Perhaps I was being unclear; I was not referring to homosexuality as the new situation. That would be silly.
The new situation is that society has changed its definition of marriage—from a narrow definition involving just a man and a woman, to a more broad one that ignores gender. Sure, there were always niche groups asking about it, but a hundred years ago there simply wasn’t enough call for it to push it up to the supreme court.
My overall point is that new situations always come up where you’re not sure what to do, and rather than rip up everything when it happens, the courts try to make it fit within the existing framework as best they can. If something -really- doesn’t fit, it’s the court’s job to hackjob it until there’s proper legislation to cover it. But it’s also the job of the court to run triage; they -could- have legalized gay marriage sooner, but they -should- not have done so, because other things were on their docket up until recently that were higher priority.
Who sets the priority of those things that make it through the courts? Society at large, which is why you need ‘new situations’ such as the definition change I mentioned above.
If you want to toss around ‘should’s for why this didn’t happen sooner, there ‘should’ have been more outcry from the general population saying that this was something they wanted, which of course is absurd.
You’re implying that the US constitution either implicitly or explicitly refers to changing societal norms and it is within the supreme court’s authority to decide what these norms are at any given time and how to apply them to the law. If this is indeed your intent, I would like to see some support for it in the text of the constitution. It sounds like the court is authorized to interpret not only the law but also the will of people whereas in my understanding the latter should be the domain of the legislative branch.
The new situation is that society has changed its definition of marriage—from a narrow definition involving just a man and a woman, to a more broad one that ignores gender.
The main reason it did so was court rulings on this and related subjects. Thus using your definition of “new situation”, your judicial philosophy seems to amount to “the judicial system can rewrite the constitution however is sees fit”.
Perhaps I was being unclear; I was not referring to homosexuality as the new situation. That would be silly.
The new situation is that society has changed its definition of marriage—from a narrow definition involving just a man and a woman, to a more broad one that ignores gender. Sure, there were always niche groups asking about it, but a hundred years ago there simply wasn’t enough call for it to push it up to the supreme court.
My overall point is that new situations always come up where you’re not sure what to do, and rather than rip up everything when it happens, the courts try to make it fit within the existing framework as best they can. If something -really- doesn’t fit, it’s the court’s job to hackjob it until there’s proper legislation to cover it. But it’s also the job of the court to run triage; they -could- have legalized gay marriage sooner, but they -should- not have done so, because other things were on their docket up until recently that were higher priority.
Who sets the priority of those things that make it through the courts? Society at large, which is why you need ‘new situations’ such as the definition change I mentioned above.
If you want to toss around ‘should’s for why this didn’t happen sooner, there ‘should’ have been more outcry from the general population saying that this was something they wanted, which of course is absurd.
This is LW. Think meta.
You’re implying that the US constitution either implicitly or explicitly refers to changing societal norms and it is within the supreme court’s authority to decide what these norms are at any given time and how to apply them to the law. If this is indeed your intent, I would like to see some support for it in the text of the constitution. It sounds like the court is authorized to interpret not only the law but also the will of people whereas in my understanding the latter should be the domain of the legislative branch.
The main reason it did so was court rulings on this and related subjects. Thus using your definition of “new situation”, your judicial philosophy seems to amount to “the judicial system can rewrite the constitution however is sees fit”.