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Choosing between democracy and party, Americans will chose party over democracy

132 points by mrfusion 6y ago

rayiner 6y ago
https://static.cambridge.org/binary/version/id/urn:cambridge.org:id:binary:20200423073226266-0814:S0003055420000052:S0003055420000052_tab1.gif?pub-status=live https://static.cambridge.org/binary/version/id/urn:cambridge... So they have a list of “undemocratic” behaviors, such as biased redistricting. But it doesn’t include using courts to secure laws that one side would be unable to get through the ordinary legislative process. That’s one of the most profoundly undemocratic things about the US. (Not bad, which is debatable, but by definition undemocratic.) So many major policies, from abortion to the role of religion in the public sphere are decided in America by unelected judges, whereas Europe for the most part manages to pass legislation on the same issues through democratic consensus. But social scientists steeped in American liberal ideology don’t even perceive this as anti-Democratic (again, different from good or bad). This popped into my head reading the first paragraph, so I scrolled down to see what they thought were “undemocratic” things. Sure enough.
- drewcoo 6y ago
  So judges. Just judges. Judges deal with things that haven't been specifically legislated. You're saying judges are antidemocratic because we don't vote on their decisions. This applies equally to any individual's choice, then, I suppose.
  - denkmoon 6y ago
    Any individual's choices do not influence the laws of a polity, generally.
  - Tehdasi 6y ago
    Comparing Australia to the US, the difference is that in the US what happens is that the Supreme court rules on a law, and the ruling directs how the government implements the law for the next 50 years. In Australia the High court makes a ruling then legislation is put into the next legislative session to 'fix up' the issue with the existing law. Although this doesn't always happen, it seems to be the most common outcome.
    - smnrchrds 6y ago
      Reminds me of the time a court ruling made hard drugs legal in Ireland. The legislature fixed the law in a matter of hours. https://www.independent.co.uk/news/world/europe/ireland-just-accidentally-legalised-ecstasy-ketamine-and-crystal-meth-10098612.html https://www.independent.co.uk/news/world/europe/ireland-just...
      - rsynnott 6y ago
        That wasn’t on a constitutional issue, though. In 1992, the Irish Supreme Court found that there was a right to abortion where a person was suicidal (at the time abortion was generally illegal in Ireland), on a constitutional basis. The government attempted to amend the constitution by referendum to remove this, but that failed.
      - deleted 6y ago
        [deleted]
    - mnm1 6y ago
      That's how the US system is supposed to work too. You're just pointing out its failure, not some fundamental difference.
    - jbeam 6y ago
      There needs to be a distinction here between SCOTUS rulings on constitutional issues versus rulings based on statute. Many if not most of the decisions that the Supreme Court hands down could be changed by the legislature. These are based on interpreting statute. For example, recently the court unanimously overturned the conviction of two New Jersey officials who were involved in a scandal involving shutting down an interstate bridge for political revenge. The majority opinion, that again was unanimously agreed to, went out of its way to say that their acts were reprehensible. But the statute that was used to charge them didn’t cover their acts. This is something that can be changed by the legislature easily and there’s no issue at all. The issue comes with the constitutional ones. These get the most press and tend to be the ones that are most controversial. But the alternatives aren’t much better. Besides the historic reasons for SCOTUS supremacy in this area starting with Marbury v. Madison, there are legitimate concerns with having the interpretation of your constitution being subject to the whims of the most recently elected body. Of course, this has led to the current nightmare where Supreme Court seats are hotly divisive contests to be won. Changing the makeup of the court is a battlefield and for the life of me I cannot see a way to fix that. Changing the number of justices or setting term limits will be seen as court packing by whichever party attempts it. It might result in open rebellion. Things are very fragile here and we are teetering on the edge.
- mdorazio 6y ago
  Not sure I agree with your assessment of the questions asked. Question 3 is related to if the governor should rule by executive order if the opposing party doesn't cooperate. This is pretty much exactly what you're saying in your second sentence, just with executive orders instead of courts (bypassing the normal law process vs. monopolizing it). Question 4 is then about ignoring unfavorable court rulings, which again is pretty close to the undemocratic things you're referring to.
  - rossdavidh 6y ago
    The executive is at least elected, while the courts are not, even indirectly. More importantly, in recent decades one part has more often obtained what it wanted through the courts, another through executive order. Having them both as examples of undemocratic, would have made the questions more nonpartisan. As written, it seems pretty clearly written from a left-of-center position. If the study questions had been written during FDR's time, when the courts were striking down parts of the New Deal and FDR was expanding the powers of the executive in order to expand the social welfare net, we likely would see different questions used as examples of undemocratic behavior.
    - caf 6y ago
      In recentish times the courts have been striking down parts of Obamacare, gun control and campaign finance legislation too, though.
- JoshTriplett 6y ago
  In general, the judicial branch can't quite make new law, but they can throw out (in whole or in part) or place limitations on an existing law. (There's some nuance to that.) That seems like a relevant distinction to draw, as it's an intentional aspect of the checks and balances between branches of government.
  - umanwizard 6y ago
    This isn’t true. In common-law jurisdictions, making new law is the primary role of appeals courts.
    - wahern 6y ago
      It's definitely not the primary role. It's principally a consequence of stare decisis. And even though stare decisis is the defining characteristic of the common law, in actuality many other jurisdictions apply the principle, including in Europe, just without formalizing it. The promotion of consistency is a nearly universal characteristic of all human legal systems, and stare decisis is consistency reified. [1] In terms of the exercise of de facto law making powers the United States is somewhat of an outlier owing to the fact it was one of the first to explore how to apply the principles of 1) separation of powers and 2) to do so in the context of a Federal system. Also, the concept of Parliamentary Supremacy solidified in England after the American colonial legal system had begun to evolve on its own. So for these reasons it's unsurprising we ended up diverging from England, and that other former British colonies didn't end up with lawmaking powers quite as extensive as in the U.S. Similarly, it's unsurprising that the evolution of European Union legal rules arguably mirror much of what happened in the U.S.--de facto application of stare decisis, de facto judicial review powers of top EU courts, etc. [1] Here's an interesting 1988 law review article that includes an exploration of the legal system of revolutionary France: "Tort Liability in France for the Act of Things: A Study of Judicial Lawmaking", https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=5129&context=lalrev https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?artic... The French so despised the practice of judicial lawmaking that they made it a criminal offense for judges to disambiguate the law, mandating that courts instead refer any legislative ambiguities to the Congress for interpretation. Guess how often that happened. So if you start from the premise that an intrinsic function of the courts is disambiguation, and combine it with the principle of consistent application of the law, guess where you end up. See also "Why Europe Rejected American Judicial Review and Why It May Not Matter", https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2295&context=fss_papers https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?arti...
- clairity 6y ago
  first, the US is a representative democracy, not a direct democracy. we don't vote on every little legal precedent. second, judges and the judicial system are a check on executive and legislative power, not a lawmaking body. please keep partisanship out of such analyses. if your ideas are good, they can stand on their own merits without trying to rally the party faithful (ironic, given the thread title).
  - treeman79 6y ago
    Well said. Founders deeply distrusted democracy. Government in general, which is why system is setup to be so inefficient at change
    - scarmig 6y ago
      The Founders deeply distrusted democracy, but loved big government. That's why they built the ability in for constituent governing bodies to construct and maintain a state apparatus for the totalitarian control of a mass slave population. Moreover, they built into the Constitution the ability for the federal government to assist in the operation of that apparatus.
  - deleted 6y ago
    [deleted]
  - chrisco255 6y ago
    Their point is that judges sometimes rule on cases beyond what the law explicitly states. Gay marriage was one such case. Abortion another. I would argue the Eminent Domain (for private construction, to eliminate blight) ruling from a few years ago was also another example of judges ruling beyond the law. Their rulings create de facto laws or regulations many times beyond the letter of the law. I don't think it's right but whether you agree with the Supreme Court's position is often dependent on your political leaning in that particular case, even if the ruling does go against the letter of the law.
    - rsynnott 6y ago
- rpiguy 6y ago
  They also forgot to mention a huge one - supports suppressing the political speech of your opponents. Both parties are guilty of this, but the Left is outright determined to regulate speech, shut down the sharing of information they consider dangerous, or deem hateful. Also the paper might want to examine the executive branch leaders of each party to see who actually, consistently legislates or attempts to legislate through executive order (hint, it isn't Republicans).
  - mrmario27 6y ago
    The current president has issued more executive orders than the previous... care to elaborate or support your claim?
    - Enginerrrd 6y ago
      Wikipedia says that's not true. And he's really about on track to match his contemporary predecessors. According to the table, he's issued substantially fewer than every president before him until you get has far back as Benjamin Harrison. https://en.m.wikipedia.org/wiki/Executive_order https://en.m.wikipedia.org/wiki/Executive_order
  - _emacsomancer_ 6y ago
    If you think the Dems are the Left....I don't know what to tell you.
- rsynnott 6y ago
  > So many major policies, from abortion to the role of religion in the public sphere are decided in America by unelected judges, whereas Europe for the most part manages to pass legislation on the same issues through democratic consensus. I’m not sure that’s entirety true. It is true that the US tends to act on courts alone more often; that is, it doesn’t bother legislating at all. But a lot of civil rights issues in many European countries originate in the courts; the government acts when it realises the courts are going to do something. This is particularly true of the ECHR.
voidhorse 6y ago
Sure, I'm fairly confident that "Democracy" for many Americans means "my political beliefs" and does not designate an ideal political structure in which the system of government is determined by the populous. In the American context it's become one of those meaningless, overloaded sham words, wrought with personal interpretation and emotion. For the American, anyone who is defending his own political prescriptions is a defender of sacred democracy. I mean, jeez, we do such a poor job at political education in this country that I'm sure a large swath of the population couldn't even articulate ideal principles of a well-structured democracy.
- MisterBastahrd 6y ago
  It's why we're perpetually bewildered when one of the Bush family goes into a foreign country to "liberate" it and find that democracy is not the same thing as fealty to America.
shadykiller 6y ago
Not much different from many countries e.g. India
- nashashmi 6y ago
  Many Muslim countries are also skewed to elect conservative Muslim government. It's not they hate democracy. They just don't trust normal people to make the right decisions.
  - thwarted 6y ago
    Apparently, including themselves. How much of deferring to someone else to make "the right decisions" is looking for someone to blame other than themselves when something goes wrong?
    - nashashmi 6y ago
      It took a while for me to get what you were saying. But it is true. They don't trust themselves. They trust government. Which is the opposite in America. Issue of blame is more of an afterthought, once there is no choice to make. But when things become bad, an open society is sought by people who have something to provide. Those are educated, skilled, thoughtful, serving, and maybe sacrificial and volunteering kind of people. For a society to have more people like this, it needs historical and cultural precursors so to become more "democratic" or open.
  - kevin_thibedeau 6y ago
    It's more like there is a social philosophy that doesn't afford ideas contradicting orthodoxy. Free elections allow extremists to gain popular support because they're all trying to demonstrate they're the "True Scotsman". In slow increments for Turkey's case. Faster for Egypt.
  - smnrchrds 6y ago
    I am not sure if I understand your comment. Are you saying conservative Muslims are not normal people?
vinceguidry 6y ago
Populism has always, from day one, all the way back in Ancient Greece, been a threat to democracy. People don’t really want lofty philosophical ideas. They want the rules most favorable to them. Been true for thousands of years and it’s not going to stop anytime soon. The surprising thing isn’t that rule of law is being threatened. It’s always being threatened. The surprising thing is that it ever evolved at all. And despite the constant threats, it still manages to evolve, one tyrant at a time. CGPGrey has a great pair of videos on pirate social dynamics that everyone should watch. Economic factors, not shared idealism, created the flat hierarchy. Nobody will choose idealism that’s not beneficial to them.
- justinmeiners 6y ago
  > Populism has always, from day one, all the way back in Ancient Greece, been a threat to democracy. In Plato's republic democracy is a result of populism and is seen as one of the lowest forms of government.
  - vinceguidry 6y ago
    A common monarchical canard, argued all over the world, including former colonies. Monarchism set Mexico back a hundred years.
  - nabla9 6y ago
    Direct democracy can be pretty damn horrible and unprincipled. Any modern system has check and balances and the process itself is important. Forcing negotiation, coalitions and making it difficult to change constitution etc. Plato had no idea how democracy can develop.
    - cjameskeller 6y ago
      Aristotle describes this as "Polity": See [this](https://fs.blog/2017/02/aristotles-politics/ https://fs.blog/2017/02/aristotles-politics/) article, and the [Politics, book 4, section XI](http://classics.mit.edu/Aristotle/politics.4.four.html#553 http://classics.mit.edu/Aristotle/politics.4.four.html#553)
JoshTriplett 6y ago
I wonder to what extent there is also a prisoner's dilemma problem here, insofar as defecting makes more sense if you have strong prior knowledge or belief that your opponent will defect. ( https://ncase.me/trust/ https://ncase.me/trust/ provides a great interactive and intuitive understanding of the prisoner's dilemma.) For example, using one of the hypotheticals from the paper, I could imagine multiple reasons for a partisan to "support a redistricting plan that gives them more seats despite a decline in polling": 1) Choosing to intentionally commit anti-democratic behavior, such as to "win at all costs". Someone couldn't justify this (to themselves or others) directly through democratic values, though they could attempt to argue that winning averts some worse outcome. 2) Perceiving unfairness in existing polling (e.g. disenfranchisement, gerrymandering, etc), and choosing an action they perceive as "balancing" similar anti-democratic behavior by the other side, with the justification that the outcome may be closer to democratic. Someone could justify this (to themselves or others) directly through democratic values alone, particularly if they argued that they would prefer the outcome in which neither side commits such anti-democratic behavior. Possibility (2) allows people to self-justify defection from democratic principles more easily, and feel more morally correct in doing so. It's difficult to get back from that situation to one in which everyone follows democratic norms and principles, if cooperating (following those norms and principles) is or is perceived as a losing strategy.
- yazaddaruvala 6y ago
  You have to also take into account Long Term and Short Term thinking. Not only are we playing a Prisoners’ Dilemma but most of the population is thinking about a value function that pays off in the Short Term (it’s definitely true about events outside the population’s expected lifespan, but also is true within a single lifespan). In the Long Term all of our needs are relatively aligned. There are pivotal points in history like the signing of the Magna Carta at knife point, rather than yet another relatively-shallow regime change, that are thinking about the value function in the Long Term. There will one day be an iteration on democracy that solves the Byzantine Generals Problem. Where the “failures of communication” are caused by Short Term thinking.
ryanmarsh 6y ago
Did they ask about democracy vs. a constitutional republic?
Cookingboy 6y ago
Of course, very few people actually like democracy in practice, they just tend to prefer whatever system/government that agrees with them. Imagine you let people from one party (doesn't matter Democrat or Republicans) to anonymously vote on a constitutional amendment that outlaws the opposing party members from participating in the next presidential election, my gut feeling is that amendment would pass the vote overwhelmingly. Either way, democracy is a nice ideology that won't scale in the 21st century anyway, but that's a different discussion for another day...
resfirestar 6y ago
From briefly looking through the results and the survey design, I have some practical concerns with the design of the candidate choice survey part of the study as they relate to the “party over democracy” conclusion, specifically, the fact that there were no "pro-democratic" candidate positions, only "undemocratic" and "generic". This lets the voter faced with a choice between an undemocratic candidate and a candidate who has nothing to say on the "democracy" issues project the undemocratic positions onto the "generic" candidate. This seems especially problematic because anti-electoral fairness positions and rule by executive order, widely used in America by both parties, make up half of the undemocratic positions used. For many Americans these seem to be intractable issues because (1) these abuses are already widespread, and (2) almost no political candidates, aside from more fringe single-issue ones, run on ending them or can be expected to do anything to oppose or end them if perpetrated by their own party. So to me it seems perfectly reasonable to vote for a candidate of who explicitly supports gerrymandering and rule by executive order over a candidate less aligned with you on other policy issues who has nothing to say about them. Chances are, the other guy supports those things too. Am I missing some part of the study that accounts for this?
Jedd 6y ago
"There is nothing which I dread so much as a division of the republic into two great parties, each arranged under its leader, and concerting measures in opposition to each other. This, in my humble apprehension, is to be dreaded as the greatest political evil under our Constitution." -- John Adams, 2nd President of the United States Here in Australia there's a weird combination of moves towards this hugely damaging two-party approach to politics (moves orchestrated I suspect by pop media), and a very real trend away from that. At the last federal election, f.e., we had >25% of people not voting for either of the two major parties - that ratio has been growing steadily, and is hugely reassuring. What's not reassuring is that most people still think in terms of A or B, exhibiting a poverty of expectations, or perhaps just seeking a simple answer to the complexity of administration.
- mehrdadn 6y ago
  And he saw this coming without needing any game theory..
  - nine_k 6y ago
    I'd say that Blaise Pascal founded game theory, with his famous God / no God vs believer / non-believer matrix, at least a century before the American Revolution. I suspect such a style of thinking was not alien to intellectuals of the time, even if not as a formal theory.
- rossdavidh 6y ago
  It should be said that John Adams signed the Alien and Sedition Acts, the Patriot Act of their day except far worse, which were used to imprison a majority of the opposition newspaper editors using those acts' definition of sedition. Not who I would quote as a defender of democracy.
  - thanhhaimai 6y ago
    I'd consider the merits of the idea separately from who said it. An idea should be judged by its merits alone.
neximo64 6y ago
It's the game theory optimal choice. No surprise there.
stakkur 6y ago
But it's well-established that this has always been the case, from almost the beginning. And it's also common in any party-based system.
cletus 6y ago
This is actually what I think is most dangerous in US politics right now. Nixon resigned to avoid an inevitable impeachment. Today? He's stay in office, have impeachment defeated on a straight party-line vote and then declare victory against "fake news". The Senate obstruction of Obama was unprecedented. The subversion of the Justice Department is unprecedented. The White House going months without a press briefing is unprecedented (in modern times). The erosion of public institutions doesn't seem to matter. Nor does the public trust in those institutions. Winning matters. Getting your agenda through no matter what matters. And that's so dangerous. This, by the way, is why mandatory voting (as we have in Australia) is so important and so much better. In the US, the election process itself is politicized. What you have is highly organized efforts aimed at voter suppression because people are allowed not to vote so much so that the GOP had to enter into a 35 year consent decree to prevent voter suppression [1]. What a lot of liberals don't understand (for the record, I include myself in that camp) is how angry the idea of activist judges makes conservatives. In US constitutional law you really have two major schools of thought: the "living document" school and the "literalists". The second group think the constitution says what it says. If you want to change that, there's a process for that (ie a constitutional amendment). The "living document" school thinks the constitution should be viewed through the lens of the times and it asks questions like "what would the Founders have written or meant today?" Broadly speaking, literalists are the conservatives and "living document" types are liberals. Judicial conservatives think there was no constitutional basis for the SCOTUS decision to legalize gay marriage. They feel like "dignity" was another invented right, just like "privacy" was an invented right that legalized abortion in Roe v. Wade. And whether or not you agree with those things in principle, you shouldn't dismiss how strongly many voters feel that legislatures not judges should enact those things. I strongly believe the combination of the SCOTUS gay marriage decision and having a black president while the candidate was HIlary Clinton was the perfect storm that was the only thing that could get Trump elected. But here's this relates to party over democracy: by any measure, Trump is a reprehensible human being. The level of hypocrisy required for religious conservatives to stand behind him is truly astounding. But they do it because we're now in a situation where the ends justifies the means and one of those key ends is packing the courts with young Conservative judges, something that'll have a legacy for decades to come. [1]: https://en.wikipedia.org/wiki/Ballot_Security_Task_Force https://en.wikipedia.org/wiki/Ballot_Security_Task_Force
beervirus 6y ago
If I wanted to read about politics, I’d go to the dumpster fire that is reddit. I come here to read about interesting things.
dang 6y ago
Editorializing titles like this is against the site guidelines. We take submission privileges away from accounts that do it repeatedly, so please don't. https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html

132 points by mrfusion 6y ago

https://static.cambridge.org/binary/version/id/urn:cambridge.org:id:binary:20200423073226266-0814:S0003055420000052:S0003055420000052_tab1.gif?pub-status=live https://static.cambridge.org/binary/version/id/urn:cambridge... So they have a list of “undemocratic” behaviors, such as biased redistricting. But it doesn’t include using courts to secure laws that one side would be unable to get through the ordinary legislative process. That’s one of the most profoundly undemocratic things about the US. (Not bad, which is debatable, but by definition undemocratic.) So many major policies, from abortion to the role of religion in the public sphere are decided in America by unelected judges, whereas Europe for the most part manages to pass legislation on the same issues through democratic consensus. But social scientists steeped in American liberal ideology don’t even perceive this as anti-Democratic (again, different from good or bad). This popped into my head reading the first paragraph, so I scrolled down to see what they thought were “undemocratic” things. Sure enough.

drewcoo 6y ago
So judges. Just judges. Judges deal with things that haven't been specifically legislated. You're saying judges are antidemocratic because we don't vote on their decisions. This applies equally to any individual's choice, then, I suppose.
- denkmoon 6y ago
  Any individual's choices do not influence the laws of a polity, generally.
- Tehdasi 6y ago
  Comparing Australia to the US, the difference is that in the US what happens is that the Supreme court rules on a law, and the ruling directs how the government implements the law for the next 50 years. In Australia the High court makes a ruling then legislation is put into the next legislative session to 'fix up' the issue with the existing law. Although this doesn't always happen, it seems to be the most common outcome.
  - smnrchrds 6y ago
    Reminds me of the time a court ruling made hard drugs legal in Ireland. The legislature fixed the law in a matter of hours. https://www.independent.co.uk/news/world/europe/ireland-just-accidentally-legalised-ecstasy-ketamine-and-crystal-meth-10098612.html https://www.independent.co.uk/news/world/europe/ireland-just...
    - rsynnott 6y ago
      That wasn’t on a constitutional issue, though. In 1992, the Irish Supreme Court found that there was a right to abortion where a person was suicidal (at the time abortion was generally illegal in Ireland), on a constitutional basis. The government attempted to amend the constitution by referendum to remove this, but that failed.
    - deleted 6y ago
      [deleted]
  - mnm1 6y ago
    That's how the US system is supposed to work too. You're just pointing out its failure, not some fundamental difference.
  - jbeam 6y ago
    There needs to be a distinction here between SCOTUS rulings on constitutional issues versus rulings based on statute. Many if not most of the decisions that the Supreme Court hands down could be changed by the legislature. These are based on interpreting statute. For example, recently the court unanimously overturned the conviction of two New Jersey officials who were involved in a scandal involving shutting down an interstate bridge for political revenge. The majority opinion, that again was unanimously agreed to, went out of its way to say that their acts were reprehensible. But the statute that was used to charge them didn’t cover their acts. This is something that can be changed by the legislature easily and there’s no issue at all. The issue comes with the constitutional ones. These get the most press and tend to be the ones that are most controversial. But the alternatives aren’t much better. Besides the historic reasons for SCOTUS supremacy in this area starting with Marbury v. Madison, there are legitimate concerns with having the interpretation of your constitution being subject to the whims of the most recently elected body. Of course, this has led to the current nightmare where Supreme Court seats are hotly divisive contests to be won. Changing the makeup of the court is a battlefield and for the life of me I cannot see a way to fix that. Changing the number of justices or setting term limits will be seen as court packing by whichever party attempts it. It might result in open rebellion. Things are very fragile here and we are teetering on the edge.
mdorazio 6y ago
Not sure I agree with your assessment of the questions asked. Question 3 is related to if the governor should rule by executive order if the opposing party doesn't cooperate. This is pretty much exactly what you're saying in your second sentence, just with executive orders instead of courts (bypassing the normal law process vs. monopolizing it). Question 4 is then about ignoring unfavorable court rulings, which again is pretty close to the undemocratic things you're referring to.
- rossdavidh 6y ago
  The executive is at least elected, while the courts are not, even indirectly. More importantly, in recent decades one part has more often obtained what it wanted through the courts, another through executive order. Having them both as examples of undemocratic, would have made the questions more nonpartisan. As written, it seems pretty clearly written from a left-of-center position. If the study questions had been written during FDR's time, when the courts were striking down parts of the New Deal and FDR was expanding the powers of the executive in order to expand the social welfare net, we likely would see different questions used as examples of undemocratic behavior.
  - caf 6y ago
    In recentish times the courts have been striking down parts of Obamacare, gun control and campaign finance legislation too, though.
JoshTriplett 6y ago
In general, the judicial branch can't quite make new law, but they can throw out (in whole or in part) or place limitations on an existing law. (There's some nuance to that.) That seems like a relevant distinction to draw, as it's an intentional aspect of the checks and balances between branches of government.
- umanwizard 6y ago
  This isn’t true. In common-law jurisdictions, making new law is the primary role of appeals courts.
  - wahern 6y ago
    It's definitely not the primary role. It's principally a consequence of stare decisis. And even though stare decisis is the defining characteristic of the common law, in actuality many other jurisdictions apply the principle, including in Europe, just without formalizing it. The promotion of consistency is a nearly universal characteristic of all human legal systems, and stare decisis is consistency reified. [1] In terms of the exercise of de facto law making powers the United States is somewhat of an outlier owing to the fact it was one of the first to explore how to apply the principles of 1) separation of powers and 2) to do so in the context of a Federal system. Also, the concept of Parliamentary Supremacy solidified in England after the American colonial legal system had begun to evolve on its own. So for these reasons it's unsurprising we ended up diverging from England, and that other former British colonies didn't end up with lawmaking powers quite as extensive as in the U.S. Similarly, it's unsurprising that the evolution of European Union legal rules arguably mirror much of what happened in the U.S.--de facto application of stare decisis, de facto judicial review powers of top EU courts, etc. [1] Here's an interesting 1988 law review article that includes an exploration of the legal system of revolutionary France: "Tort Liability in France for the Act of Things: A Study of Judicial Lawmaking", https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=5129&context=lalrev https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?artic... The French so despised the practice of judicial lawmaking that they made it a criminal offense for judges to disambiguate the law, mandating that courts instead refer any legislative ambiguities to the Congress for interpretation. Guess how often that happened. So if you start from the premise that an intrinsic function of the courts is disambiguation, and combine it with the principle of consistent application of the law, guess where you end up. See also "Why Europe Rejected American Judicial Review and Why It May Not Matter", https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2295&context=fss_papers https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?arti...
clairity 6y ago
first, the US is a representative democracy, not a direct democracy. we don't vote on every little legal precedent. second, judges and the judicial system are a check on executive and legislative power, not a lawmaking body. please keep partisanship out of such analyses. if your ideas are good, they can stand on their own merits without trying to rally the party faithful (ironic, given the thread title).
- treeman79 6y ago
  Well said. Founders deeply distrusted democracy. Government in general, which is why system is setup to be so inefficient at change
  - scarmig 6y ago
    The Founders deeply distrusted democracy, but loved big government. That's why they built the ability in for constituent governing bodies to construct and maintain a state apparatus for the totalitarian control of a mass slave population. Moreover, they built into the Constitution the ability for the federal government to assist in the operation of that apparatus.
- deleted 6y ago
  [deleted]
- chrisco255 6y ago
  Their point is that judges sometimes rule on cases beyond what the law explicitly states. Gay marriage was one such case. Abortion another. I would argue the Eminent Domain (for private construction, to eliminate blight) ruling from a few years ago was also another example of judges ruling beyond the law. Their rulings create de facto laws or regulations many times beyond the letter of the law. I don't think it's right but whether you agree with the Supreme Court's position is often dependent on your political leaning in that particular case, even if the ruling does go against the letter of the law.
  - rsynnott 6y ago
rpiguy 6y ago
They also forgot to mention a huge one - supports suppressing the political speech of your opponents. Both parties are guilty of this, but the Left is outright determined to regulate speech, shut down the sharing of information they consider dangerous, or deem hateful. Also the paper might want to examine the executive branch leaders of each party to see who actually, consistently legislates or attempts to legislate through executive order (hint, it isn't Republicans).
- mrmario27 6y ago
  The current president has issued more executive orders than the previous... care to elaborate or support your claim?
  - Enginerrrd 6y ago
    Wikipedia says that's not true. And he's really about on track to match his contemporary predecessors. According to the table, he's issued substantially fewer than every president before him until you get has far back as Benjamin Harrison. https://en.m.wikipedia.org/wiki/Executive_order https://en.m.wikipedia.org/wiki/Executive_order
- _emacsomancer_ 6y ago
  If you think the Dems are the Left....I don't know what to tell you.
rsynnott 6y ago
> So many major policies, from abortion to the role of religion in the public sphere are decided in America by unelected judges, whereas Europe for the most part manages to pass legislation on the same issues through democratic consensus. I’m not sure that’s entirety true. It is true that the US tends to act on courts alone more often; that is, it doesn’t bother legislating at all. But a lot of civil rights issues in many European countries originate in the courts; the government acts when it realises the courts are going to do something. This is particularly true of the ECHR.

voidhorse 6y ago

Sure, I'm fairly confident that "Democracy" for many Americans means "my political beliefs" and does not designate an ideal political structure in which the system of government is determined by the populous. In the American context it's become one of those meaningless, overloaded sham words, wrought with personal interpretation and emotion. For the American, anyone who is defending his own political prescriptions is a defender of sacred democracy. I mean, jeez, we do such a poor job at political education in this country that I'm sure a large swath of the population couldn't even articulate ideal principles of a well-structured democracy.

MisterBastahrd 6y ago
It's why we're perpetually bewildered when one of the Bush family goes into a foreign country to "liberate" it and find that democracy is not the same thing as fealty to America.

shadykiller 6y ago

Not much different from many countries e.g. India

nashashmi 6y ago
Many Muslim countries are also skewed to elect conservative Muslim government. It's not they hate democracy. They just don't trust normal people to make the right decisions.
- thwarted 6y ago
  Apparently, including themselves. How much of deferring to someone else to make "the right decisions" is looking for someone to blame other than themselves when something goes wrong?
  - nashashmi 6y ago
    It took a while for me to get what you were saying. But it is true. They don't trust themselves. They trust government. Which is the opposite in America. Issue of blame is more of an afterthought, once there is no choice to make. But when things become bad, an open society is sought by people who have something to provide. Those are educated, skilled, thoughtful, serving, and maybe sacrificial and volunteering kind of people. For a society to have more people like this, it needs historical and cultural precursors so to become more "democratic" or open.
- kevin_thibedeau 6y ago
  It's more like there is a social philosophy that doesn't afford ideas contradicting orthodoxy. Free elections allow extremists to gain popular support because they're all trying to demonstrate they're the "True Scotsman". In slow increments for Turkey's case. Faster for Egypt.
- smnrchrds 6y ago
  I am not sure if I understand your comment. Are you saying conservative Muslims are not normal people?

vinceguidry 6y ago

Populism has always, from day one, all the way back in Ancient Greece, been a threat to democracy. People don’t really want lofty philosophical ideas. They want the rules most favorable to them. Been true for thousands of years and it’s not going to stop anytime soon. The surprising thing isn’t that rule of law is being threatened. It’s always being threatened. The surprising thing is that it ever evolved at all. And despite the constant threats, it still manages to evolve, one tyrant at a time. CGPGrey has a great pair of videos on pirate social dynamics that everyone should watch. Economic factors, not shared idealism, created the flat hierarchy. Nobody will choose idealism that’s not beneficial to them.

justinmeiners 6y ago
> Populism has always, from day one, all the way back in Ancient Greece, been a threat to democracy. In Plato's republic democracy is a result of populism and is seen as one of the lowest forms of government.
- vinceguidry 6y ago
  A common monarchical canard, argued all over the world, including former colonies. Monarchism set Mexico back a hundred years.
- nabla9 6y ago
  Direct democracy can be pretty damn horrible and unprincipled. Any modern system has check and balances and the process itself is important. Forcing negotiation, coalitions and making it difficult to change constitution etc. Plato had no idea how democracy can develop.
  - cjameskeller 6y ago
    Aristotle describes this as "Polity": See [this](https://fs.blog/2017/02/aristotles-politics/ https://fs.blog/2017/02/aristotles-politics/) article, and the [Politics, book 4, section XI](http://classics.mit.edu/Aristotle/politics.4.four.html#553 http://classics.mit.edu/Aristotle/politics.4.four.html#553)

JoshTriplett 6y ago

I wonder to what extent there is also a prisoner's dilemma problem here, insofar as defecting makes more sense if you have strong prior knowledge or belief that your opponent will defect. ( https://ncase.me/trust/ https://ncase.me/trust/ provides a great interactive and intuitive understanding of the prisoner's dilemma.) For example, using one of the hypotheticals from the paper, I could imagine multiple reasons for a partisan to "support a redistricting plan that gives them more seats despite a decline in polling": 1) Choosing to intentionally commit anti-democratic behavior, such as to "win at all costs". Someone couldn't justify this (to themselves or others) directly through democratic values, though they could attempt to argue that winning averts some worse outcome. 2) Perceiving unfairness in existing polling (e.g. disenfranchisement, gerrymandering, etc), and choosing an action they perceive as "balancing" similar anti-democratic behavior by the other side, with the justification that the outcome may be closer to democratic. Someone could justify this (to themselves or others) directly through democratic values alone, particularly if they argued that they would prefer the outcome in which neither side commits such anti-democratic behavior. Possibility (2) allows people to self-justify defection from democratic principles more easily, and feel more morally correct in doing so. It's difficult to get back from that situation to one in which everyone follows democratic norms and principles, if cooperating (following those norms and principles) is or is perceived as a losing strategy.

yazaddaruvala 6y ago
You have to also take into account Long Term and Short Term thinking. Not only are we playing a Prisoners’ Dilemma but most of the population is thinking about a value function that pays off in the Short Term (it’s definitely true about events outside the population’s expected lifespan, but also is true within a single lifespan). In the Long Term all of our needs are relatively aligned. There are pivotal points in history like the signing of the Magna Carta at knife point, rather than yet another relatively-shallow regime change, that are thinking about the value function in the Long Term. There will one day be an iteration on democracy that solves the Byzantine Generals Problem. Where the “failures of communication” are caused by Short Term thinking.

ryanmarsh 6y ago

Did they ask about democracy vs. a constitutional republic?

Cookingboy 6y ago

Of course, very few people actually like democracy in practice, they just tend to prefer whatever system/government that agrees with them. Imagine you let people from one party (doesn't matter Democrat or Republicans) to anonymously vote on a constitutional amendment that outlaws the opposing party members from participating in the next presidential election, my gut feeling is that amendment would pass the vote overwhelmingly. Either way, democracy is a nice ideology that won't scale in the 21st century anyway, but that's a different discussion for another day...

resfirestar 6y ago

From briefly looking through the results and the survey design, I have some practical concerns with the design of the candidate choice survey part of the study as they relate to the “party over democracy” conclusion, specifically, the fact that there were no "pro-democratic" candidate positions, only "undemocratic" and "generic". This lets the voter faced with a choice between an undemocratic candidate and a candidate who has nothing to say on the "democracy" issues project the undemocratic positions onto the "generic" candidate. This seems especially problematic because anti-electoral fairness positions and rule by executive order, widely used in America by both parties, make up half of the undemocratic positions used. For many Americans these seem to be intractable issues because (1) these abuses are already widespread, and (2) almost no political candidates, aside from more fringe single-issue ones, run on ending them or can be expected to do anything to oppose or end them if perpetrated by their own party. So to me it seems perfectly reasonable to vote for a candidate of who explicitly supports gerrymandering and rule by executive order over a candidate less aligned with you on other policy issues who has nothing to say about them. Chances are, the other guy supports those things too. Am I missing some part of the study that accounts for this?

Jedd 6y ago

"There is nothing which I dread so much as a division of the republic into two great parties, each arranged under its leader, and concerting measures in opposition to each other. This, in my humble apprehension, is to be dreaded as the greatest political evil under our Constitution." -- John Adams, 2nd President of the United States Here in Australia there's a weird combination of moves towards this hugely damaging two-party approach to politics (moves orchestrated I suspect by pop media), and a very real trend away from that. At the last federal election, f.e., we had >25% of people not voting for either of the two major parties - that ratio has been growing steadily, and is hugely reassuring. What's not reassuring is that most people still think in terms of A or B, exhibiting a poverty of expectations, or perhaps just seeking a simple answer to the complexity of administration.

mehrdadn 6y ago
And he saw this coming without needing any game theory..
- nine_k 6y ago
  I'd say that Blaise Pascal founded game theory, with his famous God / no God vs believer / non-believer matrix, at least a century before the American Revolution. I suspect such a style of thinking was not alien to intellectuals of the time, even if not as a formal theory.
rossdavidh 6y ago
It should be said that John Adams signed the Alien and Sedition Acts, the Patriot Act of their day except far worse, which were used to imprison a majority of the opposition newspaper editors using those acts' definition of sedition. Not who I would quote as a defender of democracy.
- thanhhaimai 6y ago
  I'd consider the merits of the idea separately from who said it. An idea should be judged by its merits alone.

neximo64 6y ago

It's the game theory optimal choice. No surprise there.

stakkur 6y ago

But it's well-established that this has always been the case, from almost the beginning. And it's also common in any party-based system.

cletus 6y ago

This is actually what I think is most dangerous in US politics right now. Nixon resigned to avoid an inevitable impeachment. Today? He's stay in office, have impeachment defeated on a straight party-line vote and then declare victory against "fake news". The Senate obstruction of Obama was unprecedented. The subversion of the Justice Department is unprecedented. The White House going months without a press briefing is unprecedented (in modern times). The erosion of public institutions doesn't seem to matter. Nor does the public trust in those institutions. Winning matters. Getting your agenda through no matter what matters. And that's so dangerous. This, by the way, is why mandatory voting (as we have in Australia) is so important and so much better. In the US, the election process itself is politicized. What you have is highly organized efforts aimed at voter suppression because people are allowed not to vote so much so that the GOP had to enter into a 35 year consent decree to prevent voter suppression [1]. What a lot of liberals don't understand (for the record, I include myself in that camp) is how angry the idea of activist judges makes conservatives. In US constitutional law you really have two major schools of thought: the "living document" school and the "literalists". The second group think the constitution says what it says. If you want to change that, there's a process for that (ie a constitutional amendment). The "living document" school thinks the constitution should be viewed through the lens of the times and it asks questions like "what would the Founders have written or meant today?" Broadly speaking, literalists are the conservatives and "living document" types are liberals. Judicial conservatives think there was no constitutional basis for the SCOTUS decision to legalize gay marriage. They feel like "dignity" was another invented right, just like "privacy" was an invented right that legalized abortion in Roe v. Wade. And whether or not you agree with those things in principle, you shouldn't dismiss how strongly many voters feel that legislatures not judges should enact those things. I strongly believe the combination of the SCOTUS gay marriage decision and having a black president while the candidate was HIlary Clinton was the perfect storm that was the only thing that could get Trump elected. But here's this relates to party over democracy: by any measure, Trump is a reprehensible human being. The level of hypocrisy required for religious conservatives to stand behind him is truly astounding. But they do it because we're now in a situation where the ends justifies the means and one of those key ends is packing the courts with young Conservative judges, something that'll have a legacy for decades to come. [1]: https://en.wikipedia.org/wiki/Ballot_Security_Task_Force https://en.wikipedia.org/wiki/Ballot_Security_Task_Force

beervirus 6y ago

If I wanted to read about politics, I’d go to the dumpster fire that is reddit. I come here to read about interesting things.

dang 6y ago

Editorializing titles like this is against the site guidelines. We take submission privileges away from accounts that do it repeatedly, so please don't. https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html