published: Wednesday, November 14, 2012
Purpose needs to be addressed
The purpose of government is to solve problems for its citizenry. Not to enshrine a particular ideology nor to advance the interests of a particular group. The preamble to the Constitution set it out most clearly. Establish justice, insure domestic tranquility, provide for the common defense, and promote the general welfare. To bring the nation to near chaos to protect the financial position of a particular class is in conflict with the purposes for which the nation was created.
The purpose of the courts is to establish justice. Courts function to resolve disputes, to solve problems. To provide answers when there is conflict, to create remedies.
Our laws have followed the English common law from our beginnings. The earliest of our court decision have cited the rulings of English courts as the basis for their decisions. In Florida, the common law of England as it existed on July 4, 1776 has been adopted by statute, Fla. Stat 2.01, in Nov. 1829.
The common law of England was a judge made law. For almost a thousand years, English judges would fashion a remedy for each wrong that was brought to their attention. Over the years these remedies became known as the common law writs, and covered the law like a tapestry of solutions for social problems, everything from land owners rights to resolving responsibility for battery and brawls.
These decisions, unless contradicted by statute, remain the law of Florida as well as the bedrock of our federal system. The English judges, for a thousand years have been activist judges, and that tradition has continued in America, following English president, and modifying it as necessary to meet modern problems, to shape the law to deal with contemporary problems. If you find this surprising read Marberry vs. Madison, where the court asserted a power not found in statute to solve a problem. Or MacPherson vs. Buick Motor Co., where the court modified the law of negligence to reach an appropriate solution. No law books? You can Google these decisions. Judicial activism is what judges do, it is why they sit on the courts, it is their original primary function. To view them otherwise, to see them merely as rubber stamps of the current legislature is to misunderstand the meaning of the word, Justice.
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