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U.S. law as a monolith? NOT EVEN!


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#1    sear

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Posted 12 May 2013 - 10:27 AM

In the U.S., there's all sorts of law.
There's motor vehicle & traffic law.
There's divorce law, estate law, etc.
There are local ordinances*. A lowly justice of the peace, or a local traffic court law judge can issue law from his / her bench: arrest warrants for example.

There's Constitutional law, and there's subordinate statute: law passed by State legislatures.

But the Wizard Of Oz-like shadowy figure is court precedent.
These enforceable elements of U.S. law do not emanate from legislatures.
Instead they become standards of our law due to our continuing commitment to the ancient idea of stare decisis: Latin for "to stand by things decided."

For sensible reason we don't want double-standards in our law.
Why should one citizen be found not guilty for driving 40 MPH in a 35 MPH zone, when an ostensibly equal citizen is convicted for the identical charge?
Stare decisis is our attempt to standardize our law. But "the devil is in the details" [see ref: notable court precedent below].

But that can and has gone haywire on occasion. Consider the precedent established by Wickard v. Filburn; a precedent that stands to this day.

Quote

  “Well article 1 section 8 of the Constitution gives Congress the power to regulate interstate commerce. Beginning in the 1930's progressives used the commerce clause to claim that the government could do virtually anything it wished. It culminated in the case mentioned in the opening post to this thread, Wickard v. Filburn. In that case, Mr. Filburn had grown a few hundred bushels of wheat over his allotment in FDR's disasterous price fixing scheme. The wheat was entirely for Filburn's own consumption but the Supreme Court held that Filburn's fines were Constitutional because the wheat he grew for himself would otherwise have to be procured off of the open market and that affected interstate commerce.
After that there were practically no limits to the scope of government power.”  Cincinnatus87  
A farmer can't plant crops for his own family, because of the commerce clause?!

* not to be confused with ordnance
  ordinance (ôr´dn-ens) noun
Abbr. ord.
An authoritative command or order.

ordnance (ôrd´nens) noun
Abbr. ord., ordn.
Military materiel, such as weapons, ammunition, combat vehicles, and equipment.

Excerpted from The American Heritage® Dictionary of the English Language, Third Edition  © 1996 by Houghton Mifflin Company. Electronic version licensed from INSO Corporation; further reproduction and distribution in accordance with the Copyright Law of the United States. All rights reserved.  


ref: notable court precedent

Quote

  1803: Marbury v. Madison. The Court ruled that Congress exceeded its power in the Judiciary Act of 1789; thus, the Court established its power to review acts of Congress and declare invalid those it found in conflict with the Constitution.
1819: McCulloch v. Maryland. The Court ruled that Congress had the authority to charter a national bank, under the Constitution's granting of the power to enact all laws "necessary and proper" to exact the responsibilities of government. The Court also held that the national bank was immune to state taxation.
1819: Trustees of Dartmouth College v. Woodward. The Court ruled that a state could not arbitrarily alter the terms of a college's contract. (In later years the Court widened the implications by using the same principle to limit the states' ability to interfere with business contracts.)
1857: Dred Scott v. Sanford. The Court declared unconstitutional the already-repealed Missouri Compromise of 1820 because it deprived a person of his or her property- a slave- without due process of law. The Court also ruled that slaves were not citizens of any state nor of the U.S. (The latter part of the decision was overturned by ratification of the 14th Amendment in 1868.)
1896: Plessy v. Ferguson. The Court ruled that a state law requiring federal railroad trains to provide separate but equal facilities for black and white passengers neither infringed upon federal authority to regulate interstate commerce nor violated the 13th and 14th Amendments. (The "separate but equal" doctrine remained effective until the 1954 Brown v. Board of Education decision.)
1904: Northern Securities Co. v. U.S. The Court ruled that a holding company formed solely to eliminate competition between two railroad lines was a combination in restraint of trade, violating the federal antitrust act.
1908: Muller v. Oregon. The Court upheld a state law limiting the working hours of women. (Instead of presenting legal arguments, Louis D. Brandeis, counsel for the state, brought forth evidence from social workers, physicians, and factory inspectors that the number of hours women worked affected their health and morals.)
1911: Standard Oil Co. of New Jersey et al. v. U.S. The Court ruled that the Standard Oil Trust must be dissolved because of its unreasonable restraint of trade, not because of its size.
1919: Schenck v. U.S. In its first decision regarding the extent of protection afforded by the First Amendment, the Court sustained the Espionage Act of 1917, maintaining that freedom of speech and press could be constrained if "the words used are in such circumstances and are of such a nature as to create a clear and present danger. . ."
1925: Gitlow v. New York. The Court ruled that the First Amendment prohibition against government abridgment of the freedom of speech applied to the states as well as to the federal government. The decision was the first of a number of rulings holding that the 14th Amendment extended the guarantees of the Bill of Rights to state action.
1935: Schechter Poultry Corp. v. U.S. The Court ruled that Congress exceeded its authority to delegate legislative powers and to regulate interstate commerce when it enacted the National Industrial Recovery Act, which afforded the U.S. president too much discretionary power.
1951: Dennis et al. v. U.S. The Court upheld convictions under the Smith Act of 1940 for speaking about Communist theory that advocated the forcible overthrow of the government. (In the 1957 Yates v. U.S. decision, the Court moderated this ruling by allowing such advocacy in the abstract, if not connected to action to achieve the goal.)
1954: Brown v. Board of Education of Topeka. The Court ruled that separate public schools for black and white students were inherently unequal, thus state-sanctioned segregation in public schools violated the equal protection guarantee of the 14th Amendment. And in Bolling v. Sharpe the Court ruled that the congressionally mandated segregated public school system in the District of Columbia violated the Fifth Amendment's due process guarantee of personal liberty. (The Brown ruling also led to the abolition of state-sponsored segregation in other public facilities.)
1957: Roth v. U.S., Alberts v. California. The Court ruled that obscene material was not protected by the First Amendment guarantees of freedom of speech and press, defining obscene as "utterly without redeeming social value" and appealing to "prurient interests" in the view of the average person. (This definition, the first offered by the Court, was modified in several subsequent decisions, and the "average person" standard was replaced by the "local community" standard in the 1973 Miller v. California case.)
1961: Mapp v. Ohio. The Court ruled that evidence obtained in violation of the 4th Amendment guarantee against unreasonable search and seizure must be excluded from use at state as well as federal trials.
1962: Engel v. Vitale. The Court ruled that public school officials could not require pupils to recite a state-composed prayer at the start of each school day, even if the prayer was nondenominational and pupils who so desired could be excused from reciting it, because such official state sanction of religious utterances was an unconstitutional attempt to establish religion.
1962: Baker v. Carr. The Court held that the constitutional challenges to the unequal distribution of voters among legislative districts could be resolved by federal courts, rejecting the doctrine set out in Colegrove v. Green in 1946 that such apportionment challenges were "political questions."
1963: Gideon v. Wainwright. The Court ruled that the due process clause of the 14th Amendment extended to state as well as federal defendants, thus all persons charged with serious crimes must be provided with an attorney, and states were required to appoint counsel for defendants unable to pay their own attorneys' fees.
1964: New York Times Co. v. Sullivan. The Court ruled that the First Amendment guarantee of freedom of the press protected the press from libel suits for defamatory reports on public officials unless the officials proved that the reports were made from actual malice. The Court defined malice as "with knowledge that (the defamatory statement) was false or with reckless disregard of whether it was false or not."
1965: Griswold v. Conn. The Court ruled that a state unconstitutionally interfered with personal privacy in the marriage relationship when it prohibited anyone, including married couples, from using contraceptives.
1966: Miranda v. Arizona. The Court ruled that the guarantee of due process required that before any questioning of suspects in police custody, the suspects must be informed of their right to remain silent, that anything they say may be used against them, and that they have the right to counsel.
1973: Roe v. Wade, Doe v. Bolton. The Court ruled that the fetus was not a "person" with constitutional rights and that a right to privacy inherent in the 14th Amendment's due process guarantee of personal liberty protected a woman's decision whether or not to bear a child. During the first trimester of pregnancy, the Court maintained, the decision to have an abortion should be left entirely to a woman and her physician. Some regulation of abortion procedures was allowed in the 2d trimester, and some restriction of abortion in the 3d.
1974: U.S. v. Nixon. The Court ruled that neither the separation of powers nor the need to preserve the confidentiality of presidential communications could alone justify an absolute executive privilege of immunity from judicial demands for evidence to be used in a criminal trial.
1976: Gregg v. Georgia, Profitt v. Fla., Jurek v. Texas. The Court held that death, as a punishment for persons convicted of first degree murder, was not in and of itself cruel and unusual punishment in violation of the 8th Amendment. The Court also ruled that the amendment required the sentencing judge and jury to consider the individual character of the offender and the circumstances of the particular crime before deciding whether to impose the death sentence. In the associated Woodson v. N.C., Roberts v. La., the Court ruled that states could not make death the mandatory penalty for first-degree murder, since that would fail to meet the constitutional requirement for the consideration of the individual offender and offense.
1978: Regents of Univ. of Calif. v. Bakke. The Court ruled that a special admissions program for a state medical school under which a set number of places were set aside for minority group members, with white applicants denied the opportunity to compete for those seats, violated Title XIV of the 1964 Civil Rights Act, which forbids the exclusion of anyone, because of race, from participation in a federally funded program. The Court also ruled that admissions programs that considered race as one of a complex of factors involved in the decision to admit or reject an applicant were not unconstitutional.
1986: Bowers v. Hardwick. The Court refused to extend any constitutional right of privacy to homosexual activity, upholding a Georgia law that in effect made such activity a crime. (Although the Georgia law specifically prohibited sodomy, whether heterosexual or homosexual, enforcement had been confined to homosexual sodomy.) In Romer v. Evans (1996), however, in a decision more favorable to gay rights, the Court struck down a Colorado constitutional provision that barred legislation protecting homosexuals from discrimination.
1990: Cruzan v. Missouri. The Court ruled that a person had the right to refuse life-sustaining medical treatment. However, the Court also ruled that, for a comatose patient, a state could require "clear and convincing evidence" that the patient would not have wanted to live under those conditions before treatment could be withheld.
1995: Adarand Constructors v. Peña. The Court held that federal programs that classify people by race, unless "narrowly tailored" to accomplish a "compelling governmental interest," may deny individuals the right to equal protection. Such federal programs, the Court maintained, must adhere to the same strict standards required of state-run affirmative action programs.
1995: U.S. Term Limits Inc. v. Thorton. The Court ruled that it is unconstitutional for either the states or Congress to limit the terms of members of Congress, since the Constitution reserves the right to choose federal lawmakers to the people. (This ruling invalidated 23 congressional term-limit laws that had been passed since 1990.)

The World Almanac® and Book of Facts 1997 is licensed from K-III Reference Corporation. Copyright © 1996 by K-III Reference Corporation. All rights reserved.  



#2    third_eye

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Posted 12 May 2013 - 12:15 PM

Posted Image

~ nice looking bunch //

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' ... life and death carry on as they always have ~ and always will, only the dreamer is gone ~ behind the flow of imagination, beyond any effort to be still
dancing in the ebb and flow of attention, more present than the breath, I find the origins of my illusions, only the dreamer is gone ~ the dream never ends
'

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#3    Ashotep

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Posted 12 May 2013 - 12:52 PM

No wonder so many people break laws and are in prison, there are so many to break.


#4    sear

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Posted 13 May 2013 - 12:05 AM

My bad.

My intended point of this topic was to call attention to how the judicial branch influences such a vast swath of our nation's laws.

Legislatures may produce laws. But the courts interpret  them.
And the volume of those judicial laws or rulings increases every time a court rules.

And to put that in context, many of our law judges, including the Chief Justice of the Supreme Court, isn't even elected. He's appointed.

Lest you think it doesn't matter, check out the Citizens United  ruling from SCOTUS. That one ruling might just be our undoing.





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