Woman arrested for videotaping police...

[Mysturji]

OK, the story apparently happened, but as I said, it's bullshit:

Videotaping a police officer in public view is perfectly legal in New York state -- and the woman was in her own front yard.

I hope she sues.

[Robert_S]

OK, the story apparently happened, but as I said, it's bullshit:

Videotaping a police officer in public view is perfectly legal in New York state -- and the woman was in her own front yard.

I hope she sues.

I hope the cop ends up working at McDonalds.

[Seth]

OK, the story apparently happened, but as I said, it's bullshit:

Videotaping a police officer in public view is perfectly legal in New York state -- and the woman was in her own front yard.

I hope she sues.

I hope the cop ends up working at McDonalds.

She'll sue, and the cop will claim "qualified immunity" because the courts have not announced a "bright line" ruling explicitly allowing videotaping of the police, so he must be excused liability because he's too fucking ignorant of the Constitution to understand that he's a public servant who works for us and is subject to our unlimited scrutiny of his actions while on duty.

And he'll win, if recent cases are any indication.

[Pappa]

She'll sue, and the cop will claim "qualified immunity" because the courts have not announced a "bright line" ruling explicitly allowing videotaping of the police, so he must be excused liability because he's too fucking ignorant of the Constitution to understand that he's a public servant who works for us and is subject to our unlimited scrutiny of his actions while on duty.

And he'll win, if recent cases are any indication.

And when the shoe is on the other foot, ignorance of the law is never a valid defence.

[Cormac]

OK, the story apparently happened, but as I said, it's bullshit:

Videotaping a police officer in public view is perfectly legal in New York state -- and the woman was in her own front yard.

I hope she sues.

I hope the cop ends up working at McDonalds.

She'll sue, and the cop will claim "qualified immunity" because the courts have not announced a "bright line" ruling explicitly allowing videotaping of the police, so he must be excused liability because he's too fucking ignorant of the Constitution to understand that he's a public servant who works for us and is subject to our unlimited scrutiny of his actions while on duty.

And he'll win, if recent cases are any indication.

Are judges making anti-constitutional decisions like this because the judiciary is so politically exposed?

[Seth]

OK, the story apparently happened, but as I said, it's bullshit:

Videotaping a police officer in public view is perfectly legal in New York state -- and the woman was in her own front yard.

I hope she sues.

I hope the cop ends up working at McDonalds.

She'll sue, and the cop will claim "qualified immunity" because the courts have not announced a "bright line" ruling explicitly allowing videotaping of the police, so he must be excused liability because he's too fucking ignorant of the Constitution to understand that he's a public servant who works for us and is subject to our unlimited scrutiny of his actions while on duty.

And he'll win, if recent cases are any indication.

Are judges making anti-constitutional decisions like this because the judiciary is so politically exposed?

Lower federal courts (and all others) are generally cowards when it comes to upholding the Constitution if there is case law pointing the other way, and courts are generally receptive to the needs of government unless it's egregiously violating people's rights. The SCOTUS hasn't had an opportunity to hear such a case either.

But the REAL cowards are the various state legislatures that all too frequently not only do not restrain the police but actually side with the police against the citizens. All it takes is a bill making it expressly lawful to videotape and audiotape the police while they are on duty to solve the problem, but states like New Jersey and other Eastern states where the police can do no wrong in the eyes of the legislatures, getting such a bill passed is next to impossible, in part due to powerful police unions.

[Cormac]

Lower federal courts (and all others) are generally cowards when it comes to upholding the Constitution if there is case law pointing the other way, and courts are generally receptive to the needs of government unless it's egregiously violating people's rights. The SCOTUS hasn't had an opportunity to hear such a case either.

But the REAL cowards are the various state legislatures that all too frequently not only do not restrain the police but actually side with the police against the citizens. All it takes is a bill making it expressly lawful to videotape and audiotape the police while they are on duty to solve the problem, but states like New Jersey and other Eastern states where the police can do no wrong in the eyes of the legislatures, getting such a bill passed is next to impossible, in part due to powerful police unions.

I disagree that the legislatures are more cowardly.

The primary duty of the lower courts is to uphold the constitution, because the constitution is the source of the entire edifice of law that the courts have to interpret and apply.

Furthermore, a judge must be expert in the law, and the interpretation and application of the law. Politicians are not experts in the area. Neither, necessarily, are their advisors. Legislators will therefore create unconstitutional laws with regularity. And therefore, we come to a key function of the separation of powers. Laws are interpreted according, in the first instance, to how they relate to the constitution. Where there is a conflict - the constitution must win.

Where courts avoid this responsibility, precedents are created that might contradict the constitution. In turn, this gives courts a precedent to refer to, which will create a widening cycle of damage to the constitution. The only thing that might mitigate the damage is where an individual case gets escalated to the Supreme Courts for adjudication. The problem then is what proportion of cases get to the Supreme Court. It seems to me that very few cases get there, which implies that there is an ongoing undermining of the constitution.

Here in Ireland, we have a process to check the constitutionality of new laws. The President (using one of the few Presidential powers) can refer new laws to the Supreme Court, where they'll be declared constitutional, or unconstitutional. Is there a similar process in the US.

[Warren Dew]

She'll sue, and the cop will claim "qualified immunity" because the courts have not announced a "bright line" ruling explicitly allowing videotaping of the police, so he must be excused liability because he's too fucking ignorant of the Constitution to understand that he's a public servant who works for us and is subject to our unlimited scrutiny of his actions while on duty.

And he'll win, if recent cases are any indication.

That's not the whole picture, though. The policeman will likely be excused from the case based on qualified immunity, yes, but qualified immunity does not apply to the government as a whole. If she's smart, she'll sue Rochester as well as the policeman, and the case against the city will proceed to a jury trial. If she gets a big enough settlement, they'll fire the policeman, or maybe even whoever set the policy.

The primary duty of the lower courts is to uphold the constitution, because the constitution is the source of the entire edifice of law that the courts have to interpret and apply.

Only a tiny fraction of lower court cases raise constitutional issues. Yes, courts should be aware of the constitution when the interpret the law, but so should legislators that are writing that law. The U.S. House of Representatives has recently taken a step in the right direction by passing a procedure requiring all laws to cite their constitutional justification, for example.

[Tyrannical]

Here in Ireland, we have a process to check the constitutionality of new laws. The President (using one of the few Presidential powers) can refer new laws to the Supreme Court, where they'll be declared constitutional, or unconstitutional. Is there a similar process in the US.

In the US originally, the President vetoed laws he thought were unconstitutional. It was only a few years later that the Supreme Court decided that it had the power to rule on a law's legality, or that the President could veto laws he just didn't like.

In the US, a judge ruling on a law before being enacted is forbidden. Seriously by the constitution forbidden. I've never understood quite why that is, but the US Supreme Court does not give official legal opinions on purposed laws. Someone with legal standing must first sue to have a law's constitutionality looked at. Some laws such as the War Powers Act may indeed be unconstitutional, but no one with standing is willing to challenge it.

[Cormac]

She'll sue, and the cop will claim "qualified immunity" because the courts have not announced a "bright line" ruling explicitly allowing videotaping of the police, so he must be excused liability because he's too fucking ignorant of the Constitution to understand that he's a public servant who works for us and is subject to our unlimited scrutiny of his actions while on duty.

And he'll win, if recent cases are any indication.

That's not the whole picture, though. The policeman will likely be excused from the case based on qualified immunity, yes, but qualified immunity does not apply to the government as a whole. If she's smart, she'll sue Rochester as well as the policeman, and the case against the city will proceed to a jury trial. If she gets a big enough settlement, they'll fire the policeman, or maybe even whoever set the policy.

The primary duty of the lower courts is to uphold the constitution, because the constitution is the source of the entire edifice of law that the courts have to interpret and apply.

Only a tiny fraction of lower court cases raise constitutional issues. Yes, courts should be aware of the constitution when the interpret the law, but so should legislators that are writing that law. The U.S. House of Representatives has recently taken a step in the right direction by passing a procedure requiring all laws to cite their constitutional justification, for example.

ALL cases involve the constitution, because ALL laws derive from the constitution. There are two reasons why constitutional issues might not be raised during a particular case:

1. The law is well setlled, and has clear constitutional parameters long set by case law, and the case doesn't actually involve any challenge to that position.
2. The lawyers are as thick as shit - not uncommon - and they don't notice that they have a constitutional argument - and I'm speaking as a lawyer.

Legislators should - but remember that legislators are not always legally trained, and therefore won't see the subtle interplay of law and constitution, or even potential conflict of laws that may arise. Neither are their advisors going to be particularly expert - often they'll be people with a law degree, as opposed to an actual professional legal qualification. Of course, then you have political motivation, and determined anti-constitutionalist behaviour by legislators (i.e. the Creationist movement). This is the reality, and therefore, while this prevails, flawed laws will be passed.

It is a good thing that there is a Constitutional Justification procedure now in place. It forces them to take proper cite a constitutional justification - this makes it more difficult to fudge matters and pass bad laws.

[Cormac]

Here in Ireland, we have a process to check the constitutionality of new laws. The President (using one of the few Presidential powers) can refer new laws to the Supreme Court, where they'll be declared constitutional, or unconstitutional. Is there a similar process in the US.

In the US originally, the President vetoed laws he thought were unconstitutional. It was only a few years later that the Supreme Court decided that it had the power to rule on a law's legality, or that the President could veto laws he just didn't like.

In the US, a judge ruling on a law before being enacted is forbidden. Seriously by the constitution forbidden. I've never understood quite why that is, but the US Supreme Court does not give official legal opinions on purposed laws. Someone with legal standing must first sue to have a law's constitutionality looked at. Some laws such as the War Powers Act may indeed be unconstitutional, but no one with standing is willing to challenge it.

Judges don't opine on laws before they're enacted, because that would be to breach the separation of powers. They'd be acting as legislators if they did.

In Ireland, not every law gets sent by the President, just those that are likely to get constitutionally challenged. Other than that, it is for private citizens to take constitutional challenges. But there is a mechanism. Very few laws in Ireland get away without challenge, and anything that impinges upon the constitution will kick up a fair amount of challenge.

A law such as the War Powers Act could be challenged in Ireland - by either method. In fact, I'd be fairly certain it would be. (Although we've had emergency powers in place in Ireland almost since the foundation of our state - to deal with dissidents like the IRA, INLA, etc.). But passing such legislation today would be difficult.

[Tyrannical]

Judges don't opine on laws before they're enacted, because that would be to breach the separation of powers. They'd be acting as legislators if they did.

That's probably the theory behind it, though it certainly hasn't stopped judges these days from pretending that they are the legislative, executive, and judicial branch all rolled into one.

[Coito ergo sum]

Here in Ireland, we have a process to check the constitutionality of new laws. The President (using one of the few Presidential powers) can refer new laws to the Supreme Court, where they'll be declared constitutional, or unconstitutional. Is there a similar process in the US.

In the US originally, the President vetoed laws he thought were unconstitutional. It was only a few years later that the Supreme Court decided that it had the power to rule on a law's legality, or that the President could veto laws he just didn't like.

Each branch of government is separate but equal. The Congress has the power to determine whether it thinks the laws it makes are constitutional or unconstitutional, as does the President. The President enforces the laws, but he has the primary duty to abide by the Constitution - he is therefore empowered necessarily to not enforce unconstitutional laws. I.e. if Congress acted unconstitutionally in enacting a law over the President's veto prohibiting all speech not pre-approved by the government, then the President could refuse to enforce it. The courts did not have an express constitutional provision giving them the power to strike down laws, but it was found to logically follow from its interpret and apply the law and the constitution. If a law is found to be outside the bounds of the constitution, the court has the implicit power to say so.

[

In the US, a judge ruling on a law before being enacted is forbidden.

Yes, because there is neither a case nor controversy.

[

Seriously by the constitution forbidden. I've never understood quite why that is,

Because it is too speculative without there being some sort of case and controversy. And, if a law is enacted that doesn't actually get enforced it's a waste of time to review it. The Court would also wind up being inundated with requests for advisory opinions and would become part of the political process as a result. Democrats not liking a Republican proposal would seek advisory opinions and vice versa. And, there would be no time for actual cases to be heard. Already hardly any cases get accepted for review - there would be none if advisory opinions were allowed.

[

but the US Supreme Court does not give official legal opinions on purposed laws. Someone with legal standing must first sue to have a law's constitutionality looked at. Some laws such as the War Powers Act may indeed be unconstitutional, but no one with standing is willing to challenge it.

There is a big question about who, if anyone, besides the President would have power to challenge it, and whether the SCOTUS would even render a decision on it. It's a political question, and the Court might abstain and let the two coequal branches work it out for themselves.

[Cormac]

Judges don't opine on laws before they're enacted, because that would be to breach the separation of powers. They'd be acting as legislators if they did.

That's probably the theory behind it, though it certainly hasn't stopped judges these days from pretending that they are the legislative, executive, and judicial branch all rolled into one.

That was an answer to where you said this:

In the US, a judge ruling on a law before being enacted is forbidden. Seriously by the constitution forbidden. I've never understood quite why that is, but the US Supreme Court does not give official legal opinions on purposed laws

There is such a thing a "judge-made" law. It is called The Common Law, and it comprised of the Corpus of judicial precedent, established and adjusted over the centuries.

[Cormac]

but the US Supreme Court does not give official legal opinions on purposed laws. Someone with legal standing must first sue to have a law's constitutionality looked at. Some laws such as the War Powers Act may indeed be unconstitutional, but no one with standing is willing to challenge it.

There is a big question about who, if anyone, besides the President would have power to challenge it, and whether the SCOTUS would even render a decision on it. It's a political question, and the Court might abstain and let the two coequal branches work it out for themselves.

In Common Law jurisdictions, appeals to the Appelate Courts are regularly based on constitutional issues. Sometimes these arise from clauses of laws that turn out to have doubtful constitutional compatibility.

Any citizen, finding themselves on the wrong side of a question like this can turn to the courts for relief. Lower courts probably won't have jurisdiction to deal with constitutional issues - so if they find there is a reasonable question to be asked, the question will be kicked up to a superior court for a decision.

Having "legal standing" really means that you must be personally impacted by the issue to hand, and there must be a serious and substantial question. Either that, or you must have standing by virtue of legislation or constitution, (like the President).