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If the Law is not clear then who gets to decide the rule? I don’t think it’s clear that Courts get to. Thinking about the 14th Amendment I don’t think it’s clear the SC gets to make the decision. Jurisdiction has meaning and I don’t see why the SC gets to choose the meaning. Reasonable people can have different meanings.
Ideally the legislature would clarify. I am not sure how this would work with an Amendment. Could a simple bill make the decision or do you need to amend the amendment for clarification? I definitely think the legislature gets first crack at it but I am not sure what process is necessary a bill or amendment to clarify an amendment. If it’s only a bill then you could to limited extent be modify the Constitution whenever the legislature changes.
If the legislature does nothing then who gets to decide the meaning of “Jurisdiction”. I don’t believe the courts should do anything that would be creating policy. The definition of jurisdiction isn’t in the amendment. They have nothing to base a decision.
Absent legislative action then I guess the executive branch gets to define the word and citizenship status is just an executive order. And if your born 2 min before a GOP POTUS leaves you are a non-citizen for life and if your born minutes later your a citizen for life. Legislative or Executive Action each are more Democratic when bills are passed that lack clarity on meaning.
But I do think in most situations you can write legislation that solves 90-95% of cases in footnotes to legislation. A lot of legislation is written very poorly.
Courts are the entities that our system designated to resolve legal ambiguities. Largely for reasons of expediency. Court interpretations of statutes or the constitution can be overridden by the legislature or by amendment but, in the moment, we need someone to decide.
These questions come up in the context of pending cases. Take the example of Wickard below. Whether he was in violation of federal law and must pay a penalty turned on whether his growing wheat was "interstate commerce." If judges are not empowered to answer this question, what does this case look like? Is it put on hold until Congress passes a law? The constitution is amended? Can anyone get their federal prosecution deferred by finding an ambiguity (according to who?) that would require a statutory or constitutional amendment to clarify?
I don’t believe it is clear at all that the courts have the ability to make law on ambiguous texts. In fact courts have recognized this as vague laws are generally not considered constitutional such as the Logan Act.
Historically they have thrown out convictions based on vague laws. In the case of a vague amendment it would seem the power to me would go to the most Democratic branch of government for clarification which would be congress followed by the Executive if Congress does nothing. But yes in this case it would seem to be a sort of constitutional crisis on who has the power.
In the case of the 14th I think they need to punt the case and make it an executive decision otherwise they are overstepping their authority. If the administration violates something that is clear then the SC can claim authority.
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The jury of one's peers. You can't trace the border of the Mandelbrot set, but you can pick a specific point and, with arbitrarily high probability, decide whether it belongs to it or not.
The jury of one’s peers in our system does not decide the rules. The judge gives juries instructions on the rules. And I don’t believe the judge either gets to “make up the rules” or atleast they shouldn’t. The rules come from the legislator. The question is how interpretive do judges get to be on the “rules” and who actually gets to be the rule maker.
The jury makes deterministic decisions on the the evidence in the case and whether the “rules” given to them were broken. When juries make up the “rules” we call that jury nullification which happens but I am not sure we consider that allowed.
It varies for different definitions of "we", "that", and "allowed".
Perhaps the strongest case for "not allowed" is that juries are given explicit contrary instructions. Perhaps the strongest case for "allowed" is that there's very few other good reasons to conscript a bunch of random unqualified jackasses off the street to make judgement calls about a trial when there's already a highly trained person, literally titled "judge", right there. The "of their peers" bit isn't added to "jury" because legal types hate concision, it's because that part is critical to nullification protecting against laws that seem good to upper class judges but not to the class of people affected.
(Of course, the strongest case for "shouldn't be allowed" is that often upper class people are just more correct about what's good. E.g. it's much harder to protect unpopular rights if anyone criminally retaliating against their exercise might get let off by a jury nullifying the crime, or at least might be impossible to prosecute in the face of hung juries with some members nullifying the crime.)
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But I don't have twelve peers. Guess that means I'm the law!
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