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First of all any claim that the US Supreme Court is categorically 'supreme' than the legislature is not true. It is a fact that each of the three branches of go

by xpe 5y ago

First of all any claim that the US Supreme Court is categorically 'supreme' than the legislature is not true. It is a fact that each of the three branches of government have powers that check and balance each other. In other words if you were to draw a diagram of powers, there are responses available to other branches to counter one branch's action. These responses vary in time scale and impact of course. So you will certainly find scholars who get into the details of how e.g. the Supreme Court's power changes over time. One would be making a value judgement if they were to claim that, overall, the US Supreme Court is 'more powerful'. Opinions are fine -- just recognize them as such and explain your reasoning -- one's weightings of what matters more and less.

mjburgess 5y ago
That's the story -- is it /true/ ? Several maneovers have made the supreme court vastly more powerful than ever envisaged. The SC declaring for itself (in Marbury v. Madison) the right for itself to review the law itself. And subsequent to the civil war, the widening supremacy of federal law (esp. via commerce clause) -- which its own opinions are incorporated in -- and so on. The "balance of powers" was set up in an essentially pre-federal US. The current US is a system which feels itself "finally answerable" to the at-whim constitution interpretations of nine people. This is a radically different end-state than imagined pre-Madison. In my view the legislature needs to exercise much more constitutional oversight over the SC, and up-end the last century of scope-creep.
- qsort 5y ago
  Almost all Western countries have a system of judicial review, so I would personally find the opposite to be odd (why would it make sense to have a constitution at all if it can be effectively ignored by the legislature?) If anything, from an European perspective, what I find odd is that the US Supreme Court is both the final appellate court and the judicial body that determines constitutionality of primary legislation.
  - mjburgess 5y ago
    I prefer the British system: parliament is sovereign and the primary source of all power. The executive is derivative of the lower-house and the courts merely resolve issues between laws (and it used to be that the courts, derived from the upper-house -- which i'd go back to). The benefit of the legislature being the source of all power is it leads to a tremendously stable system. Tremendous instability arises from the legislature being neutered (as by the courts, or the executive). As popular sentiment is profoundly frustrated, and the legislature absolves itself of responsibility to govern. Almost all the "culture wars" in the US can be traced to the supreme court, as can the civil war -- which in its rebuke against the Missouri compromise caused the civil war!. "Balance of powers" systems have always ended up in civil wars. The post-civilwar presidential system is the longest such a system has survived: but let's be clear, it failed (ie., there was a civil war). That means of running governments has led to all of them collapsing. I'd incorporate the constitution as an act of the legislature; and subordinate the supreme court to work like every other: reviewing laws for consistency between themselves -- and not for consisency with "higher principles". The legislature can then, by any act if it wishes, elaborate or change the constitution to resolve "contradictions" the supreme court points out. This hands power back to the body actually responsible for governing. (The instability due to Brexit in the UK precisely arose from the legislature stupidly binding itself with the Fixed-Term Parliaments act, which is now being revoked. Had that not been in place, Brexit would have been resolved immediately. And, incidentally, it is precisely that the EU is a "constitutional order" in the US sense which is causing its internal stress; and why the UK left. )
  - xpe 5y ago
    > Almost all Western countries have a system of judicial review, so I would personally find the opposite to be odd (why would it make sense to have a constitution at all if it can be effectively ignored by the legislature?) I get your drift. It is possible to design a government where a constitution limits a legislature's power without a separate judicial branch. Here are some ways (not mutually exclusive): 1. The legislative branch could have an internal judicial branch 2. The Constitution would guide procedures of the legislature; e.g. different kinds of actions require different thresholds
  - xpe 5y ago
- xpe 5y ago
  > That's the story -- is it /true/ ? Can you please be more specific; take a particular sentence that I wrote (above) and make an argument for why it is or is not 'true' -- and then please explain what you mean by 'true'.
Retric 5y ago
It’s often stated that in theory each branch of government is equal, in practice the idea of the constitution splitting power into three exactly equivalent portions is kind of silly. As you point out it’s somewhat arbitrary how much weight to assign to each individual branch of government. But, the judicial branch sure tells the legislative branch no far more often than the reverse (edit: than the legislature tells to judicial branch no.). Hypothetically the ability to modify the constitution is a real power the legislature holds across the state and federal levels, in practice a divided legislature has issues passing via simple majority. Which adds another layer to these assessments. Does the each branch actually have the powers it should hypothetically have or only those it can actually exercise in practice?
- fennecfoxen 5y ago
  > But, the judicial branch sure tells the legislative branch no far more often than the reverse The court does not really interact with the legislature directly, to say Yes or No. The court interprets a body of laws, and won’t have an opinion on the validity of a law except insofar as it is in conflict with another law (such as the Constitution, or state laws in conflict with federal ones, or maybe just one law that’s inconsistent with itself). Moreover, a the key function of the Supreme Court of the United States specifically is to resolve conflicts in interpretation in law in the lower circuit courts (as is relevant to actual ongoing disputes). If the law is clearly invalid, a lower court can decide that. So yeah, if the law is obviously valid or uncontroversial, or even if it’s obviously invalid, chances are there’s just not any case brought before the Supreme Court. That’s just the default. They don’t affirm the validity of laws that often because most valid laws aren’t really challenged there.
- xpe 5y ago
  > It’s often stated that in theory each branch of government is equal Not by myself (above), but yes, sometimes others say this > in practice the idea of the constitution splitting power into three exactly equivalent portions is kind of silly. I wouldn't use the word 'silly'. I would say that any such design goal of a constitution would be (a) tricky to implement and (b) probably impossible to convince the public that it was 'equivalent' because doing so would require value judgments (norms).

by xpe 5y ago

mjburgess 5y ago

That's the story -- is it /true/ ? Several maneovers have made the supreme court vastly more powerful than ever envisaged. The SC declaring for itself (in Marbury v. Madison) the right for itself to review the law itself. And subsequent to the civil war, the widening supremacy of federal law (esp. via commerce clause) -- which its own opinions are incorporated in -- and so on. The "balance of powers" was set up in an essentially pre-federal US. The current US is a system which feels itself "finally answerable" to the at-whim constitution interpretations of nine people. This is a radically different end-state than imagined pre-Madison. In my view the legislature needs to exercise much more constitutional oversight over the SC, and up-end the last century of scope-creep.

qsort 5y ago
Almost all Western countries have a system of judicial review, so I would personally find the opposite to be odd (why would it make sense to have a constitution at all if it can be effectively ignored by the legislature?) If anything, from an European perspective, what I find odd is that the US Supreme Court is both the final appellate court and the judicial body that determines constitutionality of primary legislation.
- mjburgess 5y ago
  I prefer the British system: parliament is sovereign and the primary source of all power. The executive is derivative of the lower-house and the courts merely resolve issues between laws (and it used to be that the courts, derived from the upper-house -- which i'd go back to). The benefit of the legislature being the source of all power is it leads to a tremendously stable system. Tremendous instability arises from the legislature being neutered (as by the courts, or the executive). As popular sentiment is profoundly frustrated, and the legislature absolves itself of responsibility to govern. Almost all the "culture wars" in the US can be traced to the supreme court, as can the civil war -- which in its rebuke against the Missouri compromise caused the civil war!. "Balance of powers" systems have always ended up in civil wars. The post-civilwar presidential system is the longest such a system has survived: but let's be clear, it failed (ie., there was a civil war). That means of running governments has led to all of them collapsing. I'd incorporate the constitution as an act of the legislature; and subordinate the supreme court to work like every other: reviewing laws for consistency between themselves -- and not for consisency with "higher principles". The legislature can then, by any act if it wishes, elaborate or change the constitution to resolve "contradictions" the supreme court points out. This hands power back to the body actually responsible for governing. (The instability due to Brexit in the UK precisely arose from the legislature stupidly binding itself with the Fixed-Term Parliaments act, which is now being revoked. Had that not been in place, Brexit would have been resolved immediately. And, incidentally, it is precisely that the EU is a "constitutional order" in the US sense which is causing its internal stress; and why the UK left. )
- xpe 5y ago
  > Almost all Western countries have a system of judicial review, so I would personally find the opposite to be odd (why would it make sense to have a constitution at all if it can be effectively ignored by the legislature?) I get your drift. It is possible to design a government where a constitution limits a legislature's power without a separate judicial branch. Here are some ways (not mutually exclusive): 1. The legislative branch could have an internal judicial branch 2. The Constitution would guide procedures of the legislature; e.g. different kinds of actions require different thresholds
- xpe 5y ago
xpe 5y ago
> That's the story -- is it /true/ ? Can you please be more specific; take a particular sentence that I wrote (above) and make an argument for why it is or is not 'true' -- and then please explain what you mean by 'true'.

Retric 5y ago

It’s often stated that in theory each branch of government is equal, in practice the idea of the constitution splitting power into three exactly equivalent portions is kind of silly. As you point out it’s somewhat arbitrary how much weight to assign to each individual branch of government. But, the judicial branch sure tells the legislative branch no far more often than the reverse (edit: than the legislature tells to judicial branch no.). Hypothetically the ability to modify the constitution is a real power the legislature holds across the state and federal levels, in practice a divided legislature has issues passing via simple majority. Which adds another layer to these assessments. Does the each branch actually have the powers it should hypothetically have or only those it can actually exercise in practice?

fennecfoxen 5y ago
> But, the judicial branch sure tells the legislative branch no far more often than the reverse The court does not really interact with the legislature directly, to say Yes or No. The court interprets a body of laws, and won’t have an opinion on the validity of a law except insofar as it is in conflict with another law (such as the Constitution, or state laws in conflict with federal ones, or maybe just one law that’s inconsistent with itself). Moreover, a the key function of the Supreme Court of the United States specifically is to resolve conflicts in interpretation in law in the lower circuit courts (as is relevant to actual ongoing disputes). If the law is clearly invalid, a lower court can decide that. So yeah, if the law is obviously valid or uncontroversial, or even if it’s obviously invalid, chances are there’s just not any case brought before the Supreme Court. That’s just the default. They don’t affirm the validity of laws that often because most valid laws aren’t really challenged there.
xpe 5y ago
> It’s often stated that in theory each branch of government is equal Not by myself (above), but yes, sometimes others say this > in practice the idea of the constitution splitting power into three exactly equivalent portions is kind of silly. I wouldn't use the word 'silly'. I would say that any such design goal of a constitution would be (a) tricky to implement and (b) probably impossible to convince the public that it was 'equivalent' because doing so would require value judgments (norms).