Brian Pfleuger
Moderator Emeritus
Most court law is based on precedent. Overturning precedent is basically "re-interpreting" the law.
That's true, and I have less problem with that sort of thing. I don't *always* consider that to be "legislating from the bench". To me, the most egregious and cowardly thing, the true definition, is when a judge simply makes up some new right or regulation that simply is not there.
For example, "Congress shall make no law establishing a state religion.", suddenly became "A school may not hang the ten commandments." What?! How is a school the same as congress? Incorporated against the states? Fine. A school is STILL not a state legislature either. Original meaning "shall make no law". It doesn't say will not hang the ten commandments, or the muslim, or hindu or buddhist equivalent thereof, or offer prayers before sessions. THAT is legislating from the bench.
In other words, reinterpreting existing law is one thing, picking crap out of thin air and claiming it's some sort of right or regulation that was always there is entirely another.