alt Hacker NewsWith my respect for you as a person, I think your idea here is demonstrating both ignorance and cynicism to the way the law works.
This type of interpretation of law is by design.
When lawmakers write a law, it’s specifically the judicial branch’s job to interpret it, which is exactly what is happening here.
It’s also exactly how you describe by design: legislators can pass laws that say whatever they want. They can pass a law that says that all left-handed people are subject to a 50% income tax even though such a thing would clearly violate the constitution. Legislatures can make illegal laws just by having the votes to do so. The role of the judicial branch is to interpret the constitutionality of laws that are made.
Critically, a lawsuit has to challenge a law’s legality and constitutionality in order for it to be interpreted as unconstitutional. There also has to be a harmed party that shows they have standing to make that lawsuit.
It’s entirely possible that nobody brought this specific argument to a judge in the last 158 years. It’s also entirely possible that what is acceptable by reasonable people in society has changed over time, which can alter the interpretation of laws. That is normal, expected, and by design.
I think comments like yours unnecessarily demonize “activist judges” when this is the designed function of their role.
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You're missing the philosophical principle that the more laws you have the wider the breadth of the domain that laws can interpret becomes, and that laws generally accrue. This is not by design, and there are jurisdictions which explicitly curtail this by having sunset laws.
The overwhelming use of civil instead of common law by the world would beg to differ that there is any consensus on this.
I agree with a lot of the advantages of common law that can sort of legislate through precedent. But it does make it basically impossible to be on notice of what is illegal and what isn't, particularly in the modern world where not only are there hundreds of thousands of law and thousands of pages of federal "regulations" bound as law but you also have to know all the precedent and asterisks to the interpretations to know what is actually illegal.
“They can pass a law that says that all left-handed people are subject to a 50% income tax even though such a thing would clearly violate the constitution”
I think that would be constitutional, but in conflict with other laws.