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It’s interesting that you would say that constitutional gridlock is by design, and that the US constitution being extremely difficult to amend is a good thing.

by ern 6y ago

It’s interesting that you would say that constitutional gridlock is by design, and that the US constitution being extremely difficult to amend is a good thing. No less a conservative jurist than Antonin Scalia repeatedly pointed out that he believed the US constitution was too hard to amend...amendments could be blocked by 2% of the population. [https://slate.com/news-and-politics/2014/05/amending-the-constitution-is-much-too-hard-blame-the-founders.html https://slate.com/news-and-politics/2014/05/amending-the-con...] To me, as an outside observer, it seems like the unseemly political shenanigans around appointments to the US Supreme Court are because the will of your Founders is too hard to override politically, and if the system of government was as great as it is made out to be, the philosophy and leanings of individual SCOTUS justices would not be such a huge deal.

rayiner 6y ago
> To me, as an outside observer, it seems like the unseemly political shenanigans around appointments to the US Supreme Court are because the will of your Founders is too hard to override politically, and if the system of government was as great as it is made out to be, the philosophy and leanings of individual SCOTUS justices would not be such a huge deal. You’ve got it precisely backward. Liberals make the “philosophy and leanings of individual SCOTUS justice” a “huge deal” because they rely on the courts to legislate policies they can’t get through Congress. You talk about the difficulty of amending the constitution, but how does that relate to the controversy around judicial appointments? When France and Germany legalized abortion, same sex marriage, etc., they didn’t amend the constitution. They just passed a law. But liberals didn’t have the votes in Congress to pass those laws. So they got it done through the courts. And then they create a controversy around judicial appointments because conservative jurists foreclose that strategy. With respect to hot-button judicial issues in the US, the courts in Europe is a lot more like the American conservatives than the American liberals. In 2016, the European Court of Human Rights found that there was no fundamental right to same-sex marriage in the European Convention of Human Rights: https://eclj.org/marriage/the-echr-unanimously-confirms-the-non-existence-of-a-right-to-gay-marriage https://eclj.org/marriage/the-echr-unanimously-confirms-the-.... That was the year after the United States Supreme Court found exactly the opposite. Around the same time as Roe v. Wade several courts in Europe considered the same issue. None concludes there was an expansive right to abortion: https://repository.law.uic.edu/cgi/viewcontent.cgi?article=2524&context=lawreview https://repository.law.uic.edu/cgi/viewcontent.cgi?article=2... > These decisions seem to reflect several possible solutions. At one end of the spectrum is the decision of the U.S. Supreme Court which held that the U.S. Constitution prohibits abortion legislation designed to protect the life of the unborn prior to viability. At the other end of the spectrum is the decision of the West German Constitutional Court which held that the State has an affirmative duty to protect the unborn life at all stages of pregnancy. To this day Roe remains an aberration in the developed world. Under it, the government can’t ban abortion (even with exceptions for emergencies) prior to viability, at the end of the second trimester. Under Roe the abortion laws of nearly every European country would be unconstitutional. (Only the UK’s would pass muster. Most prohibit elective abortion after the first trimester.) Difficulty of amending the constitution is irrelevant, because the controversy is caused by things that can’t get enough support nationwide for ordinary legislation.
- ern 6y ago
  Gun control and the Second Amendment and Obamacare seem to be a clear examples where conservatives use the court to override the democratic will of the people overturning legislation. Campaign finance reform as well. There are numerous examples (FDR and the New Deal come to mind) where the court overrode the democratic will to favour more conservative positions. Of course I am just a casual observer, not an expert, so I may have missed some cases. Regarding Roe v Wade (which I’ve read is widely seen as a bad decision) I agree that it’s unseemly. I also agree that in recent years too much social engineering has been routed through the Supreme Court. I won’t dispute that most constitutional courts around the world are conservative or ideologically neutral, since they are aware that they can interpret the law as written, and not act as a pressure release valve against the dead hand of their “Founders” as they know that their populations can amend their constitutions if there is a pressing need.
  - rayiner 6y ago
    > I won’t dispute that most constitutional courts around the world are conservative or ideologically neutral, since they are aware that they can interpret the law as written, and not act as a pressure release valve against the dead hand of their “Founders” as they know that their populations can amend their constitutions if there is a pressing need. The difficulty of amending the constitution is a theoretical problem. It takes a 2/3 majority of the Bundestag and the Bundesrat in Germany to amend the Basic Law. And for most of the issues where there is a disconnect between what the people want and the constitution, there wouldn’t be sufficient public support for an amendment even under the lower standard. Take gun control: https://www.slowboring.com/p/national-democrats-misguided-re-embrace https://www.slowboring.com/p/national-democrats-misguided-re... Could you get a 2/3 majority of the House and Senate to repeal the second amendment? No way. Maybe you could get a 2/3 majority of both houses to overturn Citizens United. But note also that 2/3 of Americans still oppose the Supreme Court decision banning school prayer. So it works both ways. Obamacare is a bad example. The ACA case wasn’t a liberal versus conservative thing. It was simply a matter of the law as drafted failing to respect federalism. Courts in other countries aggressively enforce the structural protections of their constitutions, more so than the Supreme Court. Legislatures in those countries just deal with it. For example, Canada’s health system is largely administered by the provinces, with the federal government mainly setting standards and paying block grants to even out funding inequalities between the provinces. Has the ACA been modeled on Canada’s system (and in fact Medicaid is pretty similar) it would easily have passed muster in the Supreme Court. The FDR era is the best example of where the Supreme Court really did strike down the will of the people to adhere to a conservative reading of the constitution. But the Supreme Court folded like a cheap suit when FDR threatened it, and now we have a nationwide minimum wage and executive administrative agencies that act like legislatures in issuing rules that have the force of law and like the judiciary in adjudicating regulatory violations before administrative judges. I don’t think say the German constitutional court would have allowed an entire new branch of government to be created without a constitutional amendment. While some conservatives might say the entire administrative state is unconstitutional, the public got its way ultimately. And you’re right I think it was the Supreme Court acting as a pressure release valve. But overall I think it’s rare for conservatives on the Supreme Court to be out of step with the public on a legal issue where there is enough public consensus that an amendment would be possible under a lower 2/3 standard. Generally, conservatives are in the position of resisting change in areas where liberals might have a narrow majority or not even a majority.

by ern 6y ago

rayiner 6y ago

> To me, as an outside observer, it seems like the unseemly political shenanigans around appointments to the US Supreme Court are because the will of your Founders is too hard to override politically, and if the system of government was as great as it is made out to be, the philosophy and leanings of individual SCOTUS justices would not be such a huge deal. You’ve got it precisely backward. Liberals make the “philosophy and leanings of individual SCOTUS justice” a “huge deal” because they rely on the courts to legislate policies they can’t get through Congress. You talk about the difficulty of amending the constitution, but how does that relate to the controversy around judicial appointments? When France and Germany legalized abortion, same sex marriage, etc., they didn’t amend the constitution. They just passed a law. But liberals didn’t have the votes in Congress to pass those laws. So they got it done through the courts. And then they create a controversy around judicial appointments because conservative jurists foreclose that strategy. With respect to hot-button judicial issues in the US, the courts in Europe is a lot more like the American conservatives than the American liberals. In 2016, the European Court of Human Rights found that there was no fundamental right to same-sex marriage in the European Convention of Human Rights: https://eclj.org/marriage/the-echr-unanimously-confirms-the-non-existence-of-a-right-to-gay-marriage https://eclj.org/marriage/the-echr-unanimously-confirms-the-.... That was the year after the United States Supreme Court found exactly the opposite. Around the same time as Roe v. Wade several courts in Europe considered the same issue. None concludes there was an expansive right to abortion: https://repository.law.uic.edu/cgi/viewcontent.cgi?article=2524&context=lawreview https://repository.law.uic.edu/cgi/viewcontent.cgi?article=2... > These decisions seem to reflect several possible solutions. At one end of the spectrum is the decision of the U.S. Supreme Court which held that the U.S. Constitution prohibits abortion legislation designed to protect the life of the unborn prior to viability. At the other end of the spectrum is the decision of the West German Constitutional Court which held that the State has an affirmative duty to protect the unborn life at all stages of pregnancy. To this day Roe remains an aberration in the developed world. Under it, the government can’t ban abortion (even with exceptions for emergencies) prior to viability, at the end of the second trimester. Under Roe the abortion laws of nearly every European country would be unconstitutional. (Only the UK’s would pass muster. Most prohibit elective abortion after the first trimester.) Difficulty of amending the constitution is irrelevant, because the controversy is caused by things that can’t get enough support nationwide for ordinary legislation.

ern 6y ago
Gun control and the Second Amendment and Obamacare seem to be a clear examples where conservatives use the court to override the democratic will of the people overturning legislation. Campaign finance reform as well. There are numerous examples (FDR and the New Deal come to mind) where the court overrode the democratic will to favour more conservative positions. Of course I am just a casual observer, not an expert, so I may have missed some cases. Regarding Roe v Wade (which I’ve read is widely seen as a bad decision) I agree that it’s unseemly. I also agree that in recent years too much social engineering has been routed through the Supreme Court. I won’t dispute that most constitutional courts around the world are conservative or ideologically neutral, since they are aware that they can interpret the law as written, and not act as a pressure release valve against the dead hand of their “Founders” as they know that their populations can amend their constitutions if there is a pressing need.
- rayiner 6y ago
  > I won’t dispute that most constitutional courts around the world are conservative or ideologically neutral, since they are aware that they can interpret the law as written, and not act as a pressure release valve against the dead hand of their “Founders” as they know that their populations can amend their constitutions if there is a pressing need. The difficulty of amending the constitution is a theoretical problem. It takes a 2/3 majority of the Bundestag and the Bundesrat in Germany to amend the Basic Law. And for most of the issues where there is a disconnect between what the people want and the constitution, there wouldn’t be sufficient public support for an amendment even under the lower standard. Take gun control: https://www.slowboring.com/p/national-democrats-misguided-re-embrace https://www.slowboring.com/p/national-democrats-misguided-re... Could you get a 2/3 majority of the House and Senate to repeal the second amendment? No way. Maybe you could get a 2/3 majority of both houses to overturn Citizens United. But note also that 2/3 of Americans still oppose the Supreme Court decision banning school prayer. So it works both ways. Obamacare is a bad example. The ACA case wasn’t a liberal versus conservative thing. It was simply a matter of the law as drafted failing to respect federalism. Courts in other countries aggressively enforce the structural protections of their constitutions, more so than the Supreme Court. Legislatures in those countries just deal with it. For example, Canada’s health system is largely administered by the provinces, with the federal government mainly setting standards and paying block grants to even out funding inequalities between the provinces. Has the ACA been modeled on Canada’s system (and in fact Medicaid is pretty similar) it would easily have passed muster in the Supreme Court. The FDR era is the best example of where the Supreme Court really did strike down the will of the people to adhere to a conservative reading of the constitution. But the Supreme Court folded like a cheap suit when FDR threatened it, and now we have a nationwide minimum wage and executive administrative agencies that act like legislatures in issuing rules that have the force of law and like the judiciary in adjudicating regulatory violations before administrative judges. I don’t think say the German constitutional court would have allowed an entire new branch of government to be created without a constitutional amendment. While some conservatives might say the entire administrative state is unconstitutional, the public got its way ultimately. And you’re right I think it was the Supreme Court acting as a pressure release valve. But overall I think it’s rare for conservatives on the Supreme Court to be out of step with the public on a legal issue where there is enough public consensus that an amendment would be possible under a lower 2/3 standard. Generally, conservatives are in the position of resisting change in areas where liberals might have a narrow majority or not even a majority.