> The Courts invented qualified immunity, and the Courts should have done away with it, as well.
Herein lies the problem. The Courts aren't constitutionally permitted to invent much of anything.
Herein lies the problem. The Courts aren't constitutionally permitted to invent much of anything.
The argument in dissent is that none of the members of either house or senate intended “sex” to include orientation or identity in 1964. Despite society having a different opinion on that today, redefining “sex” is not the courts prerogative.
I read the court's decision and the test they applied was "if this person's sex was the opposite would they not have been fired ? ". In both the cases of orientation and identity, the answer is a resounding yes. If someone that was gay was female, they wouldn't have been fired, same for a lesbian if she were a man. Also same for transgenders, if their sex was reversed, they would keep the job. I don't see how this is redefining "sex". The decision does not say that sex includes orientation or identity like you claim.
I don’t quite understand your response.
The legislature deals in broad hypothetical scenarios, for example perhaps "Putting anchovies on pizza shall be a crime punishable by death".
Courts must deal with an actuality with lots of specific facts that could not possibly have been anticipated by the legislature. For example are these particular fish anchovies? Was this item a pizza in the sense the legislature meant? Who exactly "put" the anchovies on the pizza if it happened automatically by action of a machine? The person who installed the machine? The person who loaded these specific anchovies into a hopper? Does it matter if that person knew the machine makes pizza?
It may also run into larger questions. Is the legislature really allowed to kill people for putting anchovies on their own pizza? If not, why not? Would it be allowed to fine them? All of this has the effect of "creating law" in order to dispense Justice, which is the whole reason we created courts.
Maybe the same applies in the US too.
Courts adjudicate the law, including common law. They cannot create new law.
If there was no law or common law establishing "qualified immunity" then the court cannot invent qualified immunity.
In fact, in this very article, one of the Justices agrees with me here:
> Thomas has argued that qualified immunity is essentially a creation of the justices — substituting “our own policy preferences” for that of Congress.
All in all, it's a failed system that requires someone to even have to utilize the supreme court to settle these types of matters. I don't believe the government can legitimately absolve itself from any liability, regardless of circumstance, that a private person is not absolved of. This would require actual change on a state and local level, but that's not a change that most people desire. They believe the state is benevolent, there's only a problem when it's a problem they (the public) face themselves.
That's the troublesome crux that bugged even Jefferson if I recall, that essentially those appointed for life judges through judicial review could single handedly shift the direction of policy in the nation.
For as much effort as was put in to constrain the Executive, the judiciary was a rather pronounced backdoor that I'm unsure that any amount of wrangling or re-architecture could resolve.
Though, I'd love to see an experiment where affordances were made for a "Supreme Jury" of the people to balance out the political strategic value of Supreme Court justice appointments to counter the long term provisioning of power, but I'm still unsure whether that would be stable in terms of maintaining any semblance of checks and balances.
Perhaps that Jury is vested with final discretion over acceptance of writs of certiorari, allowing the populace to direct the attention of the court, but still leaving the review to the appointees. I'm still not sure there's not an exploit there somewhere, but it would be an interesting way to essentially create an "anti-legislature", primarily tasked (given the general tone of Supreme Court appeals) of knocking law off the books. Then again, given I'm just spitballing, I'd want to sit down and give it a real hard think as to whether that would really do anything other than add in more complexity.
Indeed, you are correct. Judicial review is also unconstitutional.
This does indeed beg the question of resolving disputes of constitutionality. I don't believe the congress has the authority to compel the executive to do anything, other than their existing abilities to pass laws. The executive is free to enforce, or not enforce, whatever laws as they see fit, however they see fit. The court's role is to decide if the executive is appropriately applying the law in a particular case, as written by the congress.
There is no explicit or implicit need for judicial review. Why?
What is the purpose of the Constitution? To give limited, specific powers to the federal government. Who's giving these powers? The states.
It's the states' job to limit unconsitutional power grabs by the federal government. How do they do that? Well, both houses of congress are elected by people of each state, not nationally. We can also dive down the rabbit hole of the 17th amendment.
Crucially, the executive is elected by a body appointed by each state. In it's current form, the states have adopted a system where the electors are appointed based on a state's popular vote. This needn't be the case.
Finally, there's the question of enforcement. For much of the early history of the US, states were tasked with enforcing federal laws. A very prominent example of this: https://en.wikipedia.org/wiki/Fugitive_Slave_Act_of_1850#Nul...
This brings us to the final line of defense against unconstitutional acts: nullification. The entire reason the US has a trial by jury system is to judge the law, not the facts. There's no room for a judge to interpret whether a law is fair, or constitutional. Only for them to preside over the trial and adjudicate whether or not the state is applying law, not adjudicating the law themselves.
Is this a perfect system? No, but it's the one we used to have, and unsurprisingly, it's better than the one we have now.