Constitution? We don't got to obey no stinking Constitution.
Wonder how they continue to get away with it?
California Diversion Programs (7)
14th amendment Due Process and Equal Protection?
As if 'Therapeutic Jurisprudence' weren't a blatant enough piece of Statism,
It wouldn't do to have our Courts pissing off our Legislators by actually basing their rulings on the highest law of the land and upsetting the infinite multiverses of carve outs those Legislators enacted which either openly or tacitly promised 'Social Justice'.
wiki;
Constitutional Avoidance
From Wikipedia, the free encyclopedia
In United States
constitutional law, the doctrine of constitutional
avoidance dictates that a federal court should
refuse to rule on a constitutional issue if the case can be resolved on a
nonconstitutional basis. When a federal court is faced with a choice of ruling
on astatutory, regulatory or
constitutional basis, the Supreme Court has
instructed the lower court to decide the federal constitutional issue only as a
last resort: "The Court will not pass upon a constitutional question
although properly presented by the record, if there is also present some other
ground upon which the case may be disposed of." Ashwander v. Tennessee Valley Auth., 297
U.S. 288, 347 (1936) (Brandeis, J., concurring).
The avoidance doctrine flows from
the canon of judicial self-restraint, and is intertwined with the debate over
the proper scope of federal judicial review and the allocation of power among
the three branches of the federal government and the states. It is also
premised on the "delicacy" and "finality" of judicial
review of legislation for constitutionality, concerns regarding the credibility
of the federal courts, and the "paramount importance of constitutional
adjudication in our system."[1] These
elements demonstrate a significant overlap between the avoidance doctrine and
other jurisdictional or justiciability barriers. The avoidance doctrine
reflects such other justiciability doctrines as standing and ripeness, and
permeates jurisdictional doctrines such as Pullman abstention and the adequate
and independent state ground doctrine.
Justice
Louis D. Brandeis
The avoidance of unnecessary
constitutional decisions has been urged as early as 1833 by Chief Justice John Marshall in Ex
parte Randolph, 20 F. Cas. 242, 254 (C.C.D. Va. 1833) (No. 11,558).
Although Brandeis's concurring
opinion in Ashwander is the primary cite for the modern formulation
of the avoidance doctrine, Chief Justice Marshall had cautioned previously that
no questions of "greater delicacy" can be presented to the federal
judiciary than those involving a constitutional challenge to a legislative act.[2] He
instructed that if such questions "become indispensably necessary to the
case," they must be decided, but "if the case may be determined on other
points, a just respect for the legislature requires, that the obligation of its
laws should not be unnecessarily and wantonly assailed." In Ex
parte Randolph, the Chief Justice, while riding circuit, considered
a challenge to a congressional act which provided that Treasury agents could
issue warrants for military
officers charged with disbursing public funds who failed to pay
and settle their accounts at the Treasury
Department. The court concluded that the terms of the act did not
apply to an officer temporarily acting as the ship's purser due to the death of
the regularly commissioned purser and granted his petition for habeas corpus.[3] Justice
Louis D. Brandeis's concurring opinion in Ashwander provides the
most significant formulation of the avoidance doctrine, even though the
Brandeis formulation had no effect on the outcome of the case because the Justice
concurred in the plurality
opinion, and the plurality considered and decided the properly
presented constitutional issues. In Ashwander, Justice Brandeis
identified seven components of the avoidance doctrine.[4]
Justice Stevens has called the
Ashwander concurrence "one of the most respected opinions ever written by
a Member of this Court."[5]Brandeis,
a leader of the progressive movement prior to his judicial appointment offered
a broad framing of the avoidance doctrine. The doctrine was adopted heartily by
Felix Frankfurter, who was attacked as too "liberal" while a Harvard
scholar and an active supporter of New Deal programs.[6] This
tool of judicial restraint espoused by "liberals" was in large part
inspired by the response of Brandeis and Frankfurter to the activist
"conservative" Court of the 1930s, which struck down legislation as
infringing on freedom of contract and other doctrines such as substantive due
process.[7] In
recent years, doctrines of judicial restraint have more often been criticized
when used by "conservative" jurists.[8]
^ Rescue Army v. Municipal Court of
L.A., 331 U.S. 549, 571 (1947) (reciting a non-exhaustive list of grounds
supporting the avoidance doctrine); see also Paul A. Freund (1957).
"Introduction". In Alexander M. Bickel. The
Unpublished Opinions of Mr. Justice Brandeis. University of Chicago Press.
p. xvii. ISBN 978-0226046020. (Judicial
self-restraint is premised on an "awareness of the limits of human
capacity, the fallibility of judgment, the need for diffusion of power and
responsibility, the indispensability of husbanding what powers one has, of
keeping within bounds if action is not to outrun wisdom.").
^ Ex parte Randolph, 20 F. Cas. 242,
254 (C.C.D. Va. 1833) (No. 11,558).
^ Ex parte Randolph, 20 F. Cas. 242
(C.C.D. Va. 1833) (No. 11,558).
^ Ashwander v. Tennessee Valley Auth.,
297 U.S. 298, 346–48 (1936).
^ Delaware v. Van Arsdall, 475 U.S.
673, 693 (1986) (Stevens, J., dissenting).
^ See Helen Shirley Thomas
(1960). Felix Frankfurter: Scholar on the Bench. The Johns
Hopkins University Press. pp. 19–20. ISBN 978-0801806285.; Melvin
I. Urofsky (1991). Felix Frankfurter: Judicial Restraint and Individual
Liberties. Twayne's Twentieth-Century American Biography Series. Twayne
Pub. pp. 20–22. ISBN 978-0805777741.
^ Joseph P. Lash (1975).
"Introduction". From the Diaries of Felix Frankfurter. W. W. Norton
& Co. pp. 57–58. ISBN 978-0393074888.
^ See, e.g., Gerald M. Gallivan
(1985). "Supreme Court Jurisdiction and the Wyoming Constitution: Justice
v. Judicial Restraint". Land and Water Law Review 20:
159.; Steven M. Kahaner (1988). "Separation of Powers and the
Standing Doctrine: The Unwarranted Use of Judicial Restraint".George
Washington Law Review 56: 104.; Christopher A. Crain (1990). "Note, Judicial
Restraint and the Non-Decision in Webster v. Reprod. Health Servs.". Harvard
Journal of Law & Public Policy 13: 263.; see
also Linda Greenhouse (July 22, 1993). "The
Supreme Court: A Sense of Judicial Limits". The New
York Times. p. A1. (referring to the Ginsburg nomination and
noting surprise at a "liberal" jurist espousing techniques of
judicial restraint).
'Progressives' have dropped this on your head.
Are you going to vote for 'Progressive' candidates again?
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