Flashback XIX
2005.03.14 20:05

#It's high time
It is the best thing for us all to argue, dispute, and try to make a common sense in a common ground. Our differences might be much smaller than we've previously thought.
#It's true
Think globally act localy.- Everything you do you think connects to the rest of the world.
( I am not the one who invented this phrase. From a company's catchy.)
#Constitutional Monarchy or Presidency
I think that the countries that have had a monarchy on its own cannot elect President. The reason is simply enough. Because Head of State already exists, which is King or Emperor. So in its system Premier is elected usually from majority party, sometimes from a coalition party. In case of countries that has no monarchy, they have to elect the Head of State at each election so that the President become the Head of State. The distinction is not very difficult...whether they have monarchy or not. I don't know its exceptions as long as I know.
But it doesn't have monarchy at the same time. PM and President sometimes coexist, since President is a head of state, he can name premier.
#I Agree with You.
I think you grasp the role of judiciary well. As for making difference between fully developed foetus and less developed one, I think their decision reflects reality well.
#Unseen Law
When judges have to decide whether it's unlawful or not, they have to decide just judging from their conscience, not from 'written law'. I mean they have to decide from 'unseen law'. Their conscience includes whether it's morally good, generally acceptable and finally comes whether it's according to the 'written' law. When judges think it is morally good and generally acceptable but still has got some inconsistency in harmony with the constitution or any written law, they have solemn right to put priority to their decision based on their morality. That's nothing but their job.-I mean law books play just a reference role on their decisions. Judges are not a servant of law but a master of law. Judges who forgot this role are no more than canary that forgot to sing, people who forgot to smile. Since any law derives from our morality, conscience in the first place.
Next we think about the cases amendment in the constitution is needed. -In any country that has a written constitution, its constitution has to be a realisation of our morality, conscience. Therefore the constitution has to change as time goes by according to changes of our morality at that times. It's needless to say that legislators play a decisive role on this matter. Again written law including the constitution is an interim terms. We all have to try to amend as it ought to reflect our reality. But in reality, it's not so easy to amend the constitution and related rulings. In this case judges play a desicive role through 'interpretation' of law. Again judges have to interpret law according to their morality, conscience, how majority people might think. Obviously 'written' law cannot tell everything to them.
The same lawsuit can be examined three times utmost. Not only in higher court but also in lower court, in each proceeding, judges have to make a decision according to their conscience. Of course sometimes at a higher court, their decision might be overturned. In this case too their decision has left as a precedent and somebody in the future refers to the example. It is not meaningless. In general the highest court( the Supreme Court) is inclined to reflect conservative view of the society. In intermediate level oftentimes we can see epoch-making decisions. In this sense too 1973 the Supreme Court decision known as Roe v Wade was remarkable and realistic especially in that they admit deference in value of life during the formation of foetus.
#Division of Power
It was around 1900 when Russian prince visited Japan and became a victim of attempted murder by Japanese villan. Japanese government besides with Russian government insisted that he deserve capital punishment. According to existing law at the time, in the case of attempted killing of royal family, capital punishment was applied. But in this case, Russian prince IS a royal family of Russia, not Japan. So he was sentenced imprisonment instead of capital punishment. This case is referred to as an example the judiciary kept its independence.
Considering Madison v Murbury conflict, President John Adams appointed Murbury just before finishing his term. But next president Thomas Jefferson didn't like Murbury's nomination. It occurred to Jefferson to make use of Marshall to let go of Murbury. It was the President's decision over 1789 the Judiciary Act.
But superficially, people thought it was Marshall, head of the Judiciary to overthrow the legislature's ruling, 1789 the Judiciary Act to be judicial power's supremacy over legislature's ruling.
Originally 'division of power' was very ambiguous. Through long conflict among three powers within, we should take it that 'division of power' has been formed gradually.
#Similarity?
I was unable to see how the Hamilton-Burr duel case relates to the Madison v Marbury or the Roe v Wade case or at large, to excessive judicial activism, corporate oligarchy. Will you give me a hint?
Thank you very much indeed. I'm looking forward to your next JE.