5 ms·

The US reliance on judges and (poorly written, centuries old) "amendments" to decide what is or is not a right is badly dysfunctional and actively politicises t

The US reliance on judges and (poorly written, centuries old) "amendments" to decide what is or is not a right is badly dysfunctional and actively politicises the judiciary.

claytongulick 4y ago
What is a better solution?
- dh2022 4y ago
  A solution could be amending the constitution with ‘modern’ amendments. The founders knew times will surely change and made provisions about how to change the constitution.
  - MockObject 4y ago
    The American people do that any time they feel like it.
  - UncleEntity 4y ago
    > The founders knew times will surely change and made provisions about how to change the constitution. They also made it really, really hard to do so. And also didn’t expect the federal government to be all up in everyone’s business through the commerce clause. It used to take a constitutional amendment to outlaw a thing (prohibition) but now it’s a simple majority vote.
s1artibartfast 4y ago
It is a good system to have judges vet the legality of new laws. The problem is that the judiciary has increasingly been relied on to modify law via interpretation in the absence of clear updates to rights from congress. Roe was a classic example of this where the legal underpinning was tenuous at best.
- LatteLazy 4y ago
  I agree completely. One of the issues with the US system is it has so many "checks and balances" it is basically impossible to do anything. Except that SCOTIS can do anything and is controlled completely by the senate alone. So decisions that are political and not legal end up with them when they shouldn't AND the senate is free to make those decisions by appointing political proxies instead of real judges. Every other western country has managed to get reasonable abortion rights by political processes. In the US you can make no progress unless 99% of people agree or SCOTUS step in. So everything relies on them because you can never get the ultra super majority that the US system requires otherwise. Ditto Gun rights, healthcare, workers rights, democratic reform, civil liberties etc...
  - s1artibartfast 4y ago
    I agree there are some system design headwinds, but don't think they are the leading problem. In my opinion, the biggest problem is that both parties have a vested interest in not resolving the issue. There are common sense policies, especially when it comes to abortion, that Congress has had the political power to pass and sufficient public support. Unfortunately, the topic is too valuable as a wedge issue to solve. As a result, neither party will accept Common Sense abortion law like what is generally seen in Europe. It is not extreme enough for either the left or right. Because it is such a political football, the general public is also grossly misinformed on what the actual abortion policies are in Europe. When you look at them in detail, they are very much a compromise, not an unlimited right to abortion, and often more restrictive than the Roe standard.
  - TMWNN 4y ago
    >Every other western country has managed to get reasonable abortion rights by political processes. In the US you can make no progress unless 99% of people agree or SCOTUS step in. It's because of the Supreme Court's mistake with Roe v. Wade in the first place. By the early 1970s various US states had legalized abortion. In Roe the Supreme Court suddenly ruled that abortion was a constitutional right, abruptly legalizing it nationwide with more or less no restrictions whatsoever; even many abortion-rights supporters believed before Dobbs overturned Roe that the legal theory behind Roe was faulty, including Justice Ginsberg. The result was so across-the-board that, among other things, the US still allows abortions to occur later than anywhere else. (More on this later.) Preventing the full political debate process from occurring is why abortion remains so controversial in the country 45 years and counting. Because such issues are polarizing and partisan, they need full discussion in a legislature, as opposed to unelected judges unilaterally short-circuiting the debate. Again: Dobbs, by overturning Roe, did not "ban abortion nationwide in the USA". As one of the justices wrote, all it did was to restore the court's proper silence on the matter and let the states decide. Further, as s1artibartfast told you, it was not true before or after Dobbs that "every other western country has managed to get reasonable abortion rights" (by which you mean, more allowing of abortion than the US, since the US surely is the world's most restrictive on abortion). Let's take Germany as example: * Abortion is always illegal in Germany, because courts have repeatedly found that the fetus has a right to life. (This occurred at almost the same moment as Roe v. Wade.) * However, Section 218 of the criminal code has decriminalized abortion in some circumstances: * Before 12 weeks, with counseling and waiting period. * After 12 weeks, when rape or medical necessity is involved, with approval by two doctors, and possibly counseling and waiting period.
ss108 4y ago
It's not the best, but I don't think it politicizes the judiciary. Appointment of judges by politicians is much more blameworthy in that regard.
philwelch 4y ago
Most developed countries do similar things; it’s just that their human rights laws were written more recently for historic reasons. For instance, the Canadian Charter of Rights and Freedoms was written in 1982 because that’s when Canada rewrote their constitution to more completely break away from British rule, and the European Convention on Human Rights was drafted in 1950, in the immediate post-war era.

The US reliance on judges and (poorly written, centuries old) "amendments" to decide what is or is not a right is badly dysfunctional and actively politicises the judiciary.

claytongulick 4y ago

What is a better solution?

dh2022 4y ago
A solution could be amending the constitution with ‘modern’ amendments. The founders knew times will surely change and made provisions about how to change the constitution.
- MockObject 4y ago
  The American people do that any time they feel like it.
- UncleEntity 4y ago
  > The founders knew times will surely change and made provisions about how to change the constitution. They also made it really, really hard to do so. And also didn’t expect the federal government to be all up in everyone’s business through the commerce clause. It used to take a constitutional amendment to outlaw a thing (prohibition) but now it’s a simple majority vote.

s1artibartfast 4y ago

It is a good system to have judges vet the legality of new laws. The problem is that the judiciary has increasingly been relied on to modify law via interpretation in the absence of clear updates to rights from congress. Roe was a classic example of this where the legal underpinning was tenuous at best.

LatteLazy 4y ago
I agree completely. One of the issues with the US system is it has so many "checks and balances" it is basically impossible to do anything. Except that SCOTIS can do anything and is controlled completely by the senate alone. So decisions that are political and not legal end up with them when they shouldn't AND the senate is free to make those decisions by appointing political proxies instead of real judges. Every other western country has managed to get reasonable abortion rights by political processes. In the US you can make no progress unless 99% of people agree or SCOTUS step in. So everything relies on them because you can never get the ultra super majority that the US system requires otherwise. Ditto Gun rights, healthcare, workers rights, democratic reform, civil liberties etc...
- s1artibartfast 4y ago
  I agree there are some system design headwinds, but don't think they are the leading problem. In my opinion, the biggest problem is that both parties have a vested interest in not resolving the issue. There are common sense policies, especially when it comes to abortion, that Congress has had the political power to pass and sufficient public support. Unfortunately, the topic is too valuable as a wedge issue to solve. As a result, neither party will accept Common Sense abortion law like what is generally seen in Europe. It is not extreme enough for either the left or right. Because it is such a political football, the general public is also grossly misinformed on what the actual abortion policies are in Europe. When you look at them in detail, they are very much a compromise, not an unlimited right to abortion, and often more restrictive than the Roe standard.
- TMWNN 4y ago
  >Every other western country has managed to get reasonable abortion rights by political processes. In the US you can make no progress unless 99% of people agree or SCOTUS step in. It's because of the Supreme Court's mistake with Roe v. Wade in the first place. By the early 1970s various US states had legalized abortion. In Roe the Supreme Court suddenly ruled that abortion was a constitutional right, abruptly legalizing it nationwide with more or less no restrictions whatsoever; even many abortion-rights supporters believed before Dobbs overturned Roe that the legal theory behind Roe was faulty, including Justice Ginsberg. The result was so across-the-board that, among other things, the US still allows abortions to occur later than anywhere else. (More on this later.) Preventing the full political debate process from occurring is why abortion remains so controversial in the country 45 years and counting. Because such issues are polarizing and partisan, they need full discussion in a legislature, as opposed to unelected judges unilaterally short-circuiting the debate. Again: Dobbs, by overturning Roe, did not "ban abortion nationwide in the USA". As one of the justices wrote, all it did was to restore the court's proper silence on the matter and let the states decide. Further, as s1artibartfast told you, it was not true before or after Dobbs that "every other western country has managed to get reasonable abortion rights" (by which you mean, more allowing of abortion than the US, since the US surely is the world's most restrictive on abortion). Let's take Germany as example: * Abortion is always illegal in Germany, because courts have repeatedly found that the fetus has a right to life. (This occurred at almost the same moment as Roe v. Wade.) * However, Section 218 of the criminal code has decriminalized abortion in some circumstances: * Before 12 weeks, with counseling and waiting period. * After 12 weeks, when rape or medical necessity is involved, with approval by two doctors, and possibly counseling and waiting period.

ss108 4y ago

It's not the best, but I don't think it politicizes the judiciary. Appointment of judges by politicians is much more blameworthy in that regard.

philwelch 4y ago

Most developed countries do similar things; it’s just that their human rights laws were written more recently for historic reasons. For instance, the Canadian Charter of Rights and Freedoms was written in 1982 because that’s when Canada rewrote their constitution to more completely break away from British rule, and the European Convention on Human Rights was drafted in 1950, in the immediate post-war era.