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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

by 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
Unlikely as it might be, there are scenarios where the current U.S. legislature could significantly change the Supreme Court and/or disobey it: (a) refusing to fund or enforce some of the court's decisions (this may require action by the executive branch as well) (b) changing the court's composition (c) (potentially*) changing funding of the court (I am not an expert, so I could be wrong, but I would guess that there are mechanisms to do so)

by qsort 5y ago

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

Unlikely as it might be, there are scenarios where the current U.S. legislature could significantly change the Supreme Court and/or disobey it: (a) refusing to fund or enforce some of the court's decisions (this may require action by the executive branch as well) (b) changing the court's composition (c) (potentially*) changing funding of the court (I am not an expert, so I could be wrong, but I would guess that there are mechanisms to do so)