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Minorities cannot rely on the majority to make laws protecting the minority. Courts exist, significantly, to protect minorities from the majority. Before going

• SllX 4y ago
  Your premise is flawed: courts have less power to protect minorities than even the legislature does, but there isn’t a law in the world that can protect minorities from the dominant culture they are subject to. Courts are not the guardians of the citizenry, they are a forum for justice to be deliberated and arbitrated according to the Law and they cannot protect someone from the power of a determined people who can make their own laws. I almost included this in my last comment but left it out for brevity and because I saw it as a distraction but I think it’s appropriate here as an example: California has at multiple times sought to disallow gay marriage. First it was a statute, then it was a statute passed by ballot proposition. These were overturned by our courts. Then it was an amendment to our constitution passed by a popular vote in the same year Barack Obama was elected to his first term as POTUS where it retained the force of law until Obergefell in 2015. It had to take a Federal court to disempower Proposition 8 because once it was in the highest law of the State of California, it was beyond the power of a State court to permanently overturn it. A constitution is nothing more than an amendable body of legal text, and you can make this process easier or more difficult and there are arguments to be made for making it easier, but once it is in there not even SCOTUS can overrule it. Maybe you protect a woman’s right to an abortion that way, but maybe you achieve the exact opposite effect and now you’re stuck with it. As a prudential matter, constitutional amendments should be rare because once you pass one, the only way to undo it is with another one and we don’t need more like the 18th and 21st. So what can you accomplish without resorting to the amendment process today? If you were to resort to one, would it be better to go directly at the goals you wish to achieve, or modify the process that makes it more likely to achieve productive changes to the law without having to resort to further amendments? Ultimately this is a political fight, and while SCOTUS can grant legal victories and losses, they cannot grant political victories and losses.
  • cmurf 4y ago
    It isn't about power. It is about fairness. Legislatures are ostensibly representing the majority. How does the minority get a fair hearing before a legislature whose express job is to serve the majority? Continuing to argue that the shitty thing the majority did, should continue to be arm wrestled over politically, not in the courts, means you think the majority should always win. That is the nature of politics in a democracy! The very issue at hand is the Court becoming political and therefore granting political victories and losses, thereby no longer being viewed as capable of providing fair hearings.
    • SllX 4y ago
      There are a great many things I don’t always agree with the majority on, but in the face of a determined majority, I often lose. That’s a part of living in a democracy, and I can take solace in not always losing. I don’t support majoritarianism either, if we ever reformulate the Senate for any reason, I hope we still end up with an anti-majoritarian institution of some sort and I even have some ideas on how to both accomplish that and make it more representative if you’re interested. That said, political offices are inherently about power. They are offices of power, not fairness; people who seek to be elected to office are people who seek acquire power; and the Constitution we have, including the one that you think we should have is fundamentally a power sharing agreement between people and States. Without the rule of law, we don’t have a nation, nor do we have the institutions we rely on to protect us from injustices both foreign or domestic. Abortion was never not political. SCOTUS cannot bang their gavels and make it not political because society has politicized this issue under Roe/Casey’s jurisprudence and will continue to politicize it even if Roe/Casey are actually overturned. You could not successfully pass a constitutional amendment, declare victory, and expect the political nature of it to evaporate. There is no “should” here, there is only the reality that we live in with the people we share it with whether we recognize it as such or not. More than abortion, I think the biggest problem we have as a nation is a lack of buy-in, or put another way: representation. We have more or less the right framework for government, but the most powerful branch of government is Congress and Congress itself is both too under-representative and too disinterested, and specifically the House of Representatives for which it is their entire schtick to be the directly elected house most representative of Americans. If you wanted to pass a Constitutional amendment of some sort, I would think about how to improve the legislature, because it doesn’t matter how many “rights” you stack in there if Americans do not culturally respect them. So how do you get the buy-in so we can have actual conversations about divisive political issues which divide us (instead of SCOTUS kindly putting the legislative conversation on hold for 50 or so years, elected representatives have more or less been able to say whatever they want without facing actual electoral consequences) and broker actual compromises?