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- Xref: sparky misc.legal:23005 alt.censorship:10052 alt.society.civil-liberty:7464 alt.politics.usa.constitution:1516
- Newsgroups: misc.legal,alt.censorship,alt.society.civil-liberty,alt.politics.usa.constitution
- Path: sparky!uunet!usc!sol.ctr.columbia.edu!eff!mnemonic
- From: mnemonic@eff.org (Mike Godwin)
- Subject: Re: Shouting "Movie!" at a Fire Station (Schenck v US)
- Message-ID: <1993Jan21.113431.24288@eff.org>
- Originator: mnemonic@eff.org
- Sender: usenet@eff.org (NNTP News Poster)
- Nntp-Posting-Host: eff.org
- Organization: Electronic Frontier Foundation
- References: <1993Jan20.061301.2539@ucsu.Colorado.EDU> <1993Jan20.151539.5263@eff.org> <1993Jan21.040853.28616@ucsu.Colorado.EDU>
- Distribution: usa
- Date: Thu, 21 Jan 1993 11:34:31 GMT
- Lines: 34
-
- In article <1993Jan21.040853.28616@ucsu.Colorado.EDU> fcrary@ucsu.Colorado.EDU (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.
-
- To rule on those cases is to make law. It cannot be avoided.
-
- >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.
-
- Frank, both the law and the equity courts in England made law.
- If you are saying the Framers intended to give the federal courts
- *less* power than they had in England, you are flying in the face of even
- the most conservative legal and historical scholarship.
-
- And when you say "I conclude" here, you're engaging in just the kind of
- result-oriented interpretation that you'd criticize a judge for.
-
-
- --Mike
-
-
-
- --
- Mike Godwin, |"I'm waiting for the one-man revolution
- mnemonic@eff.org| The only one that's coming."
- (617) 864-0665 |
- EFF, Cambridge | --Robert Frost
-