Expanding the U.S. Supreme Court

Several members of Congress, all of them Democrats, have suggested expanding the U.S. Supreme Court to thirteen seats. Some of this is obviously in response to recent Republican skullduggery in the appointment of Justices. (e.g. gaming the process so that Donald Trump could fill five years worth of vacancies during his four year presidency*) Yet there is an historical precedent. The number of Supreme Court Justices is set by statute, not the U.S. Constitution, and has varied throughout American history. At the beginning of the republic there were six Supreme Court Justices. This number grew gradually to ten in the Lincoln administration before being bumped back down to seven in 1866 and then back up to nine in 1869, which is where it's been ever since. Traditionally there have been a number of seats equal to the number of appeals courts circuits in the federal judiciary and at present there are thirteen circuits. (Eleven numbered circuits plus the DC circuit and the federal circuit.) It also seems that a problem with a political origin (Republicans have won the popular vote in two of the last nine presidential elections yet have made seven of the eleven Supreme Court appointments in that time, including six of the nine currently serving Justices) is appropriately solved with a political solution (Congress using the powers granted it under the Constitution to check and balance a judiciary out of sync with America).

The main objections to this are that it would make the high court political or partisan. (Those are not the same thing.) For the former, since law is the outworking of politics a body that interprets the law will necessarily be political. This is especially so for a body like the U.S. Supreme Court. Legal questions with clear and easy answers don't get appealed all the way to the Supreme Court. By its nature, the questions it's addressing usually have at least two plausible interpretations under law.

As for partisanship, the selection process for Justices is inherently partisan already. Presidents have a clear idea what agenda they'd like to pursue when appointing Justices and Senators have similar notions when considering whether to approve such appointments. It's a polite fiction that Justices aren't selected for partisan reasons and don't have partisan agendas, but a polite fiction is still fiction.

Thoughts?
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Comments

  • CaissaCaissa Shipmate
    Expand the number of justices and require them to retire at 75 like Canada.
  • tclunetclune Shipmate
    The big problem with the court to my mind is that it is a fundamentally undemocratic way to make law. If the other branches were functional, it would not be required for the court to ensure a woman's access to a safe abortion, provide a basic framework for civil rights, make basic gun control part of the law of the land, etc. Once the other branches of government have become so unmoored from the will of the majority that these things cannot be legislated, there is no good way to have that function taken over by the courts. We are seeing the results of the failure of our entire form of government. Blaming the courts for this collapse and trying to undo the tide of history by throwing a few more individuals onto the least representative branch just seems like a fool's errand to me.
  • Caissa wrote: »
    Expand the number of justices and require them to retire at 75 like Canada.

    Requiring retirement would probably require a Constitutional amendment since Art. III, § 1 states Supreme Court Justices "shall hold their Offices during good Behaviour". In other words the only way to remove existing Justices is impeachment. In past court shrinkages the number of judges was decreased by attrition, sometimes enacted solely so a specific president (e.g. Andrew Johnson) wouldn't be able to appoint Justices.

    One possible way around this is to specify that any Justice over the age of 75 must take "senior status", which is a form of semi-retirement where they're technically still on the court but don't hear en banc cases. Most people don't realize that Sandra Day O'Connor did not retire from the Supreme Court, she took senior status. Occasionally she would still hear cases at the appellate court level, which is permissible for Supreme Court Justices on senior status. She finally fully retired in 2018, twelve years after most of the public thought she retired.

    At present the only Justice over 75 is Stephen Breyer, though Clarence Thomas is close.
    tclune wrote: »
    The big problem with the court to my mind is that it is a fundamentally undemocratic way to make law.

    There are numerous anti-majoritarian structures built into the American government. For example, the electoral college and the malapportionment of the U.S. Senate are obvious examples, and ones that have contributed significantly to the current skewing of the high court. I would argue that the fact that other fixes would also be good ideas is not a reason that a different fix isn't itself a good idea.
  • Caissa wrote: »
    Expand the number of justices and require them to retire at 75 like Canada.
    The latter part would require a constitutional amendment, barring the possible work-arounds that @Crœsos mentions, as would one of the other proposals I’ve heard: set terms for members of the Court, staggered such that two (or some other number) terms end during every presidential term. This would generally and theoretically avoid the problem of, for example, Clinton getting two nominations and Obama getting three nominations (two of whom made it to the Court, and one of whom the Senate would not consider) during their eight years as president, while Trump got three nominees during his four years as president.

    I’m not opposed to increasing the number on the Court per se, but I wonder if it would be a short-term, and perhaps short-sighted, solution. The GOP will just increase the numbers again when they’re in complete control and get to nominate and confirm all the new justices.

    Meanwhile, I think McConnell’s protocol that prevented Merrick Garland from getting a confirmation hearing but allowed Amy Coney Barrett to get confirmed is a huge problem. The Senate confirmation procedure needs reform.

  • Nick Tamen wrote: »
    I’m not opposed to increasing the number on the Court per se, but I wonder if it would be a short-term, and perhaps short-sighted, solution. The GOP will just increase the numbers again when they’re in complete control and get to nominate and confirm all the new justices.

    Meanwhile, I think McConnell’s protocol that prevented Merrick Garland from getting a confirmation hearing but allowed Amy Coney Barrett to get confirmed is a huge problem. The Senate confirmation procedure needs reform.

    Well yes. The current "system" seems to be that Republican presidents can fill Supreme Court vacancies but Democratic presidents cannot unless the Democrats also control the Senate. This is one of those situations where unilateral disarmament is not a solution. Republicans will continue hold Supreme Court seats hostage as long as that is a viable political strategy for them. Expanding the court is one way to change that.
  • The court is inherently political and partisan. The latter is one of the largest fuckups in the Constitution: the lack to foresee the rise of political parties (the FF, or at least Jefferson, hated them and kind of hoped they'd go away), and not make provisions to stave off the most deleterious effects thereof. So we have "balance of powers" between president and Congress, but nothing to balance powers when the same political party has captured both. We need to exhume Jefferson, beat the shit out of him, and bury him again.
  • mousethief wrote: »
    The court is inherently political and partisan. The latter is one of the largest fuckups in the Constitution: the lack to foresee the rise of political parties (the FF, or at least Jefferson, hated them and kind of hoped they'd go away), and not make provisions to stave off the most deleterious effects thereof. So we have "balance of powers" between president and Congress, but nothing to balance powers when the same political party has captured both. We need to exhume Jefferson, beat the shit out of him, and bury him again.

    Yeah, but the Supremes would declare it cruel and unusual. You can fix the second part by finding some more dead people to blame, if you like.
  • I was intending an extralegal raid, not a law that could be struck down.
  • tclunetclune Shipmate
    mousethief wrote: »
    We need to exhume Jefferson, beat the shit out of him, and bury him again.
    I am aware of Jefferson having a central role in the Declaration of Independence, but I've always assumed that the authors of the Federalist Papers were more central to the design and passage of the Constitution. Am I wrong on this?
  • mousethief wrote: »
    I was intending an extralegal raid, not a law that could be struck down.

    Ah, Extrajudicial Exhumation. I was thinking more along the lines of the (alleged) trial of Thomas à Becket or Oliver Cromwell.
  • tclune wrote: »
    mousethief wrote: »
    We need to exhume Jefferson, beat the shit out of him, and bury him again.
    I am aware of Jefferson having a central role in the Declaration of Independence, but I've always assumed that the authors of the Federalist Papers were more central to the design and passage of the Constitution. Am I wrong on this?

    You may be right. In my blind fury I picked the wrong victim. Good thing he's dead.
  • tclune wrote: »
    mousethief wrote: »
    We need to exhume Jefferson, beat the shit out of him, and bury him again.
    I am aware of Jefferson having a central role in the Declaration of Independence, but I've always assumed that the authors of the Federalist Papers were more central to the design and passage of the Constitution. Am I wrong on this?

    You're mostly right. Jefferson was off being ambassador to France at the time the Constitution was drafted. It was the work of committees so there's no single pen that can be given all the credit, though Jefferson's protégé James Madison is often referred to as the "Father of the Constitution" for his role in pushing for the Constitutional Convention and guiding the various committees thereof. He also wrote some of the Federalist Papers, along with Alexander Hamilton and John Jay.

    Despite Jefferson's supposed dislike of political parties ("faction" in the terminology of the Federalist Papers) he headed a political party himself and his partisan shenanigans around the election of 1800 is what led to the adoption of the Twelfth Amendment, which was drafted more or less to recognize the likely partisan framework of American democracy going forward.
    mousethief wrote: »
    I was intending an extralegal raid, not a law that could be struck down.
    Ah, Extrajudicial Exhumation. I was thinking more along the lines of the (alleged) trial of Thomas à Becket or Oliver Cromwell.

    Pope Formosus?
  • Just go for a parliamentary system, or French semi-presidential system if you must and there, problem solved.
  • Yeah, that should be easy enough.

  • I thought it was George Washington who hated political parties, and inveighed against them in his farewell speech. Jefferson I've always associated with the Democratic-Republican Party, which was more-or-less ancestral to our present-day Democrats.
  • stetson wrote: »
    I thought it was George Washington who hated political parties, and inveighed against them in his farewell speech.

    There was a generalized distrust of political parties among the elites who framed the U.S. Constitution. Washington was, famously, the only American president who was not formally a member of a political party. That said, the realities of single seat plurality elections dictates that exactly two major political parties can exist at one time and everyone other than Washington has resigned themselves to this structural necessity sometime around the early-to-mid-1790s.
  • Meh. Canada has been telling Duverger he's flat wrong since 1920.
  • Gee DGee D Shipmate
    Caissa wrote: »
    Expand the number of justices and require them to retire at 75 like Canada.

    When our High Court was established, there were 3 Justices. That was soon increased to 5, and only a half dozen or so years to 7. Originally there was life tenure, but there was a constitutional amendment in 1977 fixing 70 as a compulsory retirement age (with no retrospective effect on existing appointments). That was brought about largely to prevent a repetition of the career of Justice McTiernan, appointed at age 38 and not retiring until some real nastiness from Chief Justice Barwick forced him to when he was aged 84.
  • KwesiKwesi Shipmate
    Croesos.... the realities of single seat plurality elections dictates that exactly two major political parties can exist at one time

    Sober Preacher's Kid: Meh. Canada has been telling Duverger he's flat wrong since 1920.

    Not only Canada, but also the UK since 1886, and no doubt others.

    Duverger may be right in suggesting that FPTP in single member districts encourages a tendency towards two-party competition in each constituency (district)- I emphasise 'encourages' rather than 'determines' or 'necessitates', but it cannot help to explain why it should be the same two parties that dominate in (nearly?) all constituencies. Explanations of the two-party system in the United States cannot be explained by presence of "single seat plurality elections".
  • Kwesi wrote: »
    Duverger may be right in suggesting that FPTP in single member districts encourages a tendency towards two-party competition in each constituency (district)- I emphasise 'encourages' rather than 'determines' or 'necessitates', but it cannot help to explain why it should be the same two parties that dominate in (nearly?) all constituencies. Explanations of the two-party system in the United States cannot be explained by presence of "single seat plurality elections".

    Probably a product of the U.S. federal system and the existence of a strong presidency. Note the example of the Progressives, the most successful third party to date in the American system. They mostly succeeded in winning elections in areas where one of the two major parties was vestigial, having little to no on-the-ground presence. In other words they won where they did by running as a second party in what had become one-party constituencies.

    My guess is that the reason American political parties are national rather than regional in scope is that the presidency makes the U.S. a single "constituency" every four years. A strictly regional party would automatically give up being able to contend successfully for one of the three branches of the federal government. That's a pretty big political disadvantage.
  • Crœsos wrote: »

    My guess is that the reason American political parties are national rather than regional in scope is that the presidency makes the U.S. a single "constituency" every four years. A strictly regional party would automatically give up being able to contend successfully for one of the three branches of the federal government. That's a pretty big political disadvantage.

    I'm not so sure. I think it's possible to imagine an alternate history in which the electoral college isn't quite so vestigial as in this timeline, where a regional party regularly elects, say, 20% of electors and plays kingmaker to whichever candidate promises them the most. Basically do what the DUP did for Theresa May after the 2017 election. Of course it's trickier because the president doesn't have full control in the way the PM does, and equally could renege on their promises without the regional party have any leverage to discourage them.
  • CrœsosCrœsos Shipmate
    edited October 2021
    Crœsos wrote: »
    My guess is that the reason American political parties are national rather than regional in scope is that the presidency makes the U.S. a single "constituency" every four years. A strictly regional party would automatically give up being able to contend successfully for one of the three branches of the federal government. That's a pretty big political disadvantage.
    I'm not so sure. I think it's possible to imagine an alternate history in which the electoral college isn't quite so vestigial as in this timeline, where a regional party regularly elects, say, 20% of electors and plays kingmaker to whichever candidate promises them the most.

    That tends to not work out too well for those who try it. The most obvious failure of this strategy is the election of 1860 where 60% of the popular ballots were cast for not!Lincoln but were divided among three different candidates. Even if we assume a counterfactual where not!Lincoln voters were unified at the state level (i.e. all the not!Lincoln votes in a state were given to a single candidate) that still only provides enough votes to drop California (4) and Oregon (3) from Lincoln's electoral vote count, leaving him with 173 electoral votes in a contest that required 152 electoral votes for victory. A similar dynamic was at work in the election of 1912, though in that case vote splitting at the state level did in fact cost Taft a second term.

    The biggest problem with the electoral college playing kingmaker is that they don't meet as a single body so the ability to dealmake and conspire is limited.
  • KwesiKwesi Shipmate
    I think it important to emphasise, especially in the historical context, that US Presidential elections only become fully national at the level of the electoral college, and that the methods of choosing electors has differed between the states. In a number of Southern states, for example, the party nominee for the presidency did not appear on the ballot, so that in 1948 it was not possible to cast a ballot for electors pledged to Truman, and that as late as 1960 in one Southern state, (I think Alabama), fewer than half the Democrat slate of electors were pledged to Kennedy. Rules governing ballot access still vary from one state to another as does the franchise, despite Voting Rights Acts. The 'popular vote' in the November election of electors is more popularly based in some states than others. Then there is the question of the nature of political parties, which in the USA is very different from those in Europe................
  • CaissaCaissa Shipmate
    Canada has successfully had more than a 2 party system while retaining FPTP. Some of these parties have been regional protest parties (Reform, Bloc Quebecois, Social Credit.) While none have taken power federally some have formed provincial governments.
  • Martin54Martin54 Suspended
    edited October 2021
    Oh, to be in England. Ah! But I am! Where the judiciary isn't tainted with party politics or the other grubbiness of 'trade'. England, the most subtly corrupt country on Earth. France doesn't do so badly either. Wonder what a decent technocracy like Germany does?
  • Martin54 wrote: »
    Oh, to be in England. Ah! But I am! Where the judiciary isn't tainted with party politics or the other grubbiness of 'trade'. England, the most subtly corrupt country on Earth. France doesn't do so badly either. Wonder what a decent technocracy like Germany does?

    The English legal system is heavily tainted with classism, from top to bottom. Laws are made by rich landowners to keep the poor in their place. Judges are very heavily drawn from the upper-middle, privately educated class. It's not 'party politics' per se, but it tends to represent a certain world-view that's less found in working class communities of whatever colour.
  • tclune wrote: »
    The big problem with the court to my mind is that it is a fundamentally undemocratic way to make law. If the other branches were functional, it would not be required for the court to ensure a woman's access to a safe abortion, provide a basic framework for civil rights, make basic gun control part of the law of the land, etc. Once the other branches of government have become so unmoored from the will of the majority that these things cannot be legislated, there is no good way to have that function taken over by the courts. We are seeing the results of the failure of our entire form of government. Blaming the courts for this collapse and trying to undo the tide of history by throwing a few more individuals onto the least representative branch just seems like a fool's errand to me.

    Technically, SCOTUS does not make law. It interprets the law on the basis of the Constitution. Sometimes, they do, in effect, make law. For instance, there is no specific clause in the Constitution guaranteeing the right of privacy, though the Court says the weight of the constitution implies the right of privacy.

  • Doc Tor wrote: »
    Martin54 wrote: »
    Oh, to be in England. Ah! But I am! Where the judiciary isn't tainted with party politics or the other grubbiness of 'trade'. England, the most subtly corrupt country on Earth. France doesn't do so badly either. Wonder what a decent technocracy like Germany does?

    The English legal system is heavily tainted with classism, from top to bottom. Laws are made by rich landowners to keep the poor in their place. Judges are very heavily drawn from the upper-middle, privately educated class. It's not 'party politics' per se, but it tends to represent a certain world-view that's less found in working class communities of whatever colour.

    Couldn't agree more, hence my comment on corruption.
  • RicardusRicardus Shipmate
    edited October 2021
    Kwesi wrote: »
    Croesos.... the realities of single seat plurality elections dictates that exactly two major political parties can exist at one time

    Sober Preacher's Kid: Meh. Canada has been telling Duverger he's flat wrong since 1920.

    Not only Canada, but also the UK since 1886, and no doubt others.

    Duverger may be right in suggesting that FPTP in single member districts encourages a tendency towards two-party competition in each constituency (district)- I emphasise 'encourages' rather than 'determines' or 'necessitates', but it cannot help to explain why it should be the same two parties that dominate in (nearly?) all constituencies. Explanations of the two-party system in the United States cannot be explained by presence of "single seat plurality elections".

    I would guess that the massive size of congressional districts relative to Westminster constituencies plays a part - the average congressional district has a population of 329.5M / 435 = 757K, versus 67.2M / 650 = 104K in the UK, i.e. US seats are roughly seven times larger, so in order to win a plurality in any one seat, a US third party has to win a much larger absolute number of voters over a much wider area. To put it another way: for the Libertarians or Greens to get a seat in the House of Representatives would be similar* to the Lib-Dems or Plaid Cymru winning seven geographically contiguous seats in the House of Commons.


    * Anti-pedant caveat: Not exactly the same as, but a similar level of difficulty.
  • Ricardus wrote: »
    Kwesi wrote: »
    Croesos.... the realities of single seat plurality elections dictates that exactly two major political parties can exist at one time

    Sober Preacher's Kid: Meh. Canada has been telling Duverger he's flat wrong since 1920.

    Not only Canada, but also the UK since 1886, and no doubt others.

    Duverger may be right in suggesting that FPTP in single member districts encourages a tendency towards two-party competition in each constituency (district)- I emphasise 'encourages' rather than 'determines' or 'necessitates', but it cannot help to explain why it should be the same two parties that dominate in (nearly?) all constituencies. Explanations of the two-party system in the United States cannot be explained by presence of "single seat plurality elections".

    I would guess that the massive size of congressional districts relative to Westminster constituencies plays a part - the average congressional district has a population of 329.5M / 435 = 757K, versus 67.2M / 650 = 104K in the UK, i.e. US seats are roughly seven times larger, so in order to win a plurality in any one seat, a US third party has to win a much larger absolute number of voters over a much wider area. To put it another way: for the Libertarians or Greens to get a seat in the House of Representatives would be similar* to the Lib-Dems or Plaid Cymru winning seven geographically contiguous seats in the House of Commons.


    * Anti-pedant caveat: Not exactly the same as, but a similar level of difficulty.

    Or the SNP, who could easily achieve that.
  • KwesiKwesi Shipmate
    Ricardus: I would guess that the massive size of congressional districts relative to Westminster constituencies plays a part

    Agreed, but I think the observations need to be somewhat refined. Regarding smaller and weaker parties, plurality systems with single member constituencies favour (a) those with geographically concentrated clusters of support, so that they benefit from a greater number of sub-divisions, and (b) smaller absolute numbers of electors in each sub-division however numerous are the constituencies or districts. Thus, congressional districts are more likely to produce more minority diversity than the senate, even taking into account gerrymandering! Respecting the presidency, of course, the one winner takes all.
  • KwesiKwesi Shipmate
    Regarding the court, it's difficult to reconcile its role with democratic principles, because it's based on the premise that citizens have fundamental rights that governments cannot abrogate. To my mind the Warren court, whose actions I admire, was no less problematic in terms of democratic values than the present one, whose performance I deplore.

    Whether it was originally envisaged the court would develop in the way it did rather than operating in a manner similar to the UK House of Lords in its judicial capacity has been a matter of dispute, but the influence of John Marshall ensured a more imperious trajectory.
  • CrœsosCrœsos Shipmate
    edited October 2021
    Kwesi wrote: »
    Regarding the court, it's difficult to reconcile its role with democratic principles, because it's based on the premise that citizens have fundamental rights that governments cannot abrogate.

    Liberal democracies have that premise, but the idea of individual liberties which governments should not abrogate is more a function of liberalism than democracy. Not all democracies are liberal democracies.
    Kwesi wrote: »
    To my mind the Warren court, whose actions I admire, was no less problematic in terms of democratic values than the present one, whose performance I deplore.

    Whether it was originally envisaged the court would develop in the way it did rather than operating in a manner similar to the UK House of Lords in its judicial capacity has been a matter of dispute, but the influence of John Marshall ensured a more imperious trajectory.

    Part of the problem of postulating unalienable rights is coming up with some kind of mechanism for preventing the state from alienating its people from those rights. The American solution was divided government. So yes, the Supreme Court is an anti-democratic institution by design because if you can democratically abrogate the terms of the Constitution why bother having Constitution or formally defined rights at all?
  • Crœsos wrote: »
    Part of the problem of postulating unalienable rights is coming up with some kind of mechanism for preventing the state from alienating its people from those rights. The American solution was divided government. So yes, the Supreme Court is an anti-democratic institution by design because if you can democratically abrogate the terms of the Constitution why bother having Constitution or formally defined rights at all?

    Though ISTM the problem is not so much inalienable rights per se - an idea which may be antidemocratic but which at least makes sense on its own terms - but rather 'inalienable' rights that can in fact be created or destroyed by judicial interpretation, which seems like a contradiction in terms.
  • Ricardus wrote: »
    Kwesi wrote: »
    Croesos.... the realities of single seat plurality elections dictates that exactly two major political parties can exist at one time

    Sober Preacher's Kid: Meh. Canada has been telling Duverger he's flat wrong since 1920.

    Not only Canada, but also the UK since 1886, and no doubt others.

    Duverger may be right in suggesting that FPTP in single member districts encourages a tendency towards two-party competition in each constituency (district)- I emphasise 'encourages' rather than 'determines' or 'necessitates', but it cannot help to explain why it should be the same two parties that dominate in (nearly?) all constituencies. Explanations of the two-party system in the United States cannot be explained by presence of "single seat plurality elections".

    I would guess that the massive size of congressional districts relative to Westminster constituencies plays a part - the average congressional district has a population of 329.5M / 435 = 757K, versus 67.2M / 650 = 104K in the UK, i.e. US seats are roughly seven times larger, so in order to win a plurality in any one seat, a US third party has to win a much larger absolute number of voters over a much wider area. To put it another way: for the Libertarians or Greens to get a seat in the House of Representatives would be similar* to the Lib-Dems or Plaid Cymru winning seven geographically contiguous seats in the House of Commons.


    * Anti-pedant caveat: Not exactly the same as, but a similar level of difficulty.

    Or the SNP, who could easily achieve that.

    True - but I think their leap from 6 MPs to 56 MPs required a huge amount of effort on their part, plus a happy conjunction of other factors falling into place at the right time.
  • Ricardus wrote: »
    Though ISTM the problem is not so much inalienable rights per se - an idea which may be antidemocratic but which at least makes sense on its own terms - but rather 'inalienable' rights that can in fact be created or destroyed by judicial interpretation, which seems like a contradiction in terms.

    One of the objections James Madison had to including a Bill of Rights in the U.S. Constitution was his worry that by spelling out specific rights some later generation would use the document to conclude that those were the only rights possessed by individuals under American law. For example, arguing that since "there is no specific clause in the Constitution guaranteeing the right of privacy" such a right must not exist. Madison's solution to this, once he was convinced of the Bill of Rights' necessity, was the Ninth Amendment.
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    In other words, there is room to debate within a judicial framework what the parameters of these unenumerated rights are. Insisting that the only rights possessed under the U.S. Constitution are those that are specifically enumerated is to read the Constitution in a way that the Constitution itself tells us it shouldn't be read.
  • KwesiKwesi Shipmate
    Croesos
    Kwesi »
    Regarding the court, it's difficult to reconcile its role with democratic principles, because it's based on the premise that citizens have fundamental rights that governments cannot abrogate.

    Croesos:Liberal democracies have that premise, but the idea of individual liberties which governments should not abrogate is more a function of liberalism than democracy. Not all democracies are liberal democracies.

    I have no reason to disagree that "Not all democracies are liberal democracies", but those which are do not have the same constitutional arrangements. In the UK, for example, "the rule of law" concentrates on proper process rather than the recognition of fundamental rights trumping the will of parliament. Perhaps the UK is more democratic than the US but less liberal.
  • EnochEnoch Shipmate
    Kwesi wrote: »
    Croesos
    Kwesi »
    Regarding the court, it's difficult to reconcile its role with democratic principles, because it's based on the premise that citizens have fundamental rights that governments cannot abrogate.

    Croesos:Liberal democracies have that premise, but the idea of individual liberties which governments should not abrogate is more a function of liberalism than democracy. Not all democracies are liberal democracies.

    I have no reason to disagree that "Not all democracies are liberal democracies", but those which are do not have the same constitutional arrangements. In the UK, for example, "the rule of law" concentrates on proper process rather than the recognition of fundamental rights trumping the will of parliament. Perhaps the UK is more democratic than the US but less liberal.
    I'm with @Crœsos on this one. There's no way that being 'democratic' is specially more virtuous than being, say 'liberal' or 'just'. Some of the most tyrannical states as experienced by those who had the misfortune to live in them have proudly proclaimed themselves as 'peoples' democracies' and by their definitions were democracies.

    Besides, one of the most important markers of any civilised state is that its constitution and its political establishment, both in theory and in practice, provide proper protection for the interests of minorities from the tyranny of the will of the majority. In even the best polities, this produces tension. Nevertheless, if any person's political or constitutional ideology doesn't recognise that, then as far as I am concerned, it not only has no value. It is pernicious.

    As I see it, that has to acknowledge by some means that there are certain rights that are so fundamental that the will of the majority cannot abrogate them. There will be disagreement as to which these are, and where the boundaries are, but otherwise, you are saying that if the elected legislature enacts that X shall die or all Ys shall be exterminated, there's no reason why it shouldn't. X or the Ys should roll over and accept it.

  • Crœsos wrote: »
    Ricardus wrote: »
    Though ISTM the problem is not so much inalienable rights per se - an idea which may be antidemocratic but which at least makes sense on its own terms - but rather 'inalienable' rights that can in fact be created or destroyed by judicial interpretation, which seems like a contradiction in terms.

    One of the objections James Madison had to including a Bill of Rights in the U.S. Constitution was his worry that by spelling out specific rights some later generation would use the document to conclude that those were the only rights possessed by individuals under American law. For example, arguing that since "there is no specific clause in the Constitution guaranteeing the right of privacy" such a right must not exist. Madison's solution to this, once he was convinced of the Bill of Rights' necessity, was the Ninth Amendment.
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    In other words, there is room to debate within a judicial framework what the parameters of these unenumerated rights are. Insisting that the only rights possessed under the U.S. Constitution are those that are specifically enumerated is to read the Constitution in a way that the Constitution itself tells us it shouldn't be read.

    The tension I see in this - and tbh I'm not sure there exists a system that resolves it - is that if Madison is confident he has a 100% grasp on what constitutes an inalienable right, then why not enumerate all of them, and if he isn't sure, then how can he be confident about the ones he has enumerated?
  • KwesiKwesi Shipmate
    I am pretty much in sympathy with your sentiments, Enoch, though it might be pointed out that in the United Kingdom, which might claim to be a liberal democracy, political power operates under the principle of the sovereignty of parliament, against whose will there is no defence. I can see how the democratic principle is reflected in a popularly election lower house, but for the life of me I struggle to find the liberal guarantee.
  • CrœsosCrœsos Shipmate
    edited October 2021
    Ricardus wrote: »
    Crœsos wrote: »
    One of the objections James Madison had to including a Bill of Rights in the U.S. Constitution was his worry that by spelling out specific rights some later generation would use the document to conclude that those were the only rights possessed by individuals under American law. For example, arguing that since "there is no specific clause in the Constitution guaranteeing the right of privacy" such a right must not exist. Madison's solution to this, once he was convinced of the Bill of Rights' necessity, was the Ninth Amendment.
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    In other words, there is room to debate within a judicial framework what the parameters of these unenumerated rights are. Insisting that the only rights possessed under the U.S. Constitution are those that are specifically enumerated is to read the Constitution in a way that the Constitution itself tells us it shouldn't be read.
    The tension I see in this - and tbh I'm not sure there exists a system that resolves it - is that if Madison is confident he has a 100% grasp on what constitutes an inalienable right, then why not enumerate all of them, and if he isn't sure, then how can he be confident about the ones he has enumerated?

    It seems like Madison was confident he didn't have a 100% grasp on what constitutes the full set of rights, unalienable or otherwise. One of the features of the U.S. Constitution is its assumption of the fallibility of its Framers, hence things like the Ninth Amendment or the ability to add amendments to the Constitution. They assumed that there would be things that they overlooked or got wrong. Since the Madisonian Constitutional order eventually failed in a hail of artillery fire over Fort Sumter this assumption seems to have been justified.

    Another feature that exists in recognition of this is that the Bill of Rights isn't so much an enumeration of rights possessed by the people as it is a list of restrictions on actions the federal government can take. For example, the First Amendment starts out "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . . ". In narrowest technical terms this is a restriction against Congress taking certain actions. By implication we infer an individual right to freedom of religious belief, but that is nowhere explicitly stated in the First Amendment.

    In other words, the American approach to individual rights isn't so much a list of enumerated rights of individuals but rather a list of actions either explicitly authorized or forbidden to the state. From the shape of these restrictions and authorized powers we can infer the rights being protected.
  • EnochEnoch Shipmate
    Kwesi wrote: »
    I am pretty much in sympathy with your sentiments, Enoch, though it might be pointed out that in the United Kingdom, which might claim to be a liberal democracy, political power operates under the principle of the sovereignty of parliament, against whose will there is no defence. I can see how the democratic principle is reflected in a popularly election lower house, but for the life of me I struggle to find the liberal guarantee.
    I agree @Kwesi. The United Kingdom has a very weak claim to be either liberal or democratic. That reputation in the past has rested on politicians in the past recognising restraints that were neither systemic not enforceable.

    Furthermore, its electoral system means that the lower house has no legitimate claim to representing popular sovereignty. It's a mockery of that very concept that several times in my lifetime, the public's limited protection from parliamentary dictatorship has depended on the unelected House of Lords or the courts holding the government to judicial review, which is at its heart a procedural process, not one that deals in fundamentals.

    That is why the scoundrels that suppurate at the top of our system are so keen to limit its scope.
  • KwesiKwesi Shipmate
    Enoch Furthermore, its electoral system means that the lower house has no legitimate claim to representing popular sovereignty.

    Of course, the sovereignty of parliament is not an expression of popular sovereignty. That the lower house is elected by a system based on adult suffrage is a function of its power to determine how it is to be composed not a basic constitutional requirement. I guess the foundations are neither liberal nor democratic, even if it is a liberal democracy.
  • RuthRuth Shipmate
    Enoch wrote: »
    Besides, one of the most important markers of any civilised state is that its constitution and its political establishment, both in theory and in practice, provide proper protection for the interests of minorities from the tyranny of the will of the majority. In even the best polities, this produces tension. Nevertheless, if any person's political or constitutional ideology doesn't recognise that, then as far as I am concerned, it not only has no value. It is pernicious.

    This is of course very important. The thing is, in the US a political minority has figured out how to exploit the protections afforded to it, and we're on our way to a minority rule that will be very hard to unwind if the Republicans win the 2022 and 2024 elections. Hence the discussion of enlarging the Supreme Court.

    Meanwhile, racial and ethnic minorities have never been well protected in the US.
  • Crœsos wrote: »
    Ricardus wrote: »
    Crœsos wrote: »
    One of the objections James Madison had to including a Bill of Rights in the U.S. Constitution was his worry that by spelling out specific rights some later generation would use the document to conclude that those were the only rights possessed by individuals under American law. For example, arguing that since "there is no specific clause in the Constitution guaranteeing the right of privacy" such a right must not exist. Madison's solution to this, once he was convinced of the Bill of Rights' necessity, was the Ninth Amendment.
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    In other words, there is room to debate within a judicial framework what the parameters of these unenumerated rights are. Insisting that the only rights possessed under the U.S. Constitution are those that are specifically enumerated is to read the Constitution in a way that the Constitution itself tells us it shouldn't be read.
    The tension I see in this - and tbh I'm not sure there exists a system that resolves it - is that if Madison is confident he has a 100% grasp on what constitutes an inalienable right, then why not enumerate all of them, and if he isn't sure, then how can he be confident about the ones he has enumerated?

    It seems like Madison was confident he didn't have a 100% grasp on what constitutes the full set of rights, unalienable or otherwise. One of the features of the U.S. Constitution is its assumption of the fallibility of its Framers, hence things like the Ninth Amendment or the ability to add amendments to the Constitution.

    My impression is that the Constitution is in practice virtually impossible to amend - wth the effect that instead of trying to add xyz explicitly to the Constitution, a great deal of political effort is expended in appointing judges who will interpret the Constitution such that it means xyz.

    I'm guessing the Framers never meant for it to be so hard to amend?
  • Dave WDave W Shipmate
    Well, they specified the procedure for amending it, and that procedure itself hasn’t been amended, so in some sense (at least) isn’t it exactly as hard to amend as they intended? It was amended 12 times in the 20th century - the last time in 1992, when an amendment originally proposed in 1789 was finally ratified by enough states.
  • Gee DGee D Shipmate
    I'm surprised that it's been amended that much - but I suppose that there was the Prohibition and then its repeal. Very few amendments get through here, but the procedure rather strangely is different to that in the US. We need what is called a double majority. That's a majority of electors overall and then a a majority of electors in a majority of States.
  • Ricardus wrote: »
    Crœsos wrote: »
    Ricardus wrote: »
    Crœsos wrote: »
    One of the objections James Madison had to including a Bill of Rights in the U.S. Constitution was his worry that by spelling out specific rights some later generation would use the document to conclude that those were the only rights possessed by individuals under American law. For example, arguing that since "there is no specific clause in the Constitution guaranteeing the right of privacy" such a right must not exist. Madison's solution to this, once he was convinced of the Bill of Rights' necessity, was the Ninth Amendment.
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    In other words, there is room to debate within a judicial framework what the parameters of these unenumerated rights are. Insisting that the only rights possessed under the U.S. Constitution are those that are specifically enumerated is to read the Constitution in a way that the Constitution itself tells us it shouldn't be read.
    The tension I see in this - and tbh I'm not sure there exists a system that resolves it - is that if Madison is confident he has a 100% grasp on what constitutes an inalienable right, then why not enumerate all of them, and if he isn't sure, then how can he be confident about the ones he has enumerated?

    It seems like Madison was confident he didn't have a 100% grasp on what constitutes the full set of rights, unalienable or otherwise. One of the features of the U.S. Constitution is its assumption of the fallibility of its Framers, hence things like the Ninth Amendment or the ability to add amendments to the Constitution.

    My impression is that the Constitution is in practice virtually impossible to amend - wth the effect that instead of trying to add xyz explicitly to the Constitution, a great deal of political effort is expended in appointing judges who will interpret the Constitution such that it means xyz.

    I'm guessing the Framers never meant for it to be so hard to amend?

    I think the goal was to amend it when there was consensus about something that was obviously missing or not working. The 25th amendment is a good example, where it was widely recognised that there needed to be some mechanism if the President was incapacitated but not dead, and further a means to fill the vice-presidency should it become vacant. It was passed pretty easily and quickly.

    Making constitutional amendments easier would very quickly become a means for more numerous but less populous states to impose their will on the rest. It's easy to envisage early 2000s amendments banning the burning of the US flag, banning abortion, or declaring that marriage can only be between a man and a woman. Prohibition is really the only instance where the amendment process has been captured by the popular will of a particular time.
  • Dave W wrote: »
    Well, they specified the procedure for amending it, and that procedure itself hasn’t been amended, so in some sense (at least) isn’t it exactly as hard to amend as they intended?

    I dunno, my life is full of IT systems that work 'as designed', where the end result is a long way from what was expected ...
  • Gee DGee D Shipmate
    And that raises the question of what matters are suitable to place into the Constitution. One allowing an age limit to be placed on Federal judicial positions would be (there was one to that effect here), but those in the post from Arethosemyfeet are really more suited to normal legislation.
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