Re: US to charge and seek death penalty for six 9/11 detainees
Originally Posted by mclatch
To a large extent, the Constitution sets out a set of defining and higher principles. These are things that should not be changed lightly, hence the requirement of the super majority. After 9/11 I think half of the population would have been foolish enough to give up half of their rights had they been given the opportunity.
Such a system would provide for no consistency and predictability in the law.
Case law precedent is what allows judges to essentially legislate from the bench. If each and every case were taken by its own unique merits and judged by a prudent judge or jury we would be much better off in my opinion.
The job of the jury is basically to determine facts. If the law is bad, it can and should be changed by legislative enactment. It is done all the time.
Telling jurors to be automatons and go against what they know/feel is right simply because of past ruling on a similar case is taking the power out of the hands of the individual and putting it in the hands of the state – which was what the Constitution was designed to safeguard.
Do you think exploitation would be less if every jury was left to judge the merits of a case and apply whatever remedy they felt like? The key to winning a case would be getting it in front of the right jury, not being on the right side of the law. Currently most cases (I'm wanting to say almost 90%) never even make it to court because there is consistency in the law and one can often tell the outcome before hand.
Instead we see some “good” practitioners and exploiting case law. The records are so voluminous that one could conceivably find enough precedent to help whatever cause they are being paid to serve. This seems more like manipulation than justice to me.
This is essentially how things started out way back in the day.
We ought to allow common sense and good “judgment” to rule the judiciary.
Um... Yes? A seemingly fundamental aspect of justice is that people in the same situation should receive the same treatment. This is one of the major reasons precedent was adopted in the first place.
Would there be diversity among judicial decisions – yes? But is this bad?
A distinction first needs to be made between constitutional law and statutory/common law. If the unpopular ruling is based on statute or common law then the answer is simple - pass a different statute. Problem solved.
What gets people in a uproar is that unwise or politically motivated decisions set precedent that runs contrary to the will of the people. If it were simply a stray judge or an incompetent jury I think people would be much more at ease knowing it is the exception rather than a newly established "rule."
If the decision is based on constitutional law then the people still have the power to change things if it is really unpopular enough. If it is not unpopular enough to change at the time of the decision that is probably a pretty good indication that people need to chill out and think about it for a while. As a general rule, I trust nine highly educated people who have done some investigating of the issue to protect my rights more than I trust public opinion. That is why judges get lifetime appointments - so that they don't have to make their decisions based on the political winds of the day.
Rights are also there to protect the minority. If you are in the majority you don't really need constitutional protections all that much because your group can advance your objectives legislatively. Yet another reason why a super majority is usually required to amend constitutions.