Out of curiosity, what does all this discussion about denominational differences have about the OP question of whether the US is a failed state?
OK. What I see is that all the pearl-clutching about a "constitutional crisis" is Pollyannaism. It's a constitutional collapse, and Biden's election is just deferring it. The real problem is that Madison's theory of governance was just plain wrong. He was imagining a Roman republic undone by personal ambition, which could be defended by separation of powers. The constitution doesn't take parties into account (it was meant to prevent them from emerging in the first place). Separation of powers leads to partisan divided government, which leads to institutional paralysis, which leads to the desire for a strong executive to make things happen (if Trump wasn't a weak, lazy ignoramus things would be much worse than they are). It's not insignificant that while the US Constitution is the oldest written constitution in the world, no country has used it as a template (Canada and Australia borrowed bits of it). Even when the US has imposed constitutions on other countries (e.g. Japan) we didn't try to clone our own--because it's a fucking goat rodeo.
It's not insignificant that while the US Constitution is the oldest written constitution in the world, no country has used it as a template (Canada and Australia borrowed bits of it).
I'm struggling to understand how the main sentence is supposed to gel with the bit in parentheses. One of the chief writers of the Australian constitution was a big fan of the American constitution and yes, indeed, he borrowed quite a lot of it actually.
The rest of your post doesn't really articulate what you're getting at. How does separation of powers lead to partisan divided government? Separation of powers is not a uniquely American idea, and even in America you haven't always had the intense levels of partisanship you currently have.
I would point to a lot of other things that cause greater problems than separation of powers. Let's start with the fact that you don't treat the judiciary in a way consistent with separation of powers. It's far more political in the US than in a lot of other countries: as I've observed before, I'd be hard pressed to even remember which side of politics was in power when most Australian judges were appointed.
I would point to a lot of other things that cause greater problems than separation of powers. Let's start with the fact that you don't treat the judiciary in a way consistent with separation of powers. It's far more political in the US than in a lot of other countries: as I've observed before, I'd be hard pressed to even remember which side of politics was in power when most Australian judges were appointed.
A prime example of this from a recent edition of the Guardian - the Republicans were said to control the Supreme Court 6 to 3. A statement along those lines could not be be said of the High Court here, or its equivalents in NZ, Canada or the UK. A new member is of course appointed by the government of the day (I know that that is strictly not correct but it is in substance) but with rare exceptions who remembers if the present Chief Justice of the High Court was appointed to that Court, and later appointed as Chief Justice when the Liberal Party was in power.
From a UK perspective, the way American judges are appointed seems very politicised. Formerly UK (or at least England and Wales) judges were appointed by the Lord Chancellor. Although that process was not obviously politicised, it was seen as open to criticism in that judges were appointed by a member of the party in power, and potentially open to abuse.
There is now an independent Judicial Appointments Commission with a system that seeks to encourage candidates from all sections of society and which has a specific statutory duty to "encourage diversity in the range of persons available for selection for appointments". AIUI people who are interested in judicial roles can apply and/or register an interest, and there is an open competitive process.
Yeah, I call bullshit on political parties as the problem. The problem as I see it is that the Republicans have lost sight of the National Interest, as a party, and have been captured by this cartoon conspiracy view of the nation as comprised of the good and the evil. No system of Government can work when a good proportion of the body politic is determined that it should not work.
At the Federal level, and to the best of my recollection at State and Territory, appointments a still made on advice from the Attorney General either directly, through the Prime Minister/Premier, or the Cabinet as a whole. There are comments from time to time about moving to a Judicial Appointment Commission but so far there's been no government action. Undoubtedly there have been real political appointments from time to time. A reverse example was when a State Labor Attorney-General was defeated at an election; he was appointed as a judge of the intermediate level by his Liberal party successor. I never appeared before him, but he had a good reputation.
It's not insignificant that while the US Constitution is the oldest written constitution in the world, no country has used it as a template (Canada and Australia borrowed bits of it).
I would point to a lot of other things that cause greater problems than separation of powers. Let's start with the fact that you don't treat the judiciary in a way consistent with separation of powers. It's far more political in the US than in a lot of other countries: as I've observed before, I'd be hard pressed to even remember which side of politics was in power when most Australian judges were appointed.
It wasn’t that long ago that the same was true of the SCOTUS - if memory serves all nine judges of the Casey court (which split three ways on whether to overturn Roe) were appointed by Republican presidents.
How much power do Australian courts have to overturn statutes on constitutional grounds? My recollection from way back when is that neither Australia nor New Zealand has a robust power of judicial review of legislation, but I may be wrong (or things may have changed). Whatever the merits of constitutional judicial review, it does have a clear potential to politicize judicial appointments, as we have seen in the US at least since the Bush I administration. (I would say that it also has some politicizing effect on appellate judicial appointments in Canada though less obviously and to a lesser extent.)
In addition to being Gerald Ford Country, the Reformed Bible Belt of Michigan also gave rise to Amway, whose founding families now spread their tentacles into Blackwater and the US Department Of Education.
And of course, Jim Bakker originally hails from that region, though he doesn't seem to have ever been Reformed. Robert Schuller was Reformed, though originally came from Iowa, eventually heading to Michigan for his theological studies.
Aficonadi of the story of Robert Schuller and his Crystal Cathedral might enjoy https://newbooksnetwork.com/the-glass-church . The Cathedral is now a (real) cathedral and the see of the RC Latin Bishop of Orange in California.
Thanks, Augustine.
The Crystal Cathedral was designed by Philip Johnson, who also did the Canadian Broadcasting Centre in Toronto, de facto headquarters of our beloved CBC.
I once saw an interview with Schuller, in which he said that someone he described as "the founder of sociobiology[I'm guessing E.O. Wilson]" was involved in the conceptualization of the CC. Which would seem to indicate that Schuller was open to the ideas of Darwinism(I consider sociobiology a goofy reductionism of Darwin, but it still requires Darwin to be correct).
Not sure how sociobiology would be represented in the CC. Maybe the reflecting glass is supposed to make it appear to merge into its surrounding ecosystem?
I believe somewhere on the old Ship there was a thread about the sale of the Crystal Cathedral to the archdiocese. Perhaps I had already posted some of these comments on that one.
I was never a fan of Bob Schuller or of the "Crystal Cathedral" ...
But I do quite admire the work(s) of E. O. Wilson, including his seminal book, "Sociobiology" .. ...
It wasn’t that long ago that the same was true of the SCOTUS - if memory serves all nine judges of the Casey court (which split three ways on whether to overturn Roe) were appointed by Republican presidents.
Do you mean the court that decided Planned Parenthood v. Casey? That wasn't all Republican - Byron White had been named by JFK. And I don't think people who followed the court at the time would have had any trouble remembering who appointed the justices. After all, Eisenhower explicitly tried to use his nominations to counter the tendencies of those named by the two previous Democratic presidents (though he was also famously unhappy with the results.)
It wasn’t that long ago that the same was true of the SCOTUS - if memory serves all nine judges of the Casey court (which split three ways on whether to overturn Roe) were appointed by Republican presidents.
Supreme Courts are usually referred to by the name of whoever is Chief Justice at the time. For example, it would be more proper to say that the Rehnquist Court (1986-2005) decided Planned Parenthood v. Casey and had eight Republican-appointed Justices (Rehnquist, Blackmun, Stevens, O'Connor, Scalia, Kennedy, Souter, and Thomas) and one Democrat-appointed Justice (B. White) at the time, as pointed out by @Dave W.
It should be noted that Rehnquist and White were dissenters from Roe, so their opposition was more or less expected. As a practical matter Casey did overturn Roe, moving from Roe's fairly clear trimester standard to a much vaguer "undue burden" standard, without specifying what kind of burden would be considered "undue". Going forward it seems like a burden is undue if it would be a hindrance to a woman of roughly the same socio-economic status as Sandra Day O'Connor. Thus Pennsylvania's spousal notification law was unconstitutional but all the other restrictions were held to meet Constitutional muster.
It wasn’t that long ago that the same was true of the SCOTUS - if memory serves all nine judges of the Casey court (which split three ways on whether to overturn Roe) were appointed by Republican presidents.
Supreme Courts are usually referred to by the name of whoever is Chief Justice at the time. For example, it would be more proper to say that the Rehnquist Court (1986-2005) decided Planned Parenthood v. Casey and had eight Republican-appointed Justices (Rehnquist, Blackmun, Stevens, O'Connor, Scalia, Kennedy, Souter, and Thomas) and one Democrat-appointed Justice (B. White) at the time, as pointed out by @Dave W.
It should be noted that Rehnquist and White were dissenters from Roe, so their opposition was more or less expected. As a practical matter Casey did overturn Roe, moving from Roe's fairly clear trimester standard to a much vaguer "undue burden" standard, without specifying what kind of burden would be considered "undue". Going forward it seems like a burden is undue if it would be a hindrance to a woman of roughly the same socio-economic status as Sandra Day O'Connor. Thus Pennsylvania's spousal notification law was unconstitutional but all the other restrictions were held to meet Constitutional muster.
And lest we forget, some judicial activists who want to overturn Roe v. Wade also think that Griswold v. Connecticut was wrongly decided ...
It wasn’t that long ago that the same was true of the SCOTUS - if memory serves all nine judges of the Casey court (which split three ways on whether to overturn Roe) were appointed by Republican presidents.
Do you mean the court that decided Planned Parenthood v. Casey? That wasn't all Republican - Byron White had been named by JFK. And I don't think people who followed the court at the time would have had any trouble remembering who appointed the justices. After all, Eisenhower explicitly tried to use his nominations to counter the tendencies of those named by the two previous Democratic presidents (though he was also famously unhappy with the results.)
That may have been overstatement on my part, but I don’t think the extreme politicization we’ve seen in the last few decades in the US has always been par for the course. We’ve seen some level of politics in senior judicial appointments in Canada as well but there’s politics and then there’s politics.
When I was looking up Casey a while ago the thing that struck me was that the liberal and middle-of-the road justices were all Republican appointments. I don’t think it ever occurred to me to look up who appointed White, but it is interesting that the only Democratic appointment on the Casey court sided with the conservatives (and also dissented in Roe and wrote the majority opinion in Bowers).
It wasn’t that long ago that the same was true of the SCOTUS - if memory serves all nine judges of the Casey court (which split three ways on whether to overturn Roe) were appointed by Republican presidents.
Supreme Courts are usually referred to by the name of whoever is Chief Justice at the time. For example, it would be more proper to say that the Rehnquist Court (1986-2005) decided Planned Parenthood v. Casey
My apologies for any confusion, but it's actually a commonly used lawyerly shorthand. The Court itself actually refers to the "Roe Court" a few times in Casey.
It wasn’t that long ago that the same was true of the SCOTUS - if memory serves all nine judges of the Casey court (which split three ways on whether to overturn Roe) were appointed by Republican presidents.
Do you mean the court that decided Planned Parenthood v. Casey? That wasn't all Republican - Byron White had been named by JFK. And I don't think people who followed the court at the time would have had any trouble remembering who appointed the justices. After all, Eisenhower explicitly tried to use his nominations to counter the tendencies of those named by the two previous Democratic presidents (though he was also famously unhappy with the results.)
That may have been overstatement on my part, but I don’t think the extreme politicization we’ve seen in the last few decades in the US has always been par for the course. We’ve seen some level of politics in senior judicial appointments in Canada as well but there’s politics and then there’s politics.
When I was looking up Casey a while ago the thing that struck me was that the liberal and middle-of-the road justices were all Republican appointments. I don’t think it ever occurred to me to look up who appointed White, but it is interesting that the only Democratic appointment on the Casey court sided with the conservatives (and also dissented in Roe and wrote the majority opinion in Bowers).
My understanding is that Byron White's highly restrictive view of court powers was rooted largely in his support for Roosevelt's New Deal, portions of which were invalidated by the courts as allegedly infringing upon constitutional rights(eg. antitrust laws violated freedom-of-association). The Switch In Time That Saved Nine and all that.
It wasn’t that long ago that the same was true of the SCOTUS - if memory serves all nine judges of the Casey court (which split three ways on whether to overturn Roe) were appointed by Republican presidents.
Supreme Courts are usually referred to by the name of whoever is Chief Justice at the time. For example, it would be more proper to say that the Rehnquist Court (1986-2005) decided Planned Parenthood v. Casey
My apologies for any confusion, but it's actually a commonly used lawyerly shorthand. The Court itself actually refers to the "Roe Court" a few times in Casey.
Yes, it’s common usage in the US, at least among lawyers and others who follow courts. I knew exactly what you meant. The Rehnquist Court means the Court during Rehnquist’s tenure as Chief Justice. The Casey Court means the specific iteration of the Rehnquist Court that rule in Planned Parenthood v. Casey.
How much power do Australian courts have to overturn statutes on constitutional grounds? My recollection from way back when is that neither Australia nor New Zealand has a robust power of judicial review of legislation, but I may be wrong (or things may have changed). Whatever the merits of constitutional judicial review, it does have a clear potential to politicize judicial appointments, as we have seen in the US at least since the Bush I administration. (I would say that it also has some politicizing effect on appellate judicial appointments in Canada though less obviously and to a lesser extent.)
The power is there but the opportunity to exercise it is limited. The main reason is the lack of a Bill of Rights built into the Aust Constitution as it has been in the US. Any rights legislation is simply that - legislation which can be restricted or overruled by later acts.
It wasn’t that long ago that the same was true of the SCOTUS - if memory serves all nine judges of the Casey court (which split three ways on whether to overturn Roe) were appointed by Republican presidents.
Do you mean the court that decided Planned Parenthood v. Casey? That wasn't all Republican - Byron White had been named by JFK. And I don't think people who followed the court at the time would have had any trouble remembering who appointed the justices. After all, Eisenhower explicitly tried to use his nominations to counter the tendencies of those named by the two previous Democratic presidents (though he was also famously unhappy with the results.)
That may have been overstatement on my part, but I don’t think the extreme politicization we’ve seen in the last few decades in the US has always been par for the course. We’ve seen some level of politics in senior judicial appointments in Canada as well but there’s politics and then there’s politics.
When I was looking up Casey a while ago the thing that struck me was that the liberal and middle-of-the road justices were all Republican appointments. I don’t think it ever occurred to me to look up who appointed White, but it is interesting that the only Democratic appointment on the Casey court sided with the conservatives (and also dissented in Roe and wrote the majority opinion in Bowers).
I think it may depend on what you mean by "politicization." The court may not have always appeared so partisan, but that could be because the parties themselves were not as ideologically sorted (there were once liberal Republicans to the left of conservative Democrats.) But it isn't at all clear to me that (e.g.) the Lochner era courts were less politicized:
The Lochner era is a period in American legal history from 1897 to 1937 in which the Supreme Court of the United States is said to have made it a common practice "to strike down economic regulations adopted by a State based on the Court's own notions of the most appropriate means for the State to implement its considered policies".
That quote (from a dissent by Breyer, quoting a dissent by Rehnquist) sounds to me like a description of a fairly politicized court.
How much power do Australian courts have to overturn statutes on constitutional grounds? My recollection from way back when is that neither Australia nor New Zealand has a robust power of judicial review of legislation, but I may be wrong (or things may have changed). Whatever the merits of constitutional judicial review, it does have a clear potential to politicize judicial appointments, as we have seen in the US at least since the Bush I administration. (I would say that it also has some politicizing effect on appellate judicial appointments in Canada though less obviously and to a lesser extent.)
The power is there but the opportunity to exercise it is limited. The main reason is the lack of a Bill of Rights built into the Aust Constitution as it has been in the US. Any rights legislation is simply that - legislation which can be restricted or overruled by later acts.
Well no, that isn't true. The "opportunity" to exercise the power is NOT limited. Speaking as an employee of the office whose job includes making sure we write constitutional legislation, we can't limit it. The High Court has full power to overturn any legislation that is unconstitutional.
But most of it isn't.
Anybody can start a court case claiming that a piece of legislation is unconstitutional. Do most such claims succeed? No, because a lot of people (occasionally including me) spend quite a bit of the their time trying to ensure that any law that gets made is within constitutional power. The boundaries are not casually overstepped.
Understand? The reason the High Court doesn't often overturn legislation for being invalid is because we're all trying damn hard to only create valid legislation.
The only relevance that the lack of a Bill of Rights has is that maybe, just maybe, such a Bill might increase the number of ways in which the constitution could be breached.**
But that has nothing do with a lack of power on the part of the High Court. It has to do with the constitution not having quite as many rules on personal rights as some other countries decided to throw in (in the case of America, after initially not having them).
**If such a Bill existed, we'd still try not to breach it, okay? No-one is going to thank me for drafting a law but completely failing to check whether we think it's within legislative power.
And I stick with the fact that I work in the organisation that actually has to think about this stuff.
In addition, the Senate established scrutiny committees to look at questions of rights and other matters relating to the appropriateness of legislation long before other countries did so.
The whole notion that it's only the job of a court to guard against that sort of legislative overreach is just fanciful. In this country, a court only needs to be there as the last step in a few cases, because a whole bunch of other people care about the same issues before a law even gets made.
Including, I might add, the Human Rights Branch of the Attorney-General's Department, which is where I worked before becoming a drafter.
That may have been overstatement on my part, but I don’t think the extreme politicization we’ve seen in the last few decades in the US has always been par for the course. We’ve seen some level of politics in senior judicial appointments in Canada as well but there’s politics and then there’s politics.
When I was looking up Casey a while ago the thing that struck me was that the liberal and middle-of-the road justices were all Republican appointments. I don’t think it ever occurred to me to look up who appointed White, but it is interesting that the only Democratic appointment on the Casey court sided with the conservatives (and also dissented in Roe and wrote the majority opinion in Bowers).
I think it may depend on what you mean by "politicization." The court may not have always appeared so partisan, but that could be because the parties themselves were not as ideologically sorted (there were once liberal Republicans to the left of conservative Democrats.) But it isn't at all clear to me that (e.g.) the Lochner era courts were less politicized...
Yes - I was trying not to be too categorical about the way I put that for that reason. But I was thinking particularly of the politicization of the appointment process and not so much about the deliberation process. I would curious to know to what extent the Lochner majority would have agreed with Breyer's after-the-fact characterization of their thought process. I also don't know how much deliberate politics went into the appointment of judges that resulted in Lochner, though we do know for a fact that FDR was prepared to expend considerable political capital to reverse Lochner. With respect to Roe, my sense is that the politicization of the appointment process on the Republican side hardened after Casey (though obviously the potential was there all along, and the appointments of Scalia and Thomas both pre-date Casey).
Anyway, I think the point that we agree on is that more constitutional powers a court has, the more risk there is of politicizing the judicial appointment process. Which was one reason I was interested in the situation in Australia and New Zealand.
The whole notion that it's only the job of a court to guard against that sort of legislative overreach is just fanciful. In this country, a court only needs to be there as the last step in a few cases, because a whole bunch of other people care about the same issues before a law even gets made.
The one comment I would make on the basis of the Canadian experience is that many people were very surprised at the extent of the renovation the Canadian Charter effected on Canadian law - including, as I recall, at least one of the lawyers who was intimately involved in drafting the document.
How much power do Australian courts have to overturn statutes on constitutional grounds? My recollection from way back when is that neither Australia nor New Zealand has a robust power of judicial review of legislation, but I may be wrong (or things may have changed). Whatever the merits of constitutional judicial review, it does have a clear potential to politicize judicial appointments, as we have seen in the US at least since the Bush I administration. (I would say that it also has some politicizing effect on appellate judicial appointments in Canada though less obviously and to a lesser extent.)
The power is there but the opportunity to exercise it is limited. The main reason is the lack of a Bill of Rights built into the Aust Constitution as it has been in the US. Any rights legislation is simply that - legislation which can be restricted or overruled by later acts.
Well no, that isn't true. The "opportunity" to exercise the power is NOT limited. Speaking as an employee of the office whose job includes making sure we write constitutional legislation, we can't limit it. The High Court has full power to overturn any legislation that is unconstitutional.
But most of it isn't.
Anybody can start a court case claiming that a piece of legislation is unconstitutional. Do most such claims succeed? No, because a lot of people (occasionally including me) spend quite a bit of the their time trying to ensure that any law that gets made is within constitutional power. The boundaries are not casually overstepped.
Understand? The reason the High Court doesn't often overturn legislation for being invalid is because we're all trying damn hard to only create valid legislation.
The only relevance that the lack of a Bill of Rights has is that maybe, just maybe, such a Bill might increase the number of ways in which the constitution could be breached.**
But that has nothing do with a lack of power on the part of the High Court. It has to do with the constitution not having quite as many rules on personal rights as some other countries decided to throw in (in the case of America, after initially not having them).
**If such a Bill existed, we'd still try not to breach it, okay? No-one is going to thank me for drafting a law but completely failing to check whether we think it's within legislative power.
Lest we forget, the SCOTUS has great "authority" ... but no "power" ... Any Court decision at any level is only as effective as its active enforcement by The Executive ... hint: Eisenhower sending the 101st Airborne to enforce the Brown v. Board of Education decision ...
I think it may depend on what you mean by "politicization." The court may not have always appeared so partisan, but that could be because the parties themselves were not as ideologically sorted (there were once liberal Republicans to the left of conservative Democrats.) But it isn't at all clear to me that (e.g.) the Lochner era courts were less politicized...
Yes - I was trying not to be too categorical about the way I put that for that reason. But I was thinking particularly of the politicization of the appointment process and not so much about the deliberation process. I would curious to know to what extent the Lochner majority would have agreed with Breyer's after-the-fact characterization of their thought process. I also don't know how much deliberate politics went into the appointment of judges that resulted in Lochner, though we do know for a fact that FDR was prepared to expend considerable political capital to reverse Lochner. With respect to Roe, my sense is that the politicization of the appointment process on the Republican side hardened after Casey (though obviously the potential was there all along, and the appointments of Scalia and Thomas both pre-date Casey).
I think it would be more accurate to describe the selection process for Supreme Court Justices in earlier times as differently partisan rather than less partisan. In the early republic this was done on a state-by-state basis, with there being a de facto New England seat, New York seat, Virginia seat, etc. on the Supreme Court. These appointees were very likely to hew to the interests of their states. Eventually a more regional system developed trying to strike a balance between Northern and Southern (and eventually Western) states (where "the West" could be anywhere from Kentucky to California depending on which era you were looking at). In the late nineteenth and early twentieth century presidents tried to curry favor with various electorally important ethnic and religious groups so there was an Irish seat, a Catholic seat (often the same person as the Irish seat), eventually a Jewish seat, and an array of different groups we'd all simply call "white" today. From the end of the First World War to the mid-20th century the politics of Supreme Court appointments reverted to the traditional North/South divide and the late-20th/early-21st century appointments seem predicated on what we could refer to as "culture war issues". All of these criteria are heavily based in what were important political considerations at the time.
The whole notion that it's only the job of a court to guard against that sort of legislative overreach is just fanciful. In this country, a court only needs to be there as the last step in a few cases, because a whole bunch of other people care about the same issues before a law even gets made.
Some American politicians deliberately draft legislation they know is unconstitutional (mostly anti-abortion legislation) because they know it'll be popular with their constituents and they're counting on the courts striking it down so they don't have to deal with the consequences of a law that's probably a lot more popular in theory than in application. Occasionally this game of Constitutional chicken goes badly for them (and their constituents) and the courts refuse to step in.
Some American politicians deliberately draft legislation they know is unconstitutional (mostly anti-abortion legislation) because they know it'll be popular with their constituents and they're counting on the courts striking it down so they don't have to deal with the consequences of a law that's probably a lot more popular in theory than in application. Occasionally this game of Constitutional chicken goes badly for them (and their constituents) and the courts refuse to step in.
The whole culture of how legislation is drafted is very different in the USA, and far more about politics.
For a long time no equivalent of my office existed, and I think in many or most states there is still no equivalent. Legislation gets drafted in the offices of the politicians far more often than it ever would here, and if not by politicians and their staff then by lobby groups.
And I stick with the fact that I work in the organisation that actually has to think about this stuff.
In addition, the Senate established scrutiny committees to look at questions of rights and other matters relating to the appropriateness of legislation long before other countries did so.
The whole notion that it's only the job of a court to guard against that sort of legislative overreach is just fanciful. In this country, a court only needs to be there as the last step in a few cases, because a whole bunch of other people care about the same issues before a law even gets made.
Including, I might add, the Human Rights Branch of the Attorney-General's Department, which is where I worked before becoming a drafter.
What we're talking about is not the quality of the drafting, but on the interweb of State and Commonwealth powers. In the US , that is much more complex than here because of the Bill of Rights amendments. They bind both Federal and State legislatures.
Orfeo, you (and your colleagues here) are as thoroughly professional as you describe. I'm prepared to assume the same of those in the US performing equivalent roles. So the detailed work you set out is not an answer to the question posed - why there is much more legislation struck down there as unconstitutional.
Orfeo, you (and your colleagues here) are as thoroughly professional as you describe. I'm prepared to assume the same of those in the US performing equivalent roles.
I do not think that is a safe assumption. The Republican 2017 tax cut bill, for instance, was ridiculed for having changes scribbled in the margins in the copy distributed just before the Senate vote.
Orfeo, you (and your colleagues here) are as thoroughly professional as you describe. I'm prepared to assume the same of those in the US performing equivalent roles.
Such people frequently don't exist. That's my point. Legislative drafting offices such as mine are not a feature of the US system. Professional trained legislative drafters are not a standard feature of the US legislative landscape.
I'm not questioning the professionalism of my peers, I'm telling you that I don't have very many American peers. And certainly, a hell of a lot of American legislation is not drafted by my peers. It's drafted by political aides and lobbyists, because the whole notion of having an office of legislative counsel is not embedded into the standard procedure of how laws are made in the US.
The US national Congress does now have drafting offices - 2 in fact, they have a separate one for each House, which is a bit curious - but even then it's still not the case that it's standard practice to have those drafting offices doing the drafting. It's kind of an optional idea.
I should that at least part of the reason is that in the US the executive branch and the legislative branch are completely separate, and so the US culture around how members of Congress develop legislation is entirely different.
It makes less sense to have a public service/civil service agency dedicated to legislative drafting when the government doesn't actually have representatives in the legislature who can introduce government Bills. The US has no mechanism for, say, the Secretary of Health to introduce legislation on healthcare the way the Minister for Health would do here.
It's not insignificant that while the US Constitution is the oldest written constitution in the world, no country has used it as a template (Canada and Australia borrowed bits of it).
I'm struggling to understand how the main sentence is supposed to gel with the bit in parentheses. One of the chief writers of the Australian constitution was a big fan of the American constitution and yes, indeed, he borrowed quite a lot of it actually.
The rest of your post doesn't really articulate what you're getting at. How does separation of powers lead to partisan divided government? Separation of powers is not a uniquely American idea, and even in America you haven't always had the intense levels of partisanship you currently have.
I would point to a lot of other things that cause greater problems than separation of powers. Let's start with the fact that you don't treat the judiciary in a way consistent with separation of powers. It's far more political in the US than in a lot of other countries: as I've observed before, I'd be hard pressed to even remember which side of politics was in power when most Australian judges were appointed.
Canada and Australia borrowed the idea of a Senate that represented regions rather than populations, as well as a (much less diffuse) version of federalism, and some separation of powers. But both have a parliamentary system rather than a strong presidential system. In neither can you have divided government as we have had it here for the last ten years--and no one in Canada or Australia would proudly point to governmental paralysis as a feature rather than a bug. You're quite right about the inconsistency in our treatment of the judicial system-- it's always been a politicized mess, and cries out for fundamental constitutional change.
Political parties in the US don't really function like they do elsewhere. We essentially have freelance politicians who use the parties as branding and fundraising schemes. This kind of worked out when the parties were more ideologically, regionally, and demographically diverse, but socioeconomic changes over the past 50 years have made compromise and even civility politically impossible. Madison's vision of separation of powers presumed factions, but not parties. He expected the branches to be concerned with protecting their own power versus each other--he would never have imagined a supine legislature abdicating its power to the executive so that its members could curry favor with the president's followers to avoid being challenged in a primary (another thing that didn't exist in 1789).
Orfeo, I understand now where you're coming from, but that does not seem to play such a frequent part in the Supreme Court's ruling State legislation unconstitutional. It's so often unconstitutional because it infringes the Bill of Rights provisions, provisions which we sadly lack.
Orfeo, I understand now where you're coming from, but that does not seem to play such a frequent part in the Supreme Court's ruling State legislation unconstitutional. It's so often unconstitutional because it infringes the Bill of Rights provisions, provisions which we sadly lack.
...right, so you think that if we had Bill of Rights provisions, having a bunch of professional legislative drafters would do nothing to affect how often those provisions would be infringed?
I assume that parliamentary drafters follow instructions. They may raise questions, may give advice, but in the long run they follow instructions. If those are to draft legislation which will be struck down as in conflict with the Bill of Rights amendments (in the US) then they give their advice and do as they are instructed.
I assume that parliamentary drafters follow instructions. They may raise questions, may give advice, but in the long run they follow instructions. If those are to draft legislation which will be struck down as in conflict with the Bill of Rights amendments (in the US) then they give their advice and do as they are instructed.
I hate to break it to you, but when people around here are given definitive advice that something is going to be unconstitutional they normally don't go ahead with it. Because what would be the point?
Maybe American politicians are stupider, or maybe they are more interested in meaningless political symbolic gestures and then blaming the courts when the legislation is struck down, or maybe they just don't get that kind of advice because (especially at State level) there aren't people to give them that kind of advice reliably (and I note that in our system it's the Australian Government Solicitor more than us that actually gives advice on these issues, though we would raise questions). Or maybe it's a combination of all three.
But the culture here is still that rule of law matters, and that it's not a good thing to have laws struck down, and so it's not a good thing to create laws that are likely to be struck down.
I don't think you have much idea of what "following instructions" involves, frankly. You, like many people, seem to think it's about creating the requested text. It's not. It's about achieving the desired policy result. And yes, on occasion we do get people insisting on particular forms of words (often because of stupid negotiations over forms of words rather than policy), but in general the policy result that is wanted isn't a law that's going to ultimately be useless when it's gets struck down by a court. I see little evidence that politicians here are interested in playing 'constitutional chicken' in the way that Croesos mentioned earlier.
Laws are tools to achieve something. An unconstitutional law is a broken tool. The instructions we follow are not normally instructions that insist on creating a tool that is likely to break.
I hate to break it to you, but when people around here are given definitive advice that something is going to be unconstitutional they normally don't go ahead with it. Because what would be the point?
I don't think you have much idea of what "following instructions" involves, frankly. mentioned earlier.
As to the first paragraph I have quoted, people usually do follow advice, but not always. My experience does not cover giving advice in the situations you do, but I'd not be surprised if (for example) there had not been instances in Queensland under Bjelke the Joker where that advice was not accepted.
My career involved following instructions - giving advice, but always following instructions after giving that advice.
Orfeo, I understand now where you're coming from, but that does not seem to play such a frequent part in the Supreme Court's ruling State legislation unconstitutional. It's so often unconstitutional because it infringes the Bill of Rights provisions, provisions which we sadly lack.
...right, so you think that if we had Bill of Rights provisions, having a bunch of professional legislative drafters would do nothing to affect how often those provisions would be infringed?
I don't know why I bother.
Given Canadian experience, where our system is far closer to yours than the United States is, the answer is no, drafters don't make a difference when a government wants a specific political outcome.
Provinces mainly, but the Governmemt of Canada too have a considerable recent history of saying 'Damn the Constitution, this is the law I want'. And then letting the courts pick up the pieces.
Quebec is a master at this. Other provinces have followed its lead. Its sbout power, pure and simple.
If a constitutional provision 'arguably' allows something, even if another levels powers say its nonsense, then a politician will do it.
Moreover, most countries (including Canada) have a saving clause in their bills which permits rights restriction if justified according a stringent legal standard. Which to a politician means 'take the risk and let the courts take the heat'.
Given Canadian experience, where our system is far closer to yours than the United States is, the answer is no, drafters don't make a difference when a government wants a specific political outcome.
I'm sure your career did, but the instructions and the questions are not of the same nature.
There is a difference between the public nature of your work, and the generally private nature of mine, but the principle of being bound by your instructions remains.
I'm not talking about a difference of 'public' vs 'private'.
It's the difference between trying to achieve a successful outcome in a particular case given the current state of the rules, versus changing the rules with a view to affecting all future cases (including seeing to it that various situations never get to become a 'case'). The kind of instructions you get for those 2 things are very different.
Anyway it's pointless talking about this any further.
Comments
I worked this out with tclune. I don't see why you're making it personal. It's not all about you.
OK. What I see is that all the pearl-clutching about a "constitutional crisis" is Pollyannaism. It's a constitutional collapse, and Biden's election is just deferring it. The real problem is that Madison's theory of governance was just plain wrong. He was imagining a Roman republic undone by personal ambition, which could be defended by separation of powers. The constitution doesn't take parties into account (it was meant to prevent them from emerging in the first place). Separation of powers leads to partisan divided government, which leads to institutional paralysis, which leads to the desire for a strong executive to make things happen (if Trump wasn't a weak, lazy ignoramus things would be much worse than they are). It's not insignificant that while the US Constitution is the oldest written constitution in the world, no country has used it as a template (Canada and Australia borrowed bits of it). Even when the US has imposed constitutions on other countries (e.g. Japan) we didn't try to clone our own--because it's a fucking goat rodeo.
I'm struggling to understand how the main sentence is supposed to gel with the bit in parentheses. One of the chief writers of the Australian constitution was a big fan of the American constitution and yes, indeed, he borrowed quite a lot of it actually.
The rest of your post doesn't really articulate what you're getting at. How does separation of powers lead to partisan divided government? Separation of powers is not a uniquely American idea, and even in America you haven't always had the intense levels of partisanship you currently have.
I would point to a lot of other things that cause greater problems than separation of powers. Let's start with the fact that you don't treat the judiciary in a way consistent with separation of powers. It's far more political in the US than in a lot of other countries: as I've observed before, I'd be hard pressed to even remember which side of politics was in power when most Australian judges were appointed.
A prime example of this from a recent edition of the Guardian - the Republicans were said to control the Supreme Court 6 to 3. A statement along those lines could not be be said of the High Court here, or its equivalents in NZ, Canada or the UK. A new member is of course appointed by the government of the day (I know that that is strictly not correct but it is in substance) but with rare exceptions who remembers if the present Chief Justice of the High Court was appointed to that Court, and later appointed as Chief Justice when the Liberal Party was in power.
There is now an independent Judicial Appointments Commission with a system that seeks to encourage candidates from all sections of society and which has a specific statutory duty to "encourage diversity in the range of persons available for selection for appointments". AIUI people who are interested in judicial roles can apply and/or register an interest, and there is an open competitive process.
It wasn’t that long ago that the same was true of the SCOTUS - if memory serves all nine judges of the Casey court (which split three ways on whether to overturn Roe) were appointed by Republican presidents.
How much power do Australian courts have to overturn statutes on constitutional grounds? My recollection from way back when is that neither Australia nor New Zealand has a robust power of judicial review of legislation, but I may be wrong (or things may have changed). Whatever the merits of constitutional judicial review, it does have a clear potential to politicize judicial appointments, as we have seen in the US at least since the Bush I administration. (I would say that it also has some politicizing effect on appellate judicial appointments in Canada though less obviously and to a lesser extent.)
I was never a fan of Bob Schuller or of the "Crystal Cathedral" ...
But I do quite admire the work(s) of E. O. Wilson, including his seminal book, "Sociobiology" .. ...
Supreme Courts are usually referred to by the name of whoever is Chief Justice at the time. For example, it would be more proper to say that the Rehnquist Court (1986-2005) decided Planned Parenthood v. Casey and had eight Republican-appointed Justices (Rehnquist, Blackmun, Stevens, O'Connor, Scalia, Kennedy, Souter, and Thomas) and one Democrat-appointed Justice (B. White) at the time, as pointed out by @Dave W.
It should be noted that Rehnquist and White were dissenters from Roe, so their opposition was more or less expected. As a practical matter Casey did overturn Roe, moving from Roe's fairly clear trimester standard to a much vaguer "undue burden" standard, without specifying what kind of burden would be considered "undue". Going forward it seems like a burden is undue if it would be a hindrance to a woman of roughly the same socio-economic status as Sandra Day O'Connor. Thus Pennsylvania's spousal notification law was unconstitutional but all the other restrictions were held to meet Constitutional muster.
And lest we forget, some judicial activists who want to overturn Roe v. Wade also think that Griswold v. Connecticut was wrongly decided ...
That may have been overstatement on my part, but I don’t think the extreme politicization we’ve seen in the last few decades in the US has always been par for the course. We’ve seen some level of politics in senior judicial appointments in Canada as well but there’s politics and then there’s politics.
When I was looking up Casey a while ago the thing that struck me was that the liberal and middle-of-the road justices were all Republican appointments. I don’t think it ever occurred to me to look up who appointed White, but it is interesting that the only Democratic appointment on the Casey court sided with the conservatives (and also dissented in Roe and wrote the majority opinion in Bowers).
My apologies for any confusion, but it's actually a commonly used lawyerly shorthand. The Court itself actually refers to the "Roe Court" a few times in Casey.
My understanding is that Byron White's highly restrictive view of court powers was rooted largely in his support for Roosevelt's New Deal, portions of which were invalidated by the courts as allegedly infringing upon constitutional rights(eg. antitrust laws violated freedom-of-association). The Switch In Time That Saved Nine and all that.
The power is there but the opportunity to exercise it is limited. The main reason is the lack of a Bill of Rights built into the Aust Constitution as it has been in the US. Any rights legislation is simply that - legislation which can be restricted or overruled by later acts.
Well no, that isn't true. The "opportunity" to exercise the power is NOT limited. Speaking as an employee of the office whose job includes making sure we write constitutional legislation, we can't limit it. The High Court has full power to overturn any legislation that is unconstitutional.
But most of it isn't.
Anybody can start a court case claiming that a piece of legislation is unconstitutional. Do most such claims succeed? No, because a lot of people (occasionally including me) spend quite a bit of the their time trying to ensure that any law that gets made is within constitutional power. The boundaries are not casually overstepped.
Understand? The reason the High Court doesn't often overturn legislation for being invalid is because we're all trying damn hard to only create valid legislation.
The only relevance that the lack of a Bill of Rights has is that maybe, just maybe, such a Bill might increase the number of ways in which the constitution could be breached.**
But that has nothing do with a lack of power on the part of the High Court. It has to do with the constitution not having quite as many rules on personal rights as some other countries decided to throw in (in the case of America, after initially not having them).
**If such a Bill existed, we'd still try not to breach it, okay? No-one is going to thank me for drafting a law but completely failing to check whether we think it's within legislative power.
And I stick with the fact that I work in the organisation that actually has to think about this stuff.
In addition, the Senate established scrutiny committees to look at questions of rights and other matters relating to the appropriateness of legislation long before other countries did so.
The whole notion that it's only the job of a court to guard against that sort of legislative overreach is just fanciful. In this country, a court only needs to be there as the last step in a few cases, because a whole bunch of other people care about the same issues before a law even gets made.
Including, I might add, the Human Rights Branch of the Attorney-General's Department, which is where I worked before becoming a drafter.
Yes - I was trying not to be too categorical about the way I put that for that reason. But I was thinking particularly of the politicization of the appointment process and not so much about the deliberation process. I would curious to know to what extent the Lochner majority would have agreed with Breyer's after-the-fact characterization of their thought process. I also don't know how much deliberate politics went into the appointment of judges that resulted in Lochner, though we do know for a fact that FDR was prepared to expend considerable political capital to reverse Lochner. With respect to Roe, my sense is that the politicization of the appointment process on the Republican side hardened after Casey (though obviously the potential was there all along, and the appointments of Scalia and Thomas both pre-date Casey).
Anyway, I think the point that we agree on is that more constitutional powers a court has, the more risk there is of politicizing the judicial appointment process. Which was one reason I was interested in the situation in Australia and New Zealand.
The one comment I would make on the basis of the Canadian experience is that many people were very surprised at the extent of the renovation the Canadian Charter effected on Canadian law - including, as I recall, at least one of the lawyers who was intimately involved in drafting the document.
Lest we forget, the SCOTUS has great "authority" ... but no "power" ... Any Court decision at any level is only as effective as its active enforcement by The Executive ... hint: Eisenhower sending the 101st Airborne to enforce the Brown v. Board of Education decision ...
I think it would be more accurate to describe the selection process for Supreme Court Justices in earlier times as differently partisan rather than less partisan. In the early republic this was done on a state-by-state basis, with there being a de facto New England seat, New York seat, Virginia seat, etc. on the Supreme Court. These appointees were very likely to hew to the interests of their states. Eventually a more regional system developed trying to strike a balance between Northern and Southern (and eventually Western) states (where "the West" could be anywhere from Kentucky to California depending on which era you were looking at). In the late nineteenth and early twentieth century presidents tried to curry favor with various electorally important ethnic and religious groups so there was an Irish seat, a Catholic seat (often the same person as the Irish seat), eventually a Jewish seat, and an array of different groups we'd all simply call "white" today. From the end of the First World War to the mid-20th century the politics of Supreme Court appointments reverted to the traditional North/South divide and the late-20th/early-21st century appointments seem predicated on what we could refer to as "culture war issues". All of these criteria are heavily based in what were important political considerations at the time.
Some American politicians deliberately draft legislation they know is unconstitutional (mostly anti-abortion legislation) because they know it'll be popular with their constituents and they're counting on the courts striking it down so they don't have to deal with the consequences of a law that's probably a lot more popular in theory than in application. Occasionally this game of Constitutional chicken goes badly for them (and their constituents) and the courts refuse to step in.
The whole culture of how legislation is drafted is very different in the USA, and far more about politics.
For a long time no equivalent of my office existed, and I think in many or most states there is still no equivalent. Legislation gets drafted in the offices of the politicians far more often than it ever would here, and if not by politicians and their staff then by lobby groups.
What we're talking about is not the quality of the drafting, but on the interweb of State and Commonwealth powers. In the US , that is much more complex than here because of the Bill of Rights amendments. They bind both Federal and State legislatures.
The answer is "yes, courts have full power to strike down any legislation that is unconstitutional".
If people can't unpack the reasons why legislation is rarely struck down in Australia, it's because they are looking at the process backwards.
Such people frequently don't exist. That's my point. Legislative drafting offices such as mine are not a feature of the US system. Professional trained legislative drafters are not a standard feature of the US legislative landscape.
I'm not questioning the professionalism of my peers, I'm telling you that I don't have very many American peers. And certainly, a hell of a lot of American legislation is not drafted by my peers. It's drafted by political aides and lobbyists, because the whole notion of having an office of legislative counsel is not embedded into the standard procedure of how laws are made in the US.
The US national Congress does now have drafting offices - 2 in fact, they have a separate one for each House, which is a bit curious - but even then it's still not the case that it's standard practice to have those drafting offices doing the drafting. It's kind of an optional idea.
It makes less sense to have a public service/civil service agency dedicated to legislative drafting when the government doesn't actually have representatives in the legislature who can introduce government Bills. The US has no mechanism for, say, the Secretary of Health to introduce legislation on healthcare the way the Minister for Health would do here.
Canada and Australia borrowed the idea of a Senate that represented regions rather than populations, as well as a (much less diffuse) version of federalism, and some separation of powers. But both have a parliamentary system rather than a strong presidential system. In neither can you have divided government as we have had it here for the last ten years--and no one in Canada or Australia would proudly point to governmental paralysis as a feature rather than a bug. You're quite right about the inconsistency in our treatment of the judicial system-- it's always been a politicized mess, and cries out for fundamental constitutional change.
Political parties in the US don't really function like they do elsewhere. We essentially have freelance politicians who use the parties as branding and fundraising schemes. This kind of worked out when the parties were more ideologically, regionally, and demographically diverse, but socioeconomic changes over the past 50 years have made compromise and even civility politically impossible. Madison's vision of separation of powers presumed factions, but not parties. He expected the branches to be concerned with protecting their own power versus each other--he would never have imagined a supine legislature abdicating its power to the executive so that its members could curry favor with the president's followers to avoid being challenged in a primary (another thing that didn't exist in 1789).
...right, so you think that if we had Bill of Rights provisions, having a bunch of professional legislative drafters would do nothing to affect how often those provisions would be infringed?
I don't know why I bother.
I hate to break it to you, but when people around here are given definitive advice that something is going to be unconstitutional they normally don't go ahead with it. Because what would be the point?
Maybe American politicians are stupider, or maybe they are more interested in meaningless political symbolic gestures and then blaming the courts when the legislation is struck down, or maybe they just don't get that kind of advice because (especially at State level) there aren't people to give them that kind of advice reliably (and I note that in our system it's the Australian Government Solicitor more than us that actually gives advice on these issues, though we would raise questions). Or maybe it's a combination of all three.
But the culture here is still that rule of law matters, and that it's not a good thing to have laws struck down, and so it's not a good thing to create laws that are likely to be struck down.
I don't think you have much idea of what "following instructions" involves, frankly. You, like many people, seem to think it's about creating the requested text. It's not. It's about achieving the desired policy result. And yes, on occasion we do get people insisting on particular forms of words (often because of stupid negotiations over forms of words rather than policy), but in general the policy result that is wanted isn't a law that's going to ultimately be useless when it's gets struck down by a court. I see little evidence that politicians here are interested in playing 'constitutional chicken' in the way that Croesos mentioned earlier.
Laws are tools to achieve something. An unconstitutional law is a broken tool. The instructions we follow are not normally instructions that insist on creating a tool that is likely to break.
As to the first paragraph I have quoted, people usually do follow advice, but not always. My experience does not cover giving advice in the situations you do, but I'd not be surprised if (for example) there had not been instances in Queensland under Bjelke the Joker where that advice was not accepted.
My career involved following instructions - giving advice, but always following instructions after giving that advice.
Given Canadian experience, where our system is far closer to yours than the United States is, the answer is no, drafters don't make a difference when a government wants a specific political outcome.
Provinces mainly, but the Governmemt of Canada too have a considerable recent history of saying 'Damn the Constitution, this is the law I want'. And then letting the courts pick up the pieces.
Quebec is a master at this. Other provinces have followed its lead. Its sbout power, pure and simple.
If a constitutional provision 'arguably' allows something, even if another levels powers say its nonsense, then a politician will do it.
Moreover, most countries (including Canada) have a saving clause in their bills which permits rights restriction if justified according a stringent legal standard. Which to a politician means 'take the risk and let the courts take the heat'.
Totally agree - that's what I've been saying.
There is a difference between the public nature of your work, and the generally private nature of mine, but the principle of being bound by your instructions remains.
It's the difference between trying to achieve a successful outcome in a particular case given the current state of the rules, versus changing the rules with a view to affecting all future cases (including seeing to it that various situations never get to become a 'case'). The kind of instructions you get for those 2 things are very different.
Anyway it's pointless talking about this any further.