Choosing between democracy and party, Americans will chose party over democracy
cambridge.org
cambridge.org
So they have a list of “undemocratic” behaviors, such as biased redistricting. But it doesn’t include using courts to secure laws that one side would be unable to get through the ordinary legislative process. That’s one of the most profoundly undemocratic things about the US. (Not bad, which is debatable, but by definition undemocratic.) So many major policies, from abortion to the role of religion in the public sphere are decided in America by unelected judges, whereas Europe for the most part manages to pass legislation on the same issues through democratic consensus. But social scientists steeped in American liberal ideology don’t even perceive this as anti-Democratic (again, different from good or bad).
This popped into my head reading the first paragraph, so I scrolled down to see what they thought were “undemocratic” things. Sure enough.
I’m not sure that’s entirety true. It is true that the US tends to act on courts alone more often; that is, it doesn’t bother legislating at all. But a lot of civil rights issues in many European countries originate in the courts; the government acts when it realises the courts are going to do something. This is particularly true of the ECHR.
In terms of the exercise of de facto law making powers the United States is somewhat of an outlier owing to the fact it was one of the first to explore how to apply the principles of 1) separation of powers and 2) to do so in the context of a Federal system. Also, the concept of Parliamentary Supremacy solidified in England after the American colonial legal system had begun to evolve on its own. So for these reasons it's unsurprising we ended up diverging from England, and that other former British colonies didn't end up with lawmaking powers quite as extensive as in the U.S. Similarly, it's unsurprising that the evolution of European Union legal rules arguably mirror much of what happened in the U.S.--de facto application of stare decisis, de facto judicial review powers of top EU courts, etc.
[1] Here's an interesting 1988 law review article that includes an exploration of the legal system of revolutionary France: "Tort Liability in France for the Act of Things: A Study of Judicial Lawmaking", https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?artic... The French so despised the practice of judicial lawmaking that they made it a criminal offense for judges to disambiguate the law, mandating that courts instead refer any legislative ambiguities to the Congress for interpretation. Guess how often that happened. So if you start from the premise that an intrinsic function of the courts is disambiguation, and combine it with the principle of consistent application of the law, guess where you end up. See also "Why Europe Rejected American Judicial Review and Why It May Not Matter", https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?arti...
If the study questions had been written during FDR's time, when the courts were striking down parts of the New Deal and FDR was expanding the powers of the executive in order to expand the social welfare net, we likely would see different questions used as examples of undemocratic behavior.
This applies equally to any individual's choice, then, I suppose.
In Australia the High court makes a ruling then legislation is put into the next legislative session to 'fix up' the issue with the existing law. Although this doesn't always happen, it seems to be the most common outcome.
Many if not most of the decisions that the Supreme Court hands down could be changed by the legislature. These are based on interpreting statute. For example, recently the court unanimously overturned the conviction of two New Jersey officials who were involved in a scandal involving shutting down an interstate bridge for political revenge. The majority opinion, that again was unanimously agreed to, went out of its way to say that their acts were reprehensible. But the statute that was used to charge them didn’t cover their acts. This is something that can be changed by the legislature easily and there’s no issue at all.
The issue comes with the constitutional ones. These get the most press and tend to be the ones that are most controversial. But the alternatives aren’t much better. Besides the historic reasons for SCOTUS supremacy in this area starting with Marbury v. Madison, there are legitimate concerns with having the interpretation of your constitution being subject to the whims of the most recently elected body.
Of course, this has led to the current nightmare where Supreme Court seats are hotly divisive contests to be won. Changing the makeup of the court is a battlefield and for the life of me I cannot see a way to fix that. Changing the number of justices or setting term limits will be seen as court packing by whichever party attempts it. It might result in open rebellion. Things are very fragile here and we are teetering on the edge.
https://www.independent.co.uk/news/world/europe/ireland-just...
https://lawliberty.org/scalia-and-ginsburg-on-constitutional...
The legislature and executive could pass a new law the same day as the ruling (well, maybe not if the new law required a constitutional amendment) if they really needed to and there was sufficient political will. In practice what you see is that the judicial branch only weighs in on controversial issues where there tends to be a pretty even split so it takes a long time for things to change enough for side to build the political will to get law passed to overturn the judicial precedent.
Not if it's a ruling regarding the Constitution, which very many of the interesting ones are, they don't. A supermajority of Congress can propose, but not enact, a change in that case.
please keep partisanship out of such analyses. if your ideas are good, they can stand on their own merits without trying to rally the party faithful (ironic, given the thread title).
I think one of the issues is that it is almost impossible to pass any controversial law in the US today, so it is hard for congress to come up with laws when judiciary changes interpretations.
This is also why we have presidential orders.
He's absolutely correct that American courts are, in actuality, through the precedent system and novel interpretation of law around cases, a defacto legislative body. They're sort of like a House of Lords. Examples are Schenk v US and Roe v Wade.
Overall, I think this has been effective in practice in the US, but it isn't quite in the spirit of the judiciary as you describe it.
but no, the judiciary is not a legislative body (nor is the executive). it curbs legislative power through interpretation (as does the executive), as is their charge, and therefore has influence and power at the margins, not in the wholesale creation of laws. it's more influential in the negative--striking down unconstitutional laws wholesale. that's not the same as a legislative body.
besides, representative democracy centers around the legislature, not the judiciary. talking about an undemocratic judiciary was just a contrivance for partisanship.
For what it's worth, the nature of the judiciary appointed by representatives chosen by voters is just slow representative democracy. It is no surprise that, given the ability to make a law-like, appointed in a manner that is representative-like, they act lawmaker-like.
They are, in their activism, isomorphic to lawmakers. That's what judicial activism is. In a POSIWID sense, the judiciary are lawmakers, no matter what you call them, like North Korea is a dictatorship despite being called a Democratic People's Republic.
the judiciary isn't a parallel lawmaking body. the legislation has corrective oversight of judiciary interpretation (outside of consitutional issues). that the legislature only exercises their oversight selectively inconsistent to your wishes is not a judicial issue.
also, "judicial activism" is a loaded term. the judiciary is doing exactly and only what it's tasked to do--interpret law against the backdrop of the constitition; it's not a bug if you disagree with its decisions.
Their rulings create de facto laws or regulations many times beyond the letter of the law. I don't think it's right but whether you agree with the Supreme Court's position is often dependent on your political leaning in that particular case, even if the ruling does go against the letter of the law.
I don’t think it’s possible to have a democracy where the courts can’t change things in this way; the law never covers everything.
That’s an odd way to put it. In Ireland, for example, the law does “cover” abortion: both before, when people wanted it to be illegal, and now, when they decided it should be legal. In both cases democracy (rather than courts) decided what the law should be.
Founders deeply distrusted democracy. Government in general, which is why system is setup to be so inefficient at change
Also the paper might want to examine the executive branch leaders of each party to see who actually, consistently legislates or attempts to legislate through executive order (hint, it isn't Republicans).
-- John Adams, 2nd President of the United States
What's not reassuring is that most people still think in terms of A or B, exhibiting a poverty of expectations, or perhaps just seeking a simple answer to the complexity of administration.
Preferably we would move to STAR voting (score then automatic runoff). More info at https://www.starvoting.us and you can try it at https://star.vote
(No affiliation, just convinced it's the best method we could adopt)
It's a protection against some scenarios where more people prefer the second-highest-scoring candidate, which I believe can result from strategic voting by a minority block.
More importantly, score voting is the best family of voting systems that currently exists (both STAR and vanilla score voting blow plurality and any form of ranked choice out of the water); STAR has only been around for a few years and has some real momentum in Oregon, whereas score has been around for roughly two decades[0] and has not made any headway that I know of.
I suspect such a style of thinking was not alien to intellectuals of the time, even if not as a formal theory.
I’m not so sure that will happen should Trump lose this November.
It doesn't seem too far fetched to extrapolate those behaviors to future events. Obviously, no one can predict the future with certainty of fact, but such an action certainly wouldn't be out of the norm of his past behaviors.
The surprising thing isn’t that rule of law is being threatened. It’s always being threatened. The surprising thing is that it ever evolved at all. And despite the constant threats, it still manages to evolve, one tyrant at a time.
CGPGrey has a great pair of videos on pirate social dynamics that everyone should watch. Economic factors, not shared idealism, created the flat hierarchy.
Nobody will choose idealism that’s not beneficial to them.
I'm not sure I agree that populism is, by nature, opposed to democracy. I think it is better defined as an opposition to the status quo - which very well may be a democratic government - when that system fails to address the concerns of its people. The voting process in Rome was hilariously tilted against poorer Roman citizens. The only real recourse for anyone fed-up with the senate would be to support a strongman populist who promised radical reform, because the existing voting system (public assemblies) was not effective at representing the will of the people (by design).
I think CGP Grey's video on the keys to power is another great example of this dynamic at play - you only matter when you hold a key to power. Without that, no leader will waste their time listening to you.
To your point about the Roman republic, I mean sure. But democracy itself isn't and never was a mechanism to give the less affluent an equal voice to the wealthy, who always set up their own, more prestigious power structure that could overrule the lesser if needed. US Senate, House of Lords, Athenian Areopagus, the Indian Rajya Sabha, all were mechanisms to allow affluent minorities exercise disproportionate influence.
Putting the poor first, that's the aim of communism. In a republic, you have a voice. The rest of society, including the movers and shakers, still has to agree with it.
In Plato's republic democracy is a result of populism and is seen as one of the lowest forms of government.
Any modern system has check and balances and the process itself is important. Forcing negotiation, coalitions and making it difficult to change constitution etc. Plato had no idea how democracy can develop.
See [this](https://fs.blog/2017/02/aristotles-politics/) article, and the [Politics, book 4, section XI](http://classics.mit.edu/Aristotle/politics.4.four.html#553)
Do you have the links?
For example, using one of the hypotheticals from the paper, I could imagine multiple reasons for a partisan to "support a redistricting plan that gives them more seats despite a decline in polling":
1) Choosing to intentionally commit anti-democratic behavior, such as to "win at all costs". Someone couldn't justify this (to themselves or others) directly through democratic values, though they could attempt to argue that winning averts some worse outcome.
2) Perceiving unfairness in existing polling (e.g. disenfranchisement, gerrymandering, etc), and choosing an action they perceive as "balancing" similar anti-democratic behavior by the other side, with the justification that the outcome may be closer to democratic. Someone could justify this (to themselves or others) directly through democratic values alone, particularly if they argued that they would prefer the outcome in which neither side commits such anti-democratic behavior.
Possibility (2) allows people to self-justify defection from democratic principles more easily, and feel more morally correct in doing so. It's difficult to get back from that situation to one in which everyone follows democratic norms and principles, if cooperating (following those norms and principles) is or is perceived as a losing strategy.
Not only are we playing a Prisoners’ Dilemma but most of the population is thinking about a value function that pays off in the Short Term (it’s definitely true about events outside the population’s expected lifespan, but also is true within a single lifespan).
In the Long Term all of our needs are relatively aligned.
There are pivotal points in history like the signing of the Magna Carta at knife point, rather than yet another relatively-shallow regime change, that are thinking about the value function in the Long Term.
There will one day be an iteration on democracy that solves the Byzantine Generals Problem. Where the “failures of communication” are caused by Short Term thinking.
In the American context it's become one of those meaningless, overloaded sham words, wrought with personal interpretation and emotion. For the American, anyone who is defending his own political prescriptions is a defender of sacred democracy.
I mean, jeez, we do such a poor job at political education in this country that I'm sure a large swath of the population couldn't even articulate ideal principles of a well-structured democracy.
Imagine you let people from one party (doesn't matter Democrat or Republicans) to anonymously vote on a constitutional amendment that outlaws the opposing party members from participating in the next presidential election, my gut feeling is that amendment would pass the vote overwhelmingly.
Either way, democracy is a nice ideology that won't scale in the 21st century anyway, but that's a different discussion for another day...
Should have said general people. I need to pay more poetic attention to words.
> My kids go to school with Indian people, black people, normal people, people from everywhere
It's pretty easy to forgive that but it's still funny.
How much of deferring to someone else to make "the right decisions" is looking for someone to blame other than themselves when something goes wrong?
They don't trust themselves. They trust government. Which is the opposite in America.
Issue of blame is more of an afterthought, once there is no choice to make.
But when things become bad, an open society is sought by people who have something to provide. Those are educated, skilled, thoughtful, serving, and maybe sacrificial and volunteering kind of people. For a society to have more people like this, it needs historical and cultural precursors so to become more "democratic" or open.
Is it? By what metric? Also, my point isn't that India is better or worse than the US, it's that it's not a country we should aspire to, considering there are better functioning countries out there.
The Senate obstruction of Obama was unprecedented. The subversion of the Justice Department is unprecedented. The White House going months without a press briefing is unprecedented (in modern times). The erosion of public institutions doesn't seem to matter. Nor does the public trust in those institutions. Winning matters. Getting your agenda through no matter what matters. And that's so dangerous.
This, by the way, is why mandatory voting (as we have in Australia) is so important and so much better. In the US, the election process itself is politicized. What you have is highly organized efforts aimed at voter suppression because people are allowed not to vote so much so that the GOP had to enter into a 35 year consent decree to prevent voter suppression [1].
What a lot of liberals don't understand (for the record, I include myself in that camp) is how angry the idea of activist judges makes conservatives.
In US constitutional law you really have two major schools of thought: the "living document" school and the "literalists". The second group think the constitution says what it says. If you want to change that, there's a process for that (ie a constitutional amendment). The "living document" school thinks the constitution should be viewed through the lens of the times and it asks questions like "what would the Founders have written or meant today?" Broadly speaking, literalists are the conservatives and "living document" types are liberals.
Judicial conservatives think there was no constitutional basis for the SCOTUS decision to legalize gay marriage. They feel like "dignity" was another invented right, just like "privacy" was an invented right that legalized abortion in Roe v. Wade. And whether or not you agree with those things in principle, you shouldn't dismiss how strongly many voters feel that legislatures not judges should enact those things.
I strongly believe the combination of the SCOTUS gay marriage decision and having a black president while the candidate was HIlary Clinton was the perfect storm that was the only thing that could get Trump elected.
But here's this relates to party over democracy: by any measure, Trump is a reprehensible human being. The level of hypocrisy required for religious conservatives to stand behind him is truly astounding. But they do it because we're now in a situation where the ends justifies the means and one of those key ends is packing the courts with young Conservative judges, something that'll have a legacy for decades to come.
[1]: https://en.wikipedia.org/wiki/Ballot_Security_Task_Force