Dafuq are you talking about
@claykenny ?
If someone is arguing that something is unconstitutional, then they must be able to point to SOMETHING that's actually in the constitution that is somehow possibly relevant to their dispute with the law, be it criminal, civil or common.
You said if it isn’t in the Constitution, it isn’t a matter for the courts to decide and it is up to the legislature. That isn’t true in a common law system like ours. If there isn’t a codified law and it isn’t prohibited by the constitution, it is up to the courts. Once the Supreme Court rules, it is effectively a law based on precedent until legislature decides to amend that law, so long as that law is not unconstitutional.
In a civil law system, like France, it is legal unless there is a specific code prohibiting it.
As an example, let’s say there’s a law against having sex with sheep but someone has sex with a goat.
In a common law system, like ours, a judge can rule that having sex with a goat is illegal (even though there isn’t a law against it) because it is a reasonable assumption that a sheep and a goat are similar. But, they can also rule that it is legal because the original intent of the law was only to prohibit sex with sheep and goats are ok. Then it gets appealed and reheard and challenged and eventually a Supreme Court makes a ruling that takes precedent.
In a civil law system, a judge would rule sex with a goat is legal because there is no specific code against it. They have minimal leeway unless the code is very ambiguous. The legislature would then have to amend the code to also say sex with goats was illegal in addition to sheep.
Is the first example an “activist judge”? No, it’s the system we have in place to deal with issues when there isn’t already a code against it.
So, your comment that it isn’t the place for the court to decide is wrong. It was and will be until there is a codified law, so long as that law isn’t challenged and deemed unconstitutional.
