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naraburns  nihil supernum  1yr ago (text post)   3298 thread views

Small-Scale Question Sunday for April 2, 2023

Do you have a dumb question that you're kind of embarrassed to ask in the main thread? Is there something you're just not sure about?

This is your opportunity to ask questions. No question too simple or too silly.

Culture war topics are accepted, and proposals for a better intro post are appreciated.

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Thanks, I appreciate the links. But I'm left confused because it doesn't seem like any of the links about advisory opinions explain why they aren't allowed. That is, even if you maintain separation-of-powers, why couldn't you let the courts rule on the meaning/impact of a law, but still allow, say, a legislative body to rewrite the laws with the rewritten one taken precedence?

Consider this law review note from 1924. With specific reference to Constitutional questions, the author writes:

The stuff of these contests are facts, and judgment upon facts. Every tendency to deal with them abstractedly, to formulate them in terms of sterile legal questions, is bound to result in sterile conclusions unrelated to actualities. The reports are strewn with wrecks of legislation considered in vacuo and torn out of the context of life which evoked the legislation and alone made it intelligible. These are commonplaces. But they are the heart of the matter of American constitutional law. A failure scrupulously and persistently to observe these commonplaces jeopardizes the traditional American constitutional system more than all the loose talk about "usurpation."

...

The Supreme Court is not a House of Lords with revisory power over legislation, although conservative scholars have suggested that the Supreme Court frankly assume the function implicit in some of its decisions. As part of the ritual of traditional theory, the Supreme Court professes to defer greatly to the legislature.6 Such deference is not merely a gesture of courtesy. It is the formulation of a basic truth in the distribution of governmental power.

...

It must be remembered that advisory opinions are not merely advisory opinions. They are ghosts that slay.

In other words--you're not wrong! It's just that decades and centuries of accumulated legal tradition is stacked against you. Consequently the American legal system, at least, is likely to respond to your question with an invitation--"okay, but since you're the one proposing the change, the burden of persuasion is on you." If you can convince the legislature of your state (assuming you are American) to widely accept advisory opinions, they can do so! At the federal level, however, it would require a constitutional amendment to abolish the "cases and controversies" requirement.

Makes sense, thanks.

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