INDIA SUPREME COURT GETS IT

Regardless of what one’s philosophy happens to be on the subject of same gender sodomy, no rational person can deny that the India Supreme Court fully comprehends and appreciates the precepts of power separation and judicial constraints.

The India Supreme Court respects the fact that the court must rule within the context of existing law, whether or not it agrees with the law. Like our Virginia Phillips, who perpetrated an attempt to circumvent the repeal process, the lower court in India exceeded judicial authority; like Phillips, it presumed to legislate, which is the exclusive domain of the legislature; there, the Parliament; here the Congress.

This is not to say that the United States Supreme Court does not get it; but our court is rife with hubris and disdain for the rule of law; and its members are accountable only to each other. It substitutes convoluted contortions of the fifth and fourteenth amendments where there is otherwise no constitutional context to support its ruling. It is ludicrous to attribute 5-4 decisions to partisanship when they clearly  portend  rulings, whose constitutionality is dubious, at best.

The signers of the Constitution left no doubt that they intended a wall of separation should exist between the powers (http://constitutionus.com/#transmitcongress). The Supreme Court is not intended to be an alternative to the legislative process. The role of the court is not to confer dignity, as Anthony Kennedy seems to believe; nor, to determine obsolescence as Ruth Bader-Ginsburg seems to think (http://www.thetakeaway.org/story/second-amendment-outdated-justice-ginsburg-says/).

Each time the court exceeds its Constitutional authority; presuming to legislate by writing rulings without Constitutional foundation; and the Congress fails to act, the country’s constitutional foundation is eroded.

Legislation is a deliberative, sometimes tedious process. Regarding any court as empowered to expedite that process or any court ruling as superseding congressional legislation is an egregious contravention of the Constitution.

India’s court was correct to defer to the Parliament. They get it; we do not.

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4 thoughts on “INDIA SUPREME COURT GETS IT

  1. India’s courts are based on the english legal system, which puts primacy on the power of the legislature to do what pleases them in most cases. The american system relies on the concept of judicial review, (see marbury v madison) in which the judicial branch determines if the laws passed by the legislatures are constitutional or not. You can spout the word “constitution” as many times as you like, but until you acquire a basic understanding of how it works, you should refrain from amateur interpretation.

    • The supreme court is an appellate court (see constitution Art III). Nothing in the United States Constitution confers legislative force to any court ruling. Ostensibly the ruling is based on the constitution. If a ruling creates a law it is unconstitutional. Laws passed by congress must be repealed by congress, the constitution does not confer that power on the judiciary. Further, what is the court’s basis for this constitutional analysis and if they are all using the same source and they are all well versed in the law why would there be a 5-4 split? No the drafters were clear; there is no need for interpretation because you cannot interpret what is not there.

      • 1: The supreme court is an appellate court in some circumstances and a court of original jurisdiction in other situations (like state vs state).

        2: The job of the supreme court is essentially to say whether or not the laws passed by congress are in conformity with constitutional limits, which allows the court to strike down legislation passed, even if it was voted for by every member of congress. The Supreme court can overrule congress, and congress’ trump card is amending the constitution.

        3: The members of the supreme court can differ in their interpretation of the law, which isnt a black and white thing, there is more grey area than you seem to think.

        4: Again please look up marbury v madison and read the opinion in order to understand the concept of judicial review.

      • I have seen the case and even Madison did not regard it as precedent setting. Madison and others have written far more extensively on the question; and his convention notes are informative if not instructive. I do not have time to go through it now, but when I do I will cite the sources, precisely, to which I refer.

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