Each method is concerned with they understand the “legislative intent” though phrase differently. Each is trying to enforce a decisions that they think is legitimately attributable to the legislature. The in Relation to Congress Judge’s Role Independent check & balance Congress – Partner collaborate with Congress to further the public good – Faithful agent follow Congress as its faithful agent – is a “I believe banning strollers bad idea” independent partnership if it furthers the public good subordinate if the legislature gave the directive that judges decide what in marginal cases “vehicle” means Federalist 78 combines all three The essay is a defense of what would become Article III, Section I. Independent: checking the limitations of the CNSTN so that the legislature does not abuse its power, deterring Congress from passing unjust laws by mitigating their effects. Tenure and salary protection to ensure degree of independence. Partner: Not checking the power of Congress to pass the law directly but mitigating the effects of existing laws for the public good. Relies on assumption that judges can discern what is an unjust or partial law. Faithful agent: no active resolution whatsoever. No force or will. (The LSD Case)(7th Cir. 1990) Marshall Q: Does weight of the carrier (blotting paper) factor in the weights listed in the statute, which trigger statutory minimum sentencing? Held: Yes, because (1) Against using the weight of pure LSD only or must have some “Substance mixture” meaning; “detectable is the opposite of amount” “pure”; structural argument (PCP provision would have surplus if or “mixture substance” meant pure); Congress intended that not be converted into an “mixture” equivalent amount of pure LSD (2) For weight of LSD plus paper as a or “mixture substance” Ordinary meaning of and combined with “substance” “mixture” specialized usage in chemistry, colloquial meaning, LH, precedent “Odd results may occur” assumes more of an independent or partner role Dissenting, Posner The minima would be triggered by one dose in a glass of OJ but not by one dose in an empty glass Disproportionate to other, more serious drugs. Acknowledges that and would have no referent “substance mixture” under his analysis Independent what if anything can we judges “Well, do about this mess?” Moderating an unjust law Partner
Each method is concerned with “legislative intent” though they understand the phrase differently. Each is trying to enforce a decisions that they think is legitimately attributable to the legislature. The Judge’s Role in Relation to Congress Independent – check & balance Congress Partner – collaborate with Congress to further the public good Faithful agent – follow Congress as its faithful agent “I believe banning strollers is a bad idea” independent partnership if it furthers the public good subordinate if the legislature gave the directive that judges decide what “vehicle” means in marginal cases Federalist 78 combines all three The essay is a defense of what would become Article III, Section I. Independent: checking the limitations of the CNSTN so that the legislature does not abuse its power, deterring Congress from passing unjust laws by mitigating their effects. Tenure and salary protection to ensure degree of independence. Partner: Not checking the power of Congress to pass the law directly but mitigating the effects of existing laws for the public good. Relies on assumption that judges can discern what is an unjust or partial law. Faithful agent: no active resolution whatsoever. No force or will. Marshall (The LSD Case)(7th Cir. 1990) Q: Does weight of the carrier (blotting paper) factor in the weights listed in the statute, which trigger statutory minimum sentencing? Held: Yes, because (1) Against using the weight of pure LSD only “Substance or mixture” must have some meaning; “detectable amount” is the opposite of “pure”; structural argument (PCP provision would have surplus if “mixture or substance” meant pure); Congress intended that “mixture” not be converted into an equivalent amount of pure LSD (2) For weight of LSD plus paper as a “mixture or substance” Ordinary meaning of “substance” and “mixture” combined with specialized usage in chemistry, colloquial meaning, LH, precedent “Odd results may occur” Dissenting, Posner assumes more of an independent or partner role The minima would be triggered by one dose in a glass of OJ but not by one dose in an empty glass Disproportionate to other, more serious drugs. Acknowledges that “substance and mixture” would have no referent under his analysis Independent “Well, what if anything can we judges do about this mess?” Moderating an unjust law Partner