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You say, "that is the role of the judiciary in a common law system!" but America is primarily a Constitutional-law system, and only secondarily a common-law sys

You say, "that is the role of the judiciary in a common law system!" but America is primarily a Constitutional-law system, and only secondarily a common-law system. We have laws (the Constitution) describing what the judicial branch is meant to do, and what you describe here as your ideal is at least partially at odds with what they say. It appears you are also a skeptic of the principle of Separation of Powers to begin with. You are, of course, not asked to accept that this is ideal. I will, however, ask that you accept that this structure was designed and codified into law to uphold that principle, and this is often at the root of (principled) objections when things are done your preferred way. This is a better place to start a conversation, rather than of celebrating your failure to understand (which is meant to imply that something does not make sense, but really says more about your own understanding.) Imagine an American complaining: "Parliament is so confusing! What is all this drama about 'forming a government' and coalitions? Why can't they just elect a President directly?" The American may or may not have a meaningful point, but if they do have a point, this point is rather ill-served by the venue and the manner in which it is raised. The way in which you raise your objections here is similar.

mjburgess 6y ago
My claim is that there is nothing in your constitution or legal set up which establishes anything like a "legislating from the bench" objection. I haven't failed to understand your system, I am claiming, there is nothing present in it to understand. The constitution itself places a court as its interpretive body: the power of the constitution is exercised by judges, explicitly mandated to interpret it. Judicial power isn't some "secondary" feature over which congress is meant to preside. It is the primary mechanism of the constitutional order itself. The american legal order is established, maintained and exercised by the judiciary. There is a mistaken view that Congress as a democratic body has more "legitimacy" and therefore that others exercising power are overstepping their mark. But the american constitution is not democratic, and has no high regard for democracy as the principle authorising source of power. The founders were far more concerned to rest power in as narrow hands as possible, hence the supreme court and hence the electoral college. There is no such thing as "legislating from the bench" -- this is just judges exercising their constitutional role.

mjburgess 6y ago

My claim is that there is nothing in your constitution or legal set up which establishes anything like a "legislating from the bench" objection. I haven't failed to understand your system, I am claiming, there is nothing present in it to understand. The constitution itself places a court as its interpretive body: the power of the constitution is exercised by judges, explicitly mandated to interpret it. Judicial power isn't some "secondary" feature over which congress is meant to preside. It is the primary mechanism of the constitutional order itself. The american legal order is established, maintained and exercised by the judiciary. There is a mistaken view that Congress as a democratic body has more "legitimacy" and therefore that others exercising power are overstepping their mark. But the american constitution is not democratic, and has no high regard for democracy as the principle authorising source of power. The founders were far more concerned to rest power in as narrow hands as possible, hence the supreme court and hence the electoral college. There is no such thing as "legislating from the bench" -- this is just judges exercising their constitutional role.