NetNews Usenet Archive 1993 #3/NN_1993_3.iso/spool/misc/legal/22998

Internet Message Format | 1993-01-29 | 3.1 KB

Xref: sparky misc.legal:22998 alt.society.civil-liberty:7461 alt.politics.usa.constitution:1511
Newsgroups: misc.legal,alt.society.civil-liberty,alt.politics.usa.constitution
Path: sparky!uunet!spool.mu.edu!uwm.edu!linac!uchinews!ellis!thf2
From: [e-mail] (Ted Frank)
Subject: Judicial Power = "Create" Law?  Founders Said Yes.
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Date: Thu, 21 Jan 1993 06:08:22 GMT
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I'm taking this out of alt.censorship.
In article <[e-mail]> [e-mail] (Frank Crary) writes:
>The English Court of Equity and the federal courts under Article III
>both have jurisdiction over (i.e. the power to hear and rule on) such
>cases. But jurisdiction doesn't say anything about how such cases are
>to be determined, simply that the court may, in some way, rule
>on them. In the case of the Court of Equity, this included making
>Common Law. Since the Constitution specifically gives the federal
>courts "judicial" power but _no_ "legislative" power, I conclude
>that the federal courts may not create law (a legislative power)
>in order to settle cases.

This is the exact same position I took until I started reading
what 18th century Anglo-American theorists actually thought "judicial
power" meant.  It included the concept of what you call "creating"
law.  It's an inevitable part of interpreting law.  The Founders
thought that judges could create law, subject to legislative
override (within the bounds of the Constitution).

To quote Eskridge: "Educated lawyers in 1789 would have considered
statutory texts binding on courts, but would not have dogmatically
argued that statutory interpretation involves nothing more than
divining the intent of the legislature."  135 U Pa L Rev 1479, 1502-03.

Blackstone's commentaries, at Vol. 1, page 91, says that courts
should "expound the statute by equity" to reject unreasonable
consequences "where some collateral matter arises out of the general
words."  (See also College of Physician's Case, 123 Eng Rep 928 (C.P. 1609)).

See Alexander Hamilton in Federalist #78, calling for courts to have
the power to control "unjust and partial laws" by "mitigating the
severity and confining the operation of such laws."

See Blatt's study of the history of statutory interpretation in 6 Cardozo
L Rev 799 (1985).

The whole notion of original intent falls when judged by its own merits:
original intent is a 19th century conceit, *not* the original intent
of the Founders.  How can one argue for the use of the original intent
of the Founders when the original intent of the Founders did not include
the use of the original intent of the Founders?
--
ted frank                     | [e-mail]
standard disclaimers          | void where prohibited
the university of chicago law school, chicago, illinois 60637