The Secret Behind Judges ‘Making Law’ (March 22, 2017)
Judges are only supposed to interpret and apply the law, so why does it seem that judges are increasingly making the law? A case in Knoxville is demonstrative.
The court is being asked to “interpret” a statute that expressly refers to a husband and wife marital relationship so that it would now apply to a marriage between two women. When that law was enacted, the Legislature never intended it to apply to two women. But if the court “interprets” the law contrary to the intent of the Legislature or “interprets” it to apply to situations that the law was never intended to cover, then the court will have actually made a new law.
Now you know how judges go about making law—by “interpreting” existing laws to do things and apply to things our real lawmakers never intended.
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