mkemse

But suppose the Judges on the Bench each a different interpratation of the Law??
You rea a Law I read the same Law but we interpartate it differntly, then what??

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Of course that happens, and i think i said so already. But at least we're starting from the same point. And when a law leaves a lot of room to interpretations, then maybe it is not a very good law.

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Originally Posted by bondsman

Making decisions purely based on law can often lead to situations where most would agree the verdict is unfair. It it really a crime when an eighteen year old has sex with a seventeen year old? It's often lenient, but there is still a record. The original poll I think should have used "common sense" rather than "fairness". I agree both are subjective, but that's why we have very knowledgeable people in law that can make common sense decisions, and should be able to.

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First, we're talking about the Supreme Court, whose primary purpose is to decide issues of Constitutional Law, not State Criminal Court.

In State Criminal Court, the issue of "common sense", "fairness" or even "justice" has an advocate -- that being the jury. It's the jury's duty and right to judge the law in addition to the facts of the case and they can return a not guilty verdict if they believe the law is unjust or unjustly applied.

The issue of allowing "very knowledgeable people" make "common sense" decisions is that they don't all have common sense. And what you think is "common sense" might be patent absurdity to someone else -- that's why we have a codified set of laws, rather than leaving it to the arbitrary, subjective view of an individual.

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Originally Posted by lucy

Again, i think that exactly this should not happen. Although it sounds convincing, a judge should do nothing but decide by the law, and only the law. If this goes against fairness or common sense, the law (or constitution) should be changed. The keyword is subjective, and that's exactly what should be avoided. We all know that sticking to the law still is subjective enough, of course.
What one person in the judicial system might find fair might be utterly unfair to the next one. And the result of this would be arbitrary decisions.

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Exactly, a prime example of changing the law to address this is Kelo vs. New London.

A Supreme Court case where the city of New London, CT used Eminent Domain to take the private property of an individual (they owned a bed and breakfast) to give it to another private individual (a developer who wanted to build condos, I think). The cities argument was that the condos would provide more tax revenue, therefore were better for the city and, as such, met the "public use" provision of Eminent Domain.

The Court's decision (5-4) was that this action was Constitutional and legal under Connecticut and Federal law.

The dissent argued that "public use" didn't mean "public good" and that giving the land to another private owner was not Constitutional.

To decide this case on "fairness", well, fair to who?

To the owners of the bed and breakfast, it's not fair that they had their property taken.

To the city, it's not fair that they didn't have the optimal tax base provide services to the community.

To the developer, it's not fair that he can't build his condos.

To the other residents of the city, it's not fair that not collecting those higher taxes means they have to pay a larger share or have reduced services.

To the neighbors of the property, it's not fair that their nice view of a quaint bed and breakfast is changed to a high-rise condo building.

So, when we ask the judge to be "fair" -- who do we mean fair to?

The Kelo case hinged on interpretation of the "public use" clause in the Constitution and set the precedent that private property can be taken by the State and given to another private party to increase tax revenues.

Public backlash was strong and now most States have passed, or soon will, legislation to clarify "public use" to exclude transfer to private developers.

If it were left to "fairness", each instance of Eminent Domain would be left to the interpretation of the individual judge as to whether it was "fair".

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Originally Posted by Ragoczy

First, we're talking about the Supreme Court, whose primary purpose is to decide issues of Constitutional Law, not State Criminal Court.

In State Criminal Court, the issue of "common sense", "fairness" or even "justice" has an advocate -- that being the jury. It's the jury's duty and right to judge the law in addition to the facts of the case and they can return a not guilty verdict if they believe the law is unjust or unjustly applied.

The issue of allowing "very knowledgeable people" make "common sense" decisions is that they don't all have common sense. And what you think is "common sense" might be patent absurdity to someone else -- that's why we have a codified set of laws, rather than leaving it to the arbitrary, subjective view of an individual.

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Yes but doesn't any Judge even at State Level use his/her "Commom Sense" I do not believe that there is any difference in "Comom Sense" used by a Judg or Judges be they State or Fedral
Andafter trial when it is up to the Judge to pass sentence not a Jury what 1 Judge State Level may pass as sentence and another one at State Level will do will be different by either thier "Commom Sense" or THEIR Interptation of the Law anss the sentences they can hand down
You can have 2 people before 2 different State Jdges passong sentence and 1 may sentence 1 person to 6 years another may sentence for the same crime 3 years. it is up to ANY Judges Interatation not only of the Crime Committed, butthe Law and the Sentences they are allowed to pass
I am not sure you can differentiate her that State Level & Federal Level operate differently

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Originally Posted by mkemse

Tough question, as the Conservatives will have a much different view of the law then Liberals, will, it will boil down to interpretation of the lsawwhich will vary greatly depending on thier personal views

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The judges' interpretation of the law is actually secondary, the primary consideration is precedent. So the interpretation is set the first time and then clarified through future decisions.

But, ultimately, what the words of a law mean is fundamentally clearer to interpret than what's "fair", yes?

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Originally Posted by Ragoczy

The judges' interpretation of the law is actually secondary, the primary consideration is precedent. So the interpretation is set the first time and then clarified through future decisions.

But, ultimately, what the words of a law mean is fundamentally clearer to interpret than what's "fair", yes?

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True, how ever if as I said before, you nd I both read the same thing, isn't there achance that your interpretation may be different then mine, this does not make either of us wrong, but when peole read anything people always interpret things differently and even "Fair" what you may find fair and I may find fair may be different

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Originally Posted by mkemse

Yes but doesn't any Judge even at State Level use his/her "Commom Sense" I do not believe that there is any difference in "Comom Sense" used by a Judg or Judges be they State or Fedral
Andafter trial when it is up to the Judge to pass sentence not a Jury what 1 Judge State Level may pass as sentence and another one at State Level will do will be different by either thier "Commom Sense" or THEIR Interptation of the Law anss the sentences they can hand down
You can have 2 people before 2 different State Jdges passong sentence and 1 may sentence 1 person to 6 years another may sentence for the same crime 3 years. it is up to ANY Judges Interatation not only of the Crime Committed, butthe Law and the Sentences they are allowed to pass
I am not sure you can differentiate her that State Level & Federal Level operate differently

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They differ quite a bit -- the Supreme and Appellate Courts are designed differently and have different purposes than the Criminal and Civil Courts that a case is first heard in.

In the latter, the focus is on the facts of the case -- in the former, it's on procedure and the law. These are two different goals, and are different for reason.

The purpose of the lower Courts is to arrive at a verdict based on the facts of the case and the issue of "justice" or "fairness" is in the hands of the jury; the higher Courts have a different burden, that of judging the law as it was applied to the case. They must be guided by the actual law, not their opinion or sense of "fairness", else we're back in the days of rule of men not rule of law.

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Originally Posted by mkemse

True, how ever if as I said before, you nd I both read the same thing, isn't there achance that your interpretation may be different then mine, this does not make either of us wrong, but when peole read anything people always interpret things differently and even "Fair" what you may find fair and I may find fair may be different

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But as I said, the written word is inherently clearer than "fairness". There's less room for difference. And everyone can read the words of the law, whereas we can't look into the heart of the judge and know what he'll think is fair.

Imagine if something like child support was determined by each individual judge's sense of fairness instead of legislated guidelines -- one judge thinks it's fair to allocate 80% of a man's income while another thinks 20% is fair. With written law, the rule is known.

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Originally Posted by Ragoczy

But as I said, the written word is inherently clearer than "fairness". There's less room for difference. And everyone can read the words of the law, whereas we can't look into the heart of the judge and know what he'll think is fair.

Imagine if something like child support was determined by each individual judge's sense of fairness instead of legislated guidelines -- one judge thinks it's fair to allocate 80% of a man's income while another thinks 20% is fair. With written law, the rule is known.

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The written word can be interpated differnt way i read a book i get one thing out of it you reasd the same and getsomething else out of it thats all i am saying

Yes but very few Judges follow the written lat to the word or they would never have to decide how do i sentence him or her all he would have to do is say "The Law says..." which i have heard but they still make their own decion
The written law(s) to me a a guideline, i have neevr heard or read where a JUdge follwed the written law to thword if they did, the 2nd Ammendnent says NOTHING about hand gun owbership ect, so the Judges interpret what they have the way thewy want, the 2nd Ammendment is Written law but exclusive or specific guide lne all it says is "The right o bear arms will not be infrigned upon" but what type arms?? a rifle, a AK47, an Uzi, A Canno
Thw rittne law is a guideline open to interpretation, if it weren't every criminal inthis country wuld face the exact same pentaly for the same crime, which rarely happens

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Originally Posted by mkemse

The written word can be interpated differnt way i read a book i get one thing out of it you reasd the same and getsomething else out of it thats all i am saying

Yes but very few Judges follow the written lat to the word or they would never have to decide how do i sentence him or her all he would have to do is say "The Law says..." which i have heard but they still make their own decion
The written law(s) to me a a guideline, i have neevr heard or read where a JUdge follwed the written law to thword if they did, the 2nd Ammendnent says NOTHING about hand gun owbership ect, so the Judges interpret what they have the way thewy want, the 2nd Ammendment is Written law but exclusive or specific guide lne all it says is "The right o bear arms will not be infrigned upon" but what type arms?? a rifle, a AK47, an Uzi, A Canno
Thw rittne law is a guideline open to interpretation, if it weren't every criminal inthis country wuld face the exact same pentaly for the same crime, which rarely happens

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I didn't disagree that written law can be interpreted different ways in some cases, what I said that it is inherently clearer than the nebulous concept of "fairness".

And you're incorrect on judges following the law. They follow it, to the letter, every day. With specific regard to sentencing, the written law sets forth a range of what the sentence should be with the expectation that the judge will use his discretion given the details of the case. If the range is 6 to 8 years, it's a rare case that the judge attempts to go outside that range. If the legislation specified a single term, instead of a range, that's what the sentence would be.

Furthermore, they follow the law daily with regard to admissible testimony. Every objection is weighed against the law -- a hearsay objection isn't an interpretation of what hearsay is, but an evaluation of the particular testimony to determine if it meets that criteria. Ever hear of a "three strikes" law? If the judges didn't have to follow the letter of the law, they wouldn't complain so much about having to, say, sentence someone to life in prison for grabbing a slice of pizza. Mandatory minimum sentences, where the law clearly lays out the minimum sentence for a crime, regardless of the specific circumstances.

All of these are instances of judges having to follow the letter of the law. And it's the vast majority of the cases, because if they don't, the case will be heard by an appellate court and their decision will be overturned.

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Originally Posted by Ragoczy

I didn't disagree that written law can be interpreted different ways in some cases, what I said that it is inherently clearer than the nebulous concept of "fairness".

And you're incorrect on judges following the law. They follow it, to the letter, every day. With specific regard to sentencing, the written law sets forth a range of what the sentence should be with the expectation that the judge will use his discretion given the details of the case. If the range is 6 to 8 years, it's a rare case that the judge attempts to go outside that range. If the legislation specified a single term, instead of a range, that's what the sentence would be.

Furthermore, they follow the law daily with regard to admissible testimony. Every objection is weighed against the law -- a hearsay objection isn't an interpretation of what hearsay is, but an evaluation of the particular testimony to determine if it meets that criteria. Ever hear of a "three strikes" law? If the judges didn't have to follow the letter of the law, they wouldn't complain so much about having to, say, sentence someone to life in prison for grabbing a slice of pizza. Mandatory minimum sentences, where the law clearly lays out the minimum sentence for a crime, regardless of the specific circumstances.

All of these are instances of judges having to follow the letter of the law. And it's the vast majority of the cases, because if they don't, the case will be heard by an appellate court and their decision will be overturned.

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Yes the do follow the law but they can also issue their own sentences they have guidlines to go with so they can use thier descrition as to how long or short asentence should be thats all

At least here in America, it is nice to be able to agree to disagree respectful without going to jal over the issue

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Originally Posted by mkemse

Yes the do follow the law but they can also issue their own sentences they have guidlines to go with so they can use thier descrition as to how long or short asentence should be thats all

At least here in America, it is nice to be able to agree to disagree respectful without going to jal over the issue

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Whic hs ialso thier choice 1 Judhe may decide yo acept a certain pieice of evidence other may not, nothing written on this no law saynig tha must accrpt this or that they follow written guidelines but have latitude beyond that

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Originally Posted by mkemse

Whic hs ialso thier choice 1 Judhe may decide yo acept a certain pieice of evidence other may not, nothing written on this no law saynig tha must accrpt this or that they follow written guidelines but have latitude beyond that

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There is law and precedent on that. If a judge throws out evidence or testimony (or allows it) that there is either written law or precedent on, then any verdict will likely wind up in appellate court, where the judge may be overridden -- since judges don't like that, they do follow the law and precedent. If there's actually no law or precedent (extremely rare), then yes the judge does have to use his own judgment, but even that isn't in a vacuum -- it's based on the law and precedent for things similar to what he's deciding. It's extremely rare for judges to go very far afield.

lucy,

Thank you, by the way, for the information on Switzerland's process, I found it very interesting.

Off-topic, but I'm curious as to the minaret issue you first described? It seems exceedingly odd to me to write into law an architectural issue like putting a tower on a building ... what's the underlying problem this law is supposed to solve?

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Originally Posted by Ragoczy

There is law and precedent on that. If a judge throws out evidence or testimony (or allows it) that there is either written law or precedent on, then any verdict will likely wind up in appellate court, where the judge may be overridden -- since judges don't like that, they do follow the law and precedent. If there's actually no law or precedent (extremely rare), then yes the judge does have to use his own judgment, but even that isn't in a vacuum -- it's based on the law and precedent for things similar to what he's deciding. It's extremely rare for judges to go very far afield.

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Thanks

I didn't choose either of these options. I believe there needs to be a balance between law and common sense.

Life isn't 'fair' however, and I shy away from using that term discussing judgments.



i.e. Putting someone in jail that shoots a person who is breaking into their home because the there is some loophole in the 'law' that allows that, well that is just lacking in common sense.

I personally believe that our constitution is set up to be as fair as possible to as many people as possible and still retain enough common sence to work while preserving as many freedoms as it can for the individuals of the nation and still preseve the security and posterity of that same nation.

We have a Democracy in the form of a Republic as opposed to a True Democracy.

Unfortunately the moral complacency of the people is slowly eroding the system"s ability to sustain itself.

Mob rule which is what many call a true democracy has never really worked in practice to the benifit of any goven society of a certian size or larger. It works well enough in small groups to a limited extent, but when applied to any body of citizens larger than around 100 people it becomes truely untenable. Which is why even the Athenians themselves relied on the executive powers of a smaller body of government and when that didnt work a tyrant assumed authority.

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Originally Posted by Ragoczy

lucy,

Thank you, by the way, for the information on Switzerland's process, I found it very interesting.

Off-topic, but I'm curious as to the minaret issue you first described? It seems exceedingly odd to me to write into law an architectural issue like putting a tower on a building ... what's the underlying problem this law is supposed to solve?

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You're very welcome.
The minaret issue, oh my... *hangs head in shame*
Of course it's not supposed to solve any existing problem. There are currently exactly 2 minarets in all of Switzerland, and none of them causes any problem at all.
It was an initiative started by a right wing xenophobic party who also happens to be the largest party in Switzerland. Of course it's not about architecture, but a populistic initiative to 1. keep happy the right wing xenophobic idiots which are already party members, 2. try to get some new right wing xenophobic idiots to join the party and 3. to generally express their right wing xenophobic idiocy and 4. do something against islamistic terrorism. For me, that last (which is what they say) just about explains everything. I've met jellyfishes which were capable of more coherent lines of thought.

It will be voted down, tho. At least i veryveryvery much hope so.

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Originally Posted by lucy

It will be voted down, tho. At least i veryveryvery much hope so.

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Never underestimate the power of the right wing xenophobes. All they have to do is make it an issue of patriotism, as in, "Vote to tear down the minarets or you're a traitor!" Quite a few people will, in all likelihood, fall for that line. After all, they fell for it her in the US.

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Originally Posted by Thorne

Never underestimate the power of the right wing xenophobes. All they have to do is make it an issue of patriotism, as in, "Vote to tear down the minarets or you're a traitor!" Quite a few people will, in all likelihood, fall for that line. After all, they fell for it her in the US.

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I don't underestimate the power of idiocy, hipocrisy and xenophoby. But i also refuse to give up hope :)

All I have to do is think of something I said a really, REALLY long time ago...."I, state name here, do solemly swear....to defend the Constitution of the United States against all enemies both foreign and domestic..." I have changed, the world has changed, but I don't see how that releases me from my vow. I no longer defend, of course, but I still support.

Gonzo

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Originally Posted by Ravenshurst

All I have to do is think of something I said a really, REALLY long time ago...."I, state name here, do solemly swear....to defend the Constitution of the United States against all enemies both foreign and domestic..." I have changed, the world has changed, but I don't see how that releases me from my vow. I no longer defend, of course, but I still support.

Gonzo

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Thank you for your service.

And that's a powerful oath. I really believe we should do away with the Pledge of Allegiance in school, spend that time teaching kids the facts that will make them want to be loyal to this country instead of forcing an oath of loyalty on them when they don't even know what the words mean, and then require an oath when someone registers to vote. Not a pledge to a flag, but to preserve, protect and defend the Constitution.