We want a judicial system insulated from politics. Otherwise separation of powers doesn't work.
What is your "ideal" constitution?
- Thread starter João III
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We want a judicial system insulated from politics. Otherwise separation of powers doesn't work.
Lexicus
Deity
Such a thing is neither possible nor desirable. You want a judiciary that's politically committed to protecting human rights.
Hows your current mixture of elected and politically appointed judges doing at that?
Lexicus
Deity
If the Supreme Court justices had been elected by a simple majority, things would be a lot better than they are currently. We would certainly not have the 3 Trump-appointed justices on the Court.
The problem with elected judges further down is not that they are elected, but that they are elected by far-right psychos.
Well our courts seem to be doing a better job than yours. I know that from the plans of our government to prevent them blocking governmental decisions and to curtail the role of the ECHR in British law.
You seem to assume that the popular will never favours the right wing. I think thats overoptimistic.
Lexicus
Deity
I admit keeping the right out of meaningful power is something I haven't figured out yet. But I don't think that a very good solution to popular support for the right is to insulate government from popular will. Maybe it is optimistic, but while it's clear that sometimes there is wide popular support for right-wing politicians, I do think that most people are generally opposed to the broader right-wing project to turn the clock back on modern society.
sophie
Break My Heart
You're committing the error of treating the state as an entity outside of and distinct from politics. That an institution is apolitical in essence, and politics are only brought in later by some outside entity, like a mob or a politician. And therefore, the goal is to shield the institution from that process of political invasion. It's the same error that the Framers in this country committed, seeing the goal of a Constitution as taking the greatest pains to insulate the government from the possibility of political interference, and leave the governing to those guided simply by their own personal virtuous moral inclinations, unclouded by outside political entanglements. They failed precisely because of this assumption. The reality is that the state is inherently a political engine, from the outset. It is the amalgamated mass of calcified property and social relations which exists precisely to enforce and maintain those relations. The political is inseparable from the state, in much the same way that the political is inseparable from art and media, because they are designed by political actors, they are run by political actors, and those who run it are themselves chosen by political actors. To "insulate" against this fact is not to remove it, but, rather, to leave it to its own devices; to make it a reflection of those very relations.
Even if you have a judiciary that is perfectly meritocratic, that simply evaluates on the basis of "perfect interpretation of the law" or whatever, you still have to come to the question of whose law are the interpreting, and who decided the criteria upon which "perfect interpretation" is decided. It will be a judiciary wholly committed to protecting the rich against the poor, the propertied against the propertyless, cis men against cis women and trans people, the able bodied against the disabled, and white people against everybody else. It is, in my estimation, the height of fanciful naïveté to pretend otherwise.
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Its the height of naivete IMO to believe that your popularly elected sheriffs, prosecutors and judges have resulted in anything better.
The popular will is often against human rights for the accused, and for quick results and harsh punishments.
João III
King
I'm not sure I understand the precise role you'd like from the judiciary. If they're popularly elected the same as the legislature, aren't voters just going to elect identical ideologies to both branches? Isn't the judiciary likely to just rubber-stamp whatever the legislature passes then? Like I said, perhaps I'm just misunderstanding
sophie
Break My Heart
This example highlights my point. It does not refute it.
A lot of us here are really quite lucky to live in places where somehow we have a good system for picking judges out of competent lawyers. But it's luck, because a lot of it was because people were trying to do a good job. In some ways, it's like a company's Board deciding how much authority they should have and its compensation. Or it's like philosophy professors choosing who gets published. You need good foundational laws that force lawyers to pick the better lawyers to be judges. Otherwise you just end up with the legal equivalent of whatever homeopaths use to decide who gets a Ph.D.
amadeus
Bishop of Bio-Dome
I suspect most modern constitutions in the advanced industrial world pretty much cover all the ground I think I would want in terms of basic protection of liberties and functioning of government.
I wouldn’t load it up with too much because I see constitutions as kind of like the frame to the house, and the laws passed by the legislature as the walls.
At the end of the day, it’s a piece of paper and it’s how people behave that makes a constitution worth anything. Even before Hitler’s appointment as Chancellor in 1933, Germany was already effectively a dictatorship, and it was all constitutional.
I wouldn’t load it up with too much because I see constitutions as kind of like the frame to the house, and the laws passed by the legislature as the walls.
At the end of the day, it’s a piece of paper and it’s how people behave that makes a constitution worth anything. Even before Hitler’s appointment as Chancellor in 1933, Germany was already effectively a dictatorship, and it was all constitutional.
Zardnaar
Deity
Your options are either democracy or not at that point.
The right will win elections even in places with proportional representation.
Human rights reflect the society but you also need some sort of bare minimum with wiggle room.
In the states that's the constitution currently you might need to look at that as a bare minimum.
If you write your values into a constitution that conflicts with large segments of the population you're doing the same thing as the GoP.
Personally I think you need public and private spheres in something like a constitution.
So you need to agree on something or have scenarios where 51% can tell the other 49% what to do in a fundamental level. That's not gonna last.
That's not what I said, though.
EgonSpengler
Deity
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I don't think I like the idea of SCOTUS justices being elected, but I do think that our current Court would be much better if the popular will had been honored in our Presidential elections. George W. Bush nominated Roberts and Alito, and of course Trump nominated Gorsuch, Kavanagh and Barrett. Most of us here won't live long enough to see the damage undone. I have no idea who Al Gore or Hilary Clinton might have appointed, but you'd have to think we wouldn't have many (any?) of the same decisions we've had in the last 20 years. On a podcast I listened to recently, in the aftermath of Dobbs, someone pointed to Citizens United in 2010 as the turning point. If we didn't have the [flipping] electoral college thwarting the will of the people, it's conceivable that every single bad SCOTUS decision of the last 20 years might have gone the other way. So even if we can't come up with a system that reliably keeps the authoritarian right-wingers at bay, merely letting the American people elect their President - even if nothing much else was different - might have prevented a lot of the [garbage]storm we've endured these last two decades.
Cest une pip
Hygro
soundcloud.com/hygro/
When a fraction of the whole self selects, in this case to live among like minded voters, they aren't subjecting themselves to the democracy. At times municipalities and private clubs blur their shared boundary.
There are many amazing public schools, largely in municipal enclaves of rich people inside greater cities. They keep raising their property taxes to fund the schools, which, in addition to the tax, makes the location more valuable, that prices more people out. It makes the public school in large part a private club/school.
Similarly, those with authoritarian inclinations can use the public channel to effectively hire private security to enforce their authority, as a town, breaking the law similarly to literal private enforcers, only without the risk of an actual law enforcement to investigate them, as they are one and the same.
But:
This breaks down the bigger the population gets. On the national level, our democracy has largely been good. Certainly more good policy by policy than those elected to create and enforce those policies, more of the time. And if the total demos is bad, well that's awful, but that's the reality. We could surely as a demos agree on tempering ourselves with layers of government, more or less as we do now, but the current form has largely produced a government to often be conservative, and more reactionary than progressive in my lifetime.
Hygro
soundcloud.com/hygro/
I can see you don't think that.
Lexicus
Deity
The point of the judiciary branch is to enforce the constitution and the law, basically, yes? So, I think it's pretty obvious that the constitution and the law do not have a transcendent meaning that is outside or above history. What this means in practice is that, basically, in the event of disputes about what the constitution and the law mean, the answer is that the interpretation of the majority of citizens should ultimately prevail.
I mean, @AmazonQueen says you need the judiciary to be insulated from popular will because sometimes you need someone to unpopularly affirm the rights of the accused or otherwise stand up for genuinely oppressed minorities.
I don't disagree with that, exactly, but in the US right now we have a judiciary insulated from popular will not only in the sense that a magistrate who can lose the popular vote but still win office appoints them for life, but that all of them are drawn from an elite group that moves through a set of elite institutions (private schools, elite universities, elite clerkships, etc) that deeply alienate them from the experiences of most Americans. And the result seems to be a Supreme Court that is stripping away people's rights left and right. You have the Dobbs decision of course, but then also the Vega v Tekoh decision which is the latest in a long line of cases dating back to the Reagan administration where right-wing federal courts and the Supreme Court have generally eroded the ability of citizens to seek civil relief from police misconduct while at the same time making it more difficult to hold police officers accountable for misconduct using administrative and criminal law.
Most Americans are broadly in favor of police reform, abortion rights, gay marriage etc. so I see a court insulated from popular opinion exploiting that insulation to carry out a right-wing agenda that would never succeed if carried through the federal offices that actually are elected. In any case, far fewer people would feel their rights in danger right now if, across the board, the US government were more responsive to popular will.
Anyway, the role of the judiciary doesn't change in my proposal, it's just that I much more directly subject the judiciary to popular will and ensure that the popular interpretation of the Constitution will prevail over interpretations that privilege elite interests.
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