|CITES BY TOPIC: judge-made law|
Black's Law Dictionary, Sixth Edition, p. 841:
Judge-made law. A phrase used to indicate judicial decisions which construe away the meaning of statutes, or find meanings in them the legislature never intended. It is perhaps more commonly used as meaning, simply, the law established by judicial precedent and decisions. Laws having their source in judicial decisions as opposed to laws having their source in statutes or administrative regulations.
[Black's Law Dictionary, Sixth Edition, p. 841]
In the light of their experience, the Framers of the Constitution chose to keep the judiciary dissociated from direct participation in the legislative process. In asserting the power to pass on the constitutionality of legislation, Marshall and his Court expressed the purposes of the Founders. See Charles A. Beard, The Supreme Court and the Constitution. But the extent to which the exercise of this power would interpenetrate matters of policy could hardly have been foreseen by the most prescient. The distinction which the Founders drew between the Court's duty to pass on the power of Congress and its complementary duty not to enter directly the domain of policy is fundamental. But, in its actual operation, it is rather subtle, certainly to the common understanding. Our duty to abstain from confounding policy with constitutionality demands perceptive humility as well as self-restraint in not declaring unconstitutional what in a judge's private judgment is deemed unwise and even dangerous.
Even when moving strictly within the limits of constitutional adjudication, judges are concerned with issues that may be said to involve vital finalities. The too easy transition from disapproval of what is undesirable to condemnation as unconstitutional has led some of the wisest judges to question the wisdom of our scheme in lodging such authority in courts. But it is relevant to remind that, in sustaining the power of Congress in a case like this, nothing irrevocable is done. The democratic process, at all events, is not impaired or restricted. Power and responsibility remain with the people, and, immediately, with their representatives. All the Court says is that Congress was not forbidden by the Constitution to pass this enactment and that a prosecution under it may be brought against a conspiracy such as the one before us. [341 U.S. 553]
"This court has no authority to interpolate a limitation that is neither expressed nor implied. Our duty is to execute the law, not to make it."
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