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Answered 2008-12-17 20:49:36

Legislating from the bench is another way of describing when a court overreaches their Article III (...in the Constitution, Separation of Powers...) authority and creates law. The court's job is to interpret the Constitution and apply law (either from Congress, the Constitution, or common law) to the facts of the case at hand. If Congress passes a law that violates a Constitutional right, it is the Court's job to overturn the law as soon as it becomes a relevant case or controversy before them. In other words, the Court may not overturn an unconstitutional law until it is made an issue before them (somebody suing as a result of the law, etc.) If Congress passes a law that does not violate the Constitution, the Court has no right to overturn the law, even if they are against the law itself: their only job in that instance is to take the law and apply it to the present issue. Sometimes however, Courts will impose their own opinions and beliefs onto the law, rather than simply determining what was meant by the law. In these cases, the Court is said to be "legislating from the bench." Sometimes this is called acting as a super-legislature. Courts determined they had a right to "Judicial Review" in a case called Marbury v. Madison, and since then, the level of this review (referred to as Judicial Activism when the Court is being too aggressive, and Judicial Restraint when they are being too passive,) has been constantly criticized by whomever is being negatively impacted by a particular decision. The Constitution is the ultimate law. No laws are able to violate this document. After the Constitution is Federal Law, created by Congress. No State laws may violate Federal Laws, which in turn can't violate the Constitution. Some relevant cases on this issue may be: Marbury v. Madison, Brown v. Board of Education (I and II), Dred Scott, Roe v. Wade, McCulloch v. Maryland, Lochner v. New York, and Korematsu v. United States. Also: searches on "Judicial Activisim," "Judicial Restraint," and "Separation of Powers," may all yield helpful information!

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