The US Constitution - It doesn't help

[shuize]

One problem that many of us have is that so much of "the Constitution" is defined in case law instead of the actual text of the document. The courts, and only the courts, have power to interpret the constitution, but their interpretation can go into minute detail on every aspect of every branch of government. The consequence is that if a public school teacher says something about religion, it might take a Supreme Court ruling to determine whether or not that teacher's comment was legal. That's a pretty uniquely American phenomenon, and it comes from the fact that only in America is the Constitution held to be so powerful, but the power to interpret it is held to rest in the hands of nine individuals. Also as a side effect of that, the Supreme Court gets to be kind of like the "replay judge". (I don't know if that's a metaphor unique to American Football, or not.) After the Congress agrees to a policy, and the President signs it, there's still a chance that it just won't happen, because if the nine members of the Supreme Court find some sort of legal reason for rejecting it, the law will be overturned, and there's no way to overturn a Supreme Court ruling short of a constitutional ammendment, which is very difficult. I think in every other country, the legislature has at least some chance to throw out a court ruling, but in America, there is no such chance.

I think this was a very good answer. But it's worth noting that while the Supreme Court gets the final word on what the Constitution means, they do not decide every constitutional issue. There are 13 Federal Appellate Courts (and 94 federal district courts) that handle most constitutional questions. The Supreme Court has discretionary appellate jurisdiction and, if I remember correctly, usually takes less than 200 of the 10,000 or so requests for review it receives each year.

 

[dtugg]

I, for one am very glad that Congress can't decide to do whatever the **** they want to.

 

[mumblethrax]

Really? Every defense was simply that that's what the Constitution says period? I would have made reference to the model used in establishing the bicameral legislature (the House of Lords and the House of Commons--one less responsive to the polls and one more responsive, though both in the U.S. system definitely democratic), modified to grant a bit more authority to the entities we have called states rather than making them all directly proportional to population.

Far too many of them, yes. A few people attempted "It's called federalism", failing to appreciate that federalism does not imply a malapportioned legislature, or that federalism is not self-justifying.

It's the same old thing--when someone pointed out that Gore got more popular votes than Bush, Bush could always answer that he won more states than Gore did. There's an intentional tension in our federalist system between states rights and the authority of the central government. You could as easily argue that this system is more or less democratic depending on how you want to look at it.

I don't think you could, really. I think it's quite out of step with basic democratic values, which is why it's not constitutional for any other legislative body in the US to be so malapportioned. (The Constitution does, of course, enshrine some important democratic principles).

But that's not what the OP was about, right?

I think it's relevant to the OP. Depends on how you interpret the question, I suppose. But it's common for people outside the US to regard our relationship with the Constitution as a bit strange, and I don't think it's because they don't understand that the Constitution is the supreme law.

 

[JoeTheJuggler]

No it isn't. A common law principle can be well established and yet a simple act of parliament can override it. Even if the government loses it is very easy for them to make sure that they won't again.

But doesn't the judiciary still have the authority to resolve disputes under the new legislation (act of parliament)? I call the system "clunky" because it claims to only make decisions on a case by case basis without actually striking down a law, but the effect is the same.

Again, we only follow EU (and ECHR) rules at the sufferance of a Sovereign parliament.

Yes, right. The parliament agrees to have its supremacy reined in as long as it wishes to be part of the EU.

 

[brodski]

But doesn't the judiciary still have the authority to resolve disputes under the new legislation (act of parliament)?

only insofar as the act allows it. If the act said that actions under the act were not subject to judicial review then the court would have no power of review. Hell, the very same act could even abolish the entire court system.

In practice much of this would create problems under the European Convention of Human Rights, but the act could also remove the UK from that framework.

There would be massive political fallout from doing this of course, but all you would need to pass the bill, process wise, would be a simple majority in the Commons and for either the Lords to play ball or for the bill to be considered either a money bill or a bill which implemented policy as set out in the governing parties election manifesto- in which case the lords would not step in.

 

[JoeTheJuggler]

Far too many of them, yes.

Ah--so it wasn't every one of them--just too many.

I don't think you could, really. I think it's quite out of step with basic democratic values, which is why it's not constitutional for any other legislative body in the US to be so malapportioned. (The Constitution does, of course, enshrine some important democratic principles).

There is only one legislative branch established by the U.S. Constitution. That one bicameral legislature is meant to reflect a federalist system. On the one hand, you want to treat each state sort of as a mini-sovereign nation, but not completely (you can compare this to the Articles of Confederation). So you give each state 2 Senators, but make the number of representatives proportional to population (mostly).

I think your beef is with federalism. We really are a nation composed of states and a nation composed of individual people at the same time.

I think it's relevant to the OP. Depends on how you interpret the question, I suppose. But it's common for people outside the US to regard our relationship with the Constitution as a bit strange, and I don't think it's because they don't understand that the Constitution is the supreme law.

I think the misunderstanding is due to blurring the question of whether we should ask, "Is this law constitutional?" or "Is it a good idea?" (which is a false dichotomy, I hope I've shown) with the idea of venerating the founding fathers. Again, following the rules is just following the rules. It doesn't imply veneration of the first rule makers.

I used Abner Doubleday by design last time. He's the supposed inventor of baseball, but we all know the rules have changed and developed over the years. Following the rules in baseball has more to do with the MLB Commission than it does with Abner Doubleday.

 

[lionking]

Australia has a Constitution. Nobody knows what's in it. It is very rarely mentioned, and I've never seen or heard of a fight over it's contents. Things seem to work okay.

Just saying.

 

[3point14]

Australia has a Constitution. Nobody knows what's in it. It is very rarely mentioned, and I've never seen or heard of a fight over it's contents. Things seem to work okay.

Just saying.

Is it only the US that introduces it (or seems to introduce it) into every political debate?

 

[BobTheCoward]

There is an idea I always liked in these debates about differences in the US and UK that I always liked and I think says something on this debate.

In many other countries there is this concept I believe is called civil society/good order, something like that. It is a concept of people's obligations to society as a whole, and the greater obligations of institutions to the people. I think this is best reflected in certain restrictions on hate speech.

America doesn't really have that concept. We have a very bare bones system of obligations of the individual to society. Further, American institutions have less obligation to meet the needs of people and more to ensure that their powers are within proscribed limits.

 

[dudalb]

I don't understand why the Senate, as long as it is elected by popular vote, is an inherently undemocratic institution,as someone said here.

 

[dtugg]

I don't understand why the Senate, as long as it is elected by popular vote, is an inherently undemocratic institution,as someone said here.

I would guess the reasoning is that each state gets two senators no matter the population of the state. The Senators from California serve 66 times the constituents as the Senators from Wyoming yet they each have equal vote.

 

[Grizzly Adams]

Shouldn't the question be whether it's a good idea for the country, productive, fair, useful and the like?

This should be the secondary concern.

Why does it matter if it's constitutional or not?

Because the Constitution is the law. The highest law in the United States. If we disregard it when it's convenient, why even have laws in the first place then? What restriction do they place on anything if they can be tossed aside like yesterday's hooker?

 

[truethat]

I think one of the confusions might be that people think the United States is a democracy. It is actually a republic and democracy. That's the beauty of the system.

http://www.1215.org/lawnotes/lawnotes/repvsdem.htm


Not sure how good this but here!

http://www.youtube.com/watch?v=H8I9pLmuyyA

 

[mumblethrax]

Ah--so it wasn't every one of them--just too many.

Yes, some people had offered justifications even worse than "It's in the constitution."

There is only one legislative branch established by the U.S. Constitution. That one bicameral legislature is meant to reflect a federalist system. On the one hand, you want to treat each state sort of as a mini-sovereign nation, but not completely (you can compare this to the Articles of Confederation). So you give each state 2 Senators, but make the number of representatives proportional to population (mostly).

There are other legislative branches subject to the constitution, however, and it is in fact unconstitutional for those bodies to even approach the level of malapportionment we see in the Senate. The reasoning in the cases that established this is explicitly democratic, which is why I think it's pretty easy to identify the Senate as an undemocratic (though constitutional) institution.

I think your beef is with federalism. We really are a nation composed of states and a nation composed of individual people at the same time.

Yes, this is what I was told. It's wrong of course--Madison was a federalist, but was opposed to malapportionment of the kind we see in the Senate, and said as much. Nothing about federalism implies equal legislative representation among the states, and we have examples of federalisms that don't do this, so there has to be more to showing that I have a problem with federalism than this. My problem is with undemocratic institutions.

I think the misunderstanding is due to blurring the question of whether we should ask, "Is this law constitutional?" or "Is it a good idea?" (which is a false dichotomy, I hope I've shown) with the idea of venerating the founding fathers. Again, following the rules is just following the rules. It doesn't imply veneration of the first rule makers.

But we don't just follow the rules. Americans, to a significant extent, derive their political values from the rules. I remember having a conversation about this with an otherwise sane American, saying something to the effect of "The constitution is a legal document, not a philosophical treatise" and being told, "No, it's a philosophical treatise." This is the thing that doesn't happen in other countries--it is, as far as I'm aware, a uniquely American phenomenon.

 

[Rogue1stclass]

We venerate the Constitution for the same reason the Japanese venerate samurai, it is a neat thing from our past that we are proud of. You could call it the defining relic of our country, because before that, we were just a bunch of whiny British colonists. If the Constitution had not worked, and worked well, there's a good chance we have come back under British rule and be another commonwealth nation. No offence to any other nation, but we rather like the idea that what we did it by ourselves.

And the Constitution isn't that hard to amend. Look at how many amendments the Progressive Movement managed to get in in the early 20th, including Prohibition, btw, something that almost no one even wanted. In fact, Prohibition is a perfect example of why we don't amend the Constitution a lot. This nutty idea that somehow got passed nearly 100 years ago is permanently enshrined in the supreme law of the land, as is the other amendment we had to pass to get rid of the damn thing. It's embarrassing. It's also kind of cheating.

More seriously, though, because the Constitution is the supreme law of the land, if something is put into the it, the only way to change it is to change the Constitution again. What's more, while it is there, it effects everything done in the country. It's just not something you want to do lightly.

 

[brodski]

I think one of the confusions might be that people think the United States is a democracy. It is actually a republic and democracy. That's the beauty of the system.

http://www.1215.org/lawnotes/lawnotes/repvsdem.htm

Um.
Is there a reason that you've linked to that tripe?
Do you really believe that laws do not apply to individuals in the USA unless they consent to them or unless 100% of a jury convicts?

That whole site appears to be Sovereign Citizen/ FMOTL woo, although to be fair that only becomes really obvious once you get about half way down the page.

 

[lionking]

Um.
Is there a reason that you've linked to that tripe?
Do you really believe that laws do not apply to individuals in the USA unless they consent to them or unless 100% of a jury convicts?

That whole site appears to be Sovereign Citizen/ FMOTL woo, although to be fair that only becomes really obvious once you get about half way down the page.

Oops, an own goal by truethat.

 

[Slayhamlet]

Um.
Is there a reason that you've linked to that tripe?
Do you really believe that laws do not apply to individuals in the USA unless they consent to them or unless 100% of a jury convicts?

That whole site appears to be Sovereign Citizen/ FMOTL woo, although to be fair that only becomes really obvious once you get about half way down the page.

It's immediately obvious on the homepage, however.

 

[brodski]

It's immediately obvious on the homepage, however.

Yes it is, but given how badly designed the site is, I think it's easier to get to any part of the insanity through Google rather than using the site. In which case eth casual observer may not notice the great big flashing neon signs which scream CRAZY!

 

[dtugg]

Um.
Is there a reason that you've linked to that tripe?
Do you really believe that laws do not apply to individuals in the USA unless they consent to them or unless 100% of a jury convicts?

That whole site appears to be Sovereign Citizen/ FMOTL woo, although to be fair that only becomes really obvious once you get about half way down the page.

I didn't read that website, but yeah, 100% of the jury must vote to convict before a person is punished for a crime.