Woman arrested for videotaping police...

[Seth]

Lower federal courts (and all others) are generally cowards when it comes to upholding the Constitution if there is case law pointing the other way, and courts are generally receptive to the needs of government unless it's egregiously violating people's rights. The SCOTUS hasn't had an opportunity to hear such a case either.

But the REAL cowards are the various state legislatures that all too frequently not only do not restrain the police but actually side with the police against the citizens. All it takes is a bill making it expressly lawful to videotape and audiotape the police while they are on duty to solve the problem, but states like New Jersey and other Eastern states where the police can do no wrong in the eyes of the legislatures, getting such a bill passed is next to impossible, in part due to powerful police unions.

I disagree that the legislatures are more cowardly.

The primary duty of the lower courts is to uphold the constitution, because the constitution is the source of the entire edifice of law that the courts have to interpret and apply.

Furthermore, a judge must be expert in the law, and the interpretation and application of the law. Politicians are not experts in the area. Neither, necessarily, are their advisors. Legislators will therefore create unconstitutional laws with regularity. And therefore, we come to a key function of the separation of powers. Laws are interpreted according, in the first instance, to how they relate to the constitution. Where there is a conflict - the constitution must win.

Where courts avoid this responsibility, precedents are created that might contradict the constitution. In turn, this gives courts a precedent to refer to, which will create a widening cycle of damage to the constitution. The only thing that might mitigate the damage is where an individual case gets escalated to the Supreme Courts for adjudication. The problem then is what proportion of cases get to the Supreme Court. It seems to me that very few cases get there, which implies that there is an ongoing undermining of the constitution.

Here in Ireland, we have a process to check the constitutionality of new laws. The President (using one of the few Presidential powers) can refer new laws to the Supreme Court, where they'll be declared constitutional, or unconstitutional. Is there a similar process in the US.

No. Cases must be properly brought by a person with standing to sue, and they must be started in the lower federal courts, and the SCOTUS can either grant or deny cert (certorari...meaning they take up the case) as they choose. This keeps the President from frustrating the will of the people, as expressed by their elected representatives, through collusion with a sympathetic court.

And yes, there is an ongoing undermining of the Constitution from Progressives, but the checks and balances still remain in place, and if the People wish, they can rectify any problems with a new law (through the representative process) or by amending the Constitution (again, using the appointed process).

Politicans are indeed not experts in the law, although a good many of them are lawyers, naturally enough, but the burden of determining constitutionality is very, very strict. All laws duly enacted by a legislature are given the strong presumption of constitutionality, based on the notion that the very process of debate and voting is a check on unconstitutional legislation, and that the courts owe a duty of deference to the political deliberative process. So, if a law is constitutionally challenged by some person whose rights have been affected by the law, it is up to the plaintiff to overcome this presumption of constitutionality. And not only must he overcome it, he must overcome it by more than a preponderance of the evidence, he must show clear and convincing evidence that the law violates some provision of a state or federal constitution. It's a very high bar indeed, which is as intended, since that is a check and balance on the courts against the tyranny of the judiciary and respect for the representative democratic process and legislative deliberation.

[Seth]

Judges don't opine on laws before they're enacted, because that would be to breach the separation of powers. They'd be acting as legislators if they did.

That's probably the theory behind it, though it certainly hasn't stopped judges these days from pretending that they are the legislative, executive, and judicial branch all rolled into one.

That was an answer to where you said this:

In the US, a judge ruling on a law before being enacted is forbidden. Seriously by the constitution forbidden. I've never understood quite why that is, but the US Supreme Court does not give official legal opinions on purposed laws

There is such a thing a "judge-made" law. It is called The Common Law, and it comprised of the Corpus of judicial precedent, established and adjusted over the centuries.

Correct, but the common law can be dispensed with by the legislature and most states at least have expressly repealed the common law, except as it applies to civil torts, and replaced it with statutory law. Common law precedent is really only useful in cases where a statute is ambiguous these days.

[Cormac]

Lower federal courts (and all others) are generally cowards when it comes to upholding the Constitution if there is case law pointing the other way, and courts are generally receptive to the needs of government unless it's egregiously violating people's rights. The SCOTUS hasn't had an opportunity to hear such a case either.

But the REAL cowards are the various state legislatures that all too frequently not only do not restrain the police but actually side with the police against the citizens. All it takes is a bill making it expressly lawful to videotape and audiotape the police while they are on duty to solve the problem, but states like New Jersey and other Eastern states where the police can do no wrong in the eyes of the legislatures, getting such a bill passed is next to impossible, in part due to powerful police unions.

I disagree that the legislatures are more cowardly.

The primary duty of the lower courts is to uphold the constitution, because the constitution is the source of the entire edifice of law that the courts have to interpret and apply.

Furthermore, a judge must be expert in the law, and the interpretation and application of the law. Politicians are not experts in the area. Neither, necessarily, are their advisors. Legislators will therefore create unconstitutional laws with regularity. And therefore, we come to a key function of the separation of powers. Laws are interpreted according, in the first instance, to how they relate to the constitution. Where there is a conflict - the constitution must win.

Where courts avoid this responsibility, precedents are created that might contradict the constitution. In turn, this gives courts a precedent to refer to, which will create a widening cycle of damage to the constitution. The only thing that might mitigate the damage is where an individual case gets escalated to the Supreme Courts for adjudication. The problem then is what proportion of cases get to the Supreme Court. It seems to me that very few cases get there, which implies that there is an ongoing undermining of the constitution.

Here in Ireland, we have a process to check the constitutionality of new laws. The President (using one of the few Presidential powers) can refer new laws to the Supreme Court, where they'll be declared constitutional, or unconstitutional. Is there a similar process in the US.

No. Cases must be properly brought by a person with standing to sue, and they must be started in the lower federal courts, and the SCOTUS can either grant or deny cert (certorari...meaning they take up the case) as they choose. This keeps the President from frustrating the will of the people, as expressed by their elected representatives, through collusion with a sympathetic court.

And yes, there is an ongoing undermining of the Constitution from Progressives, but the checks and balances still remain in place, and if the People wish, they can rectify any problems with a new law (through the representative process) or by amending the Constitution (again, using the appointed process).

Politicans are indeed not experts in the law, although a good many of them are lawyers, naturally enough, but the burden of determining constitutionality is very, very strict. All laws duly enacted by a legislature are given the strong presumption of constitutionality, based on the notion that the very process of debate and voting is a check on unconstitutional legislation, and that the courts owe a duty of deference to the political deliberative process. So, if a law is constitutionally challenged by some person whose rights have been affected by the law, it is up to the plaintiff to overcome this presumption of constitutionality. And not only must he overcome it, he must overcome it by more than a preponderance of the evidence, he must show clear and convincing evidence that the law violates some provision of a state or federal constitution. It's a very high bar indeed, which is as intended, since that is a check and balance on the courts against the tyranny of the judiciary and respect for the representative democratic process and legislative deliberation.

You'll see that in a later post I address legal standing.

Please note that I'm not making declarations as to US law. I'm considering Irish law, and comparing it to US law as described by posters here. BUT, both are common law jurisdictions, and in fact, courts in both jurisdictions can quote cases from each for reference (although only those judgements by their own superior courts are binding)
.
Constitutional points can arrive for review at the Supreme Court in Common Law jurisdictions usually as follows:

1. A person, committee, or process in the executive or legislature can refer it. (In Ireland, this happens via the President, who is otherwise, more or less a figurehead and diplomat).
2. By any court, which discovers a constitutional issue in a case to hand.
3. By a person who has legal standing, which generally comes from them having suffered, or being in danger of suffering damage as a consequence of an unconstitutional act or law.

Perhaps this is not the case in the USA, but I rather suspect it is.

I didn't say anything about burdens of proof, presumptions of constitutionality, or anything like that.

(Please note that in this, and in our banking/finance/risk discussions I am not trying to be aggressive, dismissive, or a know-it-all. If there's one thing I'm sure of, it is the fallibility of my opinions!)

[Cormac]

Judges don't opine on laws before they're enacted, because that would be to breach the separation of powers. They'd be acting as legislators if they did.

That's probably the theory behind it, though it certainly hasn't stopped judges these days from pretending that they are the legislative, executive, and judicial branch all rolled into one.

That was an answer to where you said this:

In the US, a judge ruling on a law before being enacted is forbidden. Seriously by the constitution forbidden. I've never understood quite why that is, but the US Supreme Court does not give official legal opinions on purposed laws

There is such a thing a "judge-made" law. It is called The Common Law, and it comprised of the Corpus of judicial precedent, established and adjusted over the centuries.

Correct, but the common law can be dispensed with by the legislature and most states at least have expressly repealed the common law, except as it applies to civil torts, and replaced it with statutory law. Common law precedent is really only useful in cases where a statute is ambiguous these days.

That is interesting. We also have a mix of statute and Common Law. However, relief from statute can often be found in Equity, which was merged into the Common Law.

We've a challenging problem over here, because although Ireland, England and Wales all share a legal heritage in the Common Law, Europe is totally different. This causes all sorts of problems in business, in general civil, and in criminal law across our borders within the EU. Lawyers here and there don't speak the same language at all.

[Seth]

Please note that I'm not making declarations as to US law. I'm considering Irish law, and comparing it to US law as described by posters here. BUT, both are common law jurisdictions, and in fact, courts in both jurisdictions can quote cases from each for reference (although only those judgements by their own superior courts are binding)
.
Constitutional points can arrive for review at the Supreme Court in Common Law jurisdictions usually as follows:

1. A person, committee, or process in the executive or legislature can refer it. (In Ireland, this happens via the President, who is otherwise, more or less a figurehead and diplomat).
2. By any court, which discovers a constitutional issue in a case to hand.
3. By a person who has legal standing, which generally comes from them having suffered, or being in danger of suffering damage as a consequence of an unconstitutional act or law.

Perhaps this is not the case in the USA, but I rather suspect it is.

It's not. The ONLY way a constitutional issue (or any issue really) can reach the courts in the US is through a "case or controversy" which requires a plaintiff with standing to sue who has been harmed. Our courts are expressly forbidden to take up cases sua sponte, and questions cannot be "referred" for adjudication by a politician or legislature. This, again, is to prevent a tyranny of the judiciary and is part of the separation of powers scheme.

[Tyrannical]

Please note that I'm not making declarations as to US law. I'm considering Irish law, and comparing it to US law as described by posters here. BUT, both are common law jurisdictions, and in fact, courts in both jurisdictions can quote cases from each for reference (although only those judgements by their own superior courts are binding)
.
Constitutional points can arrive for review at the Supreme Court in Common Law jurisdictions usually as follows:

1. A person, committee, or process in the executive or legislature can refer it. (In Ireland, this happens via the President, who is otherwise, more or less a figurehead and diplomat).
2. By any court, which discovers a constitutional issue in a case to hand.
3. By a person who has legal standing, which generally comes from them having suffered, or being in danger of suffering damage as a consequence of an unconstitutional act or law.

Perhaps this is not the case in the USA, but I rather suspect it is.

It's not. The ONLY way a constitutional issue (or any issue really) can reach the courts in the US is through a "case or controversy" which requires a plaintiff with standing to sue who has been harmed. Our courts are expressly forbidden to take up cases sua sponte, and questions cannot be "referred" for adjudication by a politician or legislature. This, again, is to prevent a tyranny of the judiciary and is part of the separation of powers scheme.

Or so it was planned until "friend of the court" became abused.

[Seth]

Please note that I'm not making declarations as to US law. I'm considering Irish law, and comparing it to US law as described by posters here. BUT, both are common law jurisdictions, and in fact, courts in both jurisdictions can quote cases from each for reference (although only those judgements by their own superior courts are binding)
.
Constitutional points can arrive for review at the Supreme Court in Common Law jurisdictions usually as follows:

1. A person, committee, or process in the executive or legislature can refer it. (In Ireland, this happens via the President, who is otherwise, more or less a figurehead and diplomat).
2. By any court, which discovers a constitutional issue in a case to hand.
3. By a person who has legal standing, which generally comes from them having suffered, or being in danger of suffering damage as a consequence of an unconstitutional act or law.

Perhaps this is not the case in the USA, but I rather suspect it is.

It's not. The ONLY way a constitutional issue (or any issue really) can reach the courts in the US is through a "case or controversy" which requires a plaintiff with standing to sue who has been harmed. Our courts are expressly forbidden to take up cases sua sponte, and questions cannot be "referred" for adjudication by a politician or legislature. This, again, is to prevent a tyranny of the judiciary and is part of the separation of powers scheme.

Or so it was planned until "friend of the court" became abused.

Wrong. Amicus briefs can only be filed once a case has been granted certoriari. Amicus briefs are arguments of law made by those who have an interest in the case but are not parties, and they are advisory briefs only, and have no judicial standing as evidence.

[Warren Dew]

It's not. The ONLY way a constitutional issue (or any issue really) can reach the courts in the US is through a "case or controversy" which requires a plaintiff with standing to sue who has been harmed.

Well, the case can be a criminal case rather than a lawsuit, but basically yes.

[Gawd]

What's all this talk about the "Constitution"? You know that was repealed 10 years ago by George Bush, right? It doesn't exist any more. You guys are deluding yourselves.

[Cormac]

What's all this talk about the "Constitution"? You know that was repealed 10 years ago by George Bush, right? It doesn't exist any more. You guys are deluding yourselves.

I am referring to the Irish Constitution which is, supposedly, still in existence, (een though the Lisbon Treaty tore the heart out of it a couple of years ago).

[Warren Dew]

Bush was actually very good about obeying the letter and spirit of the constitutional interpretations of the legislative and judicial branches. In the case of Hamdi, who was detained in accordance with the AUMF passed by the legislature, the administration went further and arranged his release as desired by the supreme court's minority opinion when the majority said it was okay to detain him indefinitely.

To the extent that the constitution is being eroded, it's mosly through laws passed by Congress over the years.

[Cormac]

Bush was actually very good about obeying the letter and spirit of the constitutional interpretations of the legislative and judicial branches. In the case of Hamdi, who was detained in accordance with the AUMF passed by the legislature, the administration went further and arranged his release as desired by the supreme court's minority opinion when the majority said it was okay to detain him indefinitely.

To the extent that the constitution is being eroded, it's mosly through laws passed by Congress over the years.

Hr went a long way out of his way to get a pretend definition of torture though. The guy was, and remains, a cunt.

[Coito ergo sum]

Bush was actually very good about obeying the letter and spirit of the constitutional interpretations of the legislative and judicial branches. In the case of Hamdi, who was detained in accordance with the AUMF passed by the legislature, the administration went further and arranged his release as desired by the supreme court's minority opinion when the majority said it was okay to detain him indefinitely.

To the extent that the constitution is being eroded, it's mosly through laws passed by Congress over the years.

Hr went a long way out of his way to get a pretend definition of torture though. The guy was, and remains, a cunt.

That's actually false. The definition found by the justice department in their research traced the international law definition, the same one applied in cases by the European Commission on Human Rights and other tribunals around the world. They didn't invent anything new. The idea that the US someone "changed" the definition of torture is total and complete bullshit. Sure, Bush was a cunt, I agree. But, I will tell you this - the definition of torture under international law is and always has been murky and grey, to say the least. And, while the average person thinks they know what torture is, whether treatment rises to the level of torture under international law is not so clear. And, before anyone scowls at the US for being the country that "made torture illegal" one needs to be prepared to address the conduct of Britain, France, Austria, just about every South American country, not to mention Russia, China, etc., and also to review the cases on the definition of torture before the European Commission on Human Rights and the Inter-American Human Rights tribunal as well. You'd be shocked as what passed for "not torture" around the world PRIOR TO 2001. It makes water boarding look like a day at the beach.

[JacksSmirkingRevenge]

Bump.
Interesting story. Does anyone know the outcome yet?
- I took a photo of a police officer here in Chester city centre last Saturday and secretly switched to video mode when he came over and tried to arrest me.

[JacksSmirkingRevenge]

The photo in question:-

Trigger Warning!!!1! :

DSCF0034a.JPG

[youtube]http://www.youtube.com/watch?v=dIwcMFEC ... 1313866325[/youtube]

I took walk into town with my camera to indulge my hobby and on the way in I took a photo of a policeman then switched to video mode to see what would happen. - As you might expect, he tried to arrest me but I declined to provide my name, etc. leaving him stumped and (I think) a little frustrated.
I have absolutely no idea what all that "jewellery shop" stuff was about. - *shrug*
Unfortunately, after showing him some of the images I'd taken, the camera batteries expired about halfway through the conversation (bummer) and the most interesting part of the conversation is therefore missing - "There's something very dodgy about you...." - "I WILL find out who you are and when I do you'll be getting a visit from me". etc. etc.....
Anyway, the upshot was that he couldn't find anything to arrest me for (despite calling in to the station for advice) and reluctantly let me go about my business.