3 ms·
There seems to be a function missing from government. All governments, AFAICT. Legislators change the law (including, rarely, the constitution) — effectively b
by derefr 3y ago
There seems to be a function missing from government. All governments, AFAICT.
Legislators change the law (including, rarely, the constitution) — effectively by applying a hierarchy of "countermanding orders" — to suit the changing interests of the public. Courts interpret the law, but only downstream of legislation. The executive can make regulation and executive orders, but only in agreement with the law.
But at the founding of any given country, something else usually happens: certain rights and laws that are already recognized intuitively become enshrined into the country's constitution. Things are written down into law not as a representation of a shift in public sentiment, but as a recognition of existing sentiment, and the desirability to formalize that sentiment as law to protect it from encroachment by legislation.
Usually, this is done in the form of "representative anarchy": the people who establish a country are the people everyone rallied behind to overthrow the previous country; and because of this, they have very good knowledge of what rights their constituents were demanding that the previous government wasn't giving them.
There's no trivial way to map this "representative anarchy" process of self-evident-rights information-gathering into an equivalent process that would occur within an established continuous government. But that doesn't mean it's impossible.
For example, there could be a government department charged with 1. doing a kind of embedded journalism to figure out what issues "the people" are beginning to care about, that the law's stance on has no clear basis, because those issues were irrelevant when the constitution was enshrined; and then 2. coming up with referrendum-like polls to gather data on said public sentiment; where if the polls indicate a need, then at that point 3. the data will lead to a mandate for a constitutional amendment enshrining the public's desires to be created and put into force, which stands until this has successfully occurred; where 4. it is then up to the legislature and the supreme court to work together to draft the amendment; but 5. the ability to ratify the amendment is not in the hands of the legislature or the courts, but instead, this department will assemble a federal grand jury with participants from all states, which has a veto over each draft, and a congressional-subpoena-like ability to summon and retain the services of arbitrary legal experts to interpret the draft. (In est, this is trying to get as close as possible to having the public write the amendment themselves, with the legislature+courts being forced to "do the hard work" but not having any power over the result.)
But exactly how such a system would work isn't really my point; my point is that there is currently no such system, and that this is perhaps a problem. In fact, it is perhaps the problem — the problem that leads to governments founded with public support increasingly failing to address the interests of the people over time; and so, to governments being overthrown and new countries being founded.
- norir 3y agoI like this idea. A somewhat related idea I've had is that instead of giving the supreme court ultimate power to overrule and/or reinterpret existing legislation they instead would be given power to call a referendum. Each justice would have the ability to attach their own revised version of the law to the referendum and there would be a voting process to determine which version of the law to accept as canonical. This would prevent the kind of situation we have right now where the court is controlled by a minority group that is imposing its views with impunity. So long as there is but one voice on the court that represents the majority public interest, the public can win out (provided elections are free and fair of course). Right now, regardless of where you fall ideologically, it is clear that the structure of the court can be exploited to impose a vision of the country that does not reflect the wishes of most of its citizens. Even those who feel ideologically aligned with the supermajority court should be concerned with the tact they are taking. It's destabilizing and planting the seeds for the institution's demise.
- notahacker 3y agoThe problem with referenda that the function of the Supreme Court isn't writing new laws but settling individual cases according to existing law. The reason why this has wide reaching implications is because other courts are bound to follow its legal arguments as precedents with other cases (and because Supreme Court justices can sometimes rule that a particular law is inconsistent with the constitution, which they do at least in theory with the intent of preserving the constitution rather than creating a new law) The public is clearly not bound to even attempt to be consistent in its opinions from case to case, and if it's all over the place in its verdicts and might well be accepting or rejecting a verdicts for different reasons from the justices (maybe they think the legal arguments about privacy in the original Roe vs Wade were weak but also think women should have an inherent right to abortion that legislators haven't provided them with), it'ś difficult to see how lower courts can be bound by it. There's also a big question of who gets to vote, particularly for the cases where a state law is argued to be in violation of the federal constitution, which tends to be the more controversial ones...
- int_19h 3y ago