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America's Constitution was designed from inception to have strict separations of responsibilities among the legislative, executive, and judicial branches, such

America's Constitution was designed from inception to have strict separations of responsibilities among the legislative, executive, and judicial branches, such that they must work together to exercise power. This is meant to prevent any one individual or a party from becoming too powerful and thus endangering liberty. When they are not working together, they are meant to be powerless. Legislative power in particular was meant to be wielded by Congresspersons directly accountable to their constituents. Judges as legislators violate this separation, undermining not only key protections on democratic integrity, but the legitimacy of the whole scheme, through its avoidance of that direct democratic accountability. Note that excessive delegation from the legislature to the executive branch through agencies with rule-making power is also a separations-of-power concern, and there is special law around the procedures by which executive agency rule-making may take place. Another case is executive power being wielded by Congress: Seila Law LLC v. Consumer Financial Protection Bureau, argued this March and not yet decided, took on the problem that the head of the CFPB was not accountable to the President.

mjburgess 6y ago
In practice, there is no coherent "separation of power". Power is not some multivalent thing which can be exercised differently by different institutions. Power here is the ability of one group to direct/constrain the actions of another.. the judiciary, the executive and the legislature all exercise the same power. The only thing "separation" achieves is a system of mutual antagonism which functions (poorly) as a system of accountability. Here, congress at any point can redress "legislating from the bench" (ie., establishing legal precedent) by passing new law. If the judiciary ignores this law, then they can be removed from office. I cannot see any circumstance here where the legislature has issues new law in redress for a judicial ruling and then the judiciary has gone on to ignore it. What we're talking about here is when judges have simply "made up rules" where the law fails to provide answers. that is the role of the judiciary in a common law system! It's what provides for reasonable standards of individual freedom which adapt to the age. rather than havign everyone legislataed by an infinite number of rules est. in 1701
- fennecfoxen 6y ago
  You say, "that is the role of the judiciary in a common law system!" but America is primarily a Constitutional-law system, and only secondarily a common-law system. We have laws (the Constitution) describing what the judicial branch is meant to do, and what you describe here as your ideal is at least partially at odds with what they say. It appears you are also a skeptic of the principle of Separation of Powers to begin with. You are, of course, not asked to accept that this is ideal. I will, however, ask that you accept that this structure was designed and codified into law to uphold that principle, and this is often at the root of (principled) objections when things are done your preferred way. This is a better place to start a conversation, rather than of celebrating your failure to understand (which is meant to imply that something does not make sense, but really says more about your own understanding.) Imagine an American complaining: "Parliament is so confusing! What is all this drama about 'forming a government' and coalitions? Why can't they just elect a President directly?" The American may or may not have a meaningful point, but if they do have a point, this point is rather ill-served by the venue and the manner in which it is raised. The way in which you raise your objections here is similar.
  - mjburgess 6y ago
    My claim is that there is nothing in your constitution or legal set up which establishes anything like a "legislating from the bench" objection. I haven't failed to understand your system, I am claiming, there is nothing present in it to understand. The constitution itself places a court as its interpretive body: the power of the constitution is exercised by judges, explicitly mandated to interpret it. Judicial power isn't some "secondary" feature over which congress is meant to preside. It is the primary mechanism of the constitutional order itself. The american legal order is established, maintained and exercised by the judiciary. There is a mistaken view that Congress as a democratic body has more "legitimacy" and therefore that others exercising power are overstepping their mark. But the american constitution is not democratic, and has no high regard for democracy as the principle authorising source of power. The founders were far more concerned to rest power in as narrow hands as possible, hence the supreme court and hence the electoral college. There is no such thing as "legislating from the bench" -- this is just judges exercising their constitutional role.

mjburgess 6y ago

In practice, there is no coherent "separation of power". Power is not some multivalent thing which can be exercised differently by different institutions. Power here is the ability of one group to direct/constrain the actions of another.. the judiciary, the executive and the legislature all exercise the same power. The only thing "separation" achieves is a system of mutual antagonism which functions (poorly) as a system of accountability. Here, congress at any point can redress "legislating from the bench" (ie., establishing legal precedent) by passing new law. If the judiciary ignores this law, then they can be removed from office. I cannot see any circumstance here where the legislature has issues new law in redress for a judicial ruling and then the judiciary has gone on to ignore it. What we're talking about here is when judges have simply "made up rules" where the law fails to provide answers. that is the role of the judiciary in a common law system! It's what provides for reasonable standards of individual freedom which adapt to the age. rather than havign everyone legislataed by an infinite number of rules est. in 1701

fennecfoxen 6y ago
You say, "that is the role of the judiciary in a common law system!" but America is primarily a Constitutional-law system, and only secondarily a common-law system. We have laws (the Constitution) describing what the judicial branch is meant to do, and what you describe here as your ideal is at least partially at odds with what they say. It appears you are also a skeptic of the principle of Separation of Powers to begin with. You are, of course, not asked to accept that this is ideal. I will, however, ask that you accept that this structure was designed and codified into law to uphold that principle, and this is often at the root of (principled) objections when things are done your preferred way. This is a better place to start a conversation, rather than of celebrating your failure to understand (which is meant to imply that something does not make sense, but really says more about your own understanding.) Imagine an American complaining: "Parliament is so confusing! What is all this drama about 'forming a government' and coalitions? Why can't they just elect a President directly?" The American may or may not have a meaningful point, but if they do have a point, this point is rather ill-served by the venue and the manner in which it is raised. The way in which you raise your objections here is similar.
- mjburgess 6y ago
  My claim is that there is nothing in your constitution or legal set up which establishes anything like a "legislating from the bench" objection. I haven't failed to understand your system, I am claiming, there is nothing present in it to understand. The constitution itself places a court as its interpretive body: the power of the constitution is exercised by judges, explicitly mandated to interpret it. Judicial power isn't some "secondary" feature over which congress is meant to preside. It is the primary mechanism of the constitutional order itself. The american legal order is established, maintained and exercised by the judiciary. There is a mistaken view that Congress as a democratic body has more "legitimacy" and therefore that others exercising power are overstepping their mark. But the american constitution is not democratic, and has no high regard for democracy as the principle authorising source of power. The founders were far more concerned to rest power in as narrow hands as possible, hence the supreme court and hence the electoral college. There is no such thing as "legislating from the bench" -- this is just judges exercising their constitutional role.