This is why the American system is superior. The representational nature of it allows minority voices. While sweeping changes, e.g., constitutional amendments, require a 3/5s majority of the states. The grid lock is by design.
Ultimately, we got lucky this past election, as in “unicorn levels”. What is going on in America is far from over and is going to ultimately be a generational struggle.
We did not get lucky.
How are American's votes equally weighted if 4 states (really 4 metro areas) get to decide who the president is every election?
No less a conservative jurist than Antonin Scalia repeatedly pointed out that he believed the US constitution was too hard to amend...amendments could be blocked by 2% of the population.
[https://slate.com/news-and-politics/2014/05/amending-the-con...]
To me, as an outside observer, it seems like the unseemly political shenanigans around appointments to the US Supreme Court are because the will of your Founders is too hard to override politically, and if the system of government was as great as it is made out to be, the philosophy and leanings of individual SCOTUS justices would not be such a huge deal.
You’ve got it precisely backward. Liberals make the “philosophy and leanings of individual SCOTUS justice” a “huge deal” because they rely on the courts to legislate policies they can’t get through Congress.
You talk about the difficulty of amending the constitution, but how does that relate to the controversy around judicial appointments? When France and Germany legalized abortion, same sex marriage, etc., they didn’t amend the constitution. They just passed a law. But liberals didn’t have the votes in Congress to pass those laws. So they got it done through the courts. And then they create a controversy around judicial appointments because conservative jurists foreclose that strategy.
With respect to hot-button judicial issues in the US, the courts in Europe is a lot more like the American conservatives than the American liberals. In 2016, the European Court of Human Rights found that there was no fundamental right to same-sex marriage in the European Convention of Human Rights: https://eclj.org/marriage/the-echr-unanimously-confirms-the-.... That was the year after the United States Supreme Court found exactly the opposite.
Around the same time as Roe v. Wade several courts in Europe considered the same issue. None concludes there was an expansive right to abortion: https://repository.law.uic.edu/cgi/viewcontent.cgi?article=2...
> These decisions seem to reflect several possible solutions. At one end of the spectrum is the decision of the U.S. Supreme Court which held that the U.S. Constitution prohibits abortion legislation designed to protect the life of the unborn prior to viability. At the other end of the spectrum is the decision of the West German Constitutional Court which held that the State has an affirmative duty to protect the unborn life at all stages of pregnancy.
To this day Roe remains an aberration in the developed world. Under it, the government can’t ban abortion (even with exceptions for emergencies) prior to viability, at the end of the second trimester. Under Roe the abortion laws of nearly every European country would be unconstitutional. (Only the UK’s would pass muster. Most prohibit elective abortion after the first trimester.)
Difficulty of amending the constitution is irrelevant, because the controversy is caused by things that can’t get enough support nationwide for ordinary legislation.
Regarding Roe v Wade (which I’ve read is widely seen as a bad decision) I agree that it’s unseemly. I also agree that in recent years too much social engineering has been routed through the Supreme Court.
I won’t dispute that most constitutional courts around the world are conservative or ideologically neutral, since they are aware that they can interpret the law as written, and not act as a pressure release valve against the dead hand of their “Founders” as they know that their populations can amend their constitutions if there is a pressing need.
The difficulty of amending the constitution is a theoretical problem. It takes a 2/3 majority of the Bundestag and the Bundesrat in Germany to amend the Basic Law. And for most of the issues where there is a disconnect between what the people want and the constitution, there wouldn’t be sufficient public support for an amendment even under the lower standard. Take gun control: https://www.slowboring.com/p/national-democrats-misguided-re...
Could you get a 2/3 majority of the House and Senate to repeal the second amendment? No way. Maybe you could get a 2/3 majority of both houses to overturn Citizens United.
But note also that 2/3 of Americans still oppose the Supreme Court decision banning school prayer. So it works both ways.
Obamacare is a bad example. The ACA case wasn’t a liberal versus conservative thing. It was simply a matter of the law as drafted failing to respect federalism. Courts in other countries aggressively enforce the structural protections of their constitutions, more so than the Supreme Court. Legislatures in those countries just deal with it. For example, Canada’s health system is largely administered by the provinces, with the federal government mainly setting standards and paying block grants to even out funding inequalities between the provinces. Has the ACA been modeled on Canada’s system (and in fact Medicaid is pretty similar) it would easily have passed muster in the Supreme Court.
The FDR era is the best example of where the Supreme Court really did strike down the will of the people to adhere to a conservative reading of the constitution. But the Supreme Court folded like a cheap suit when FDR threatened it, and now we have a nationwide minimum wage and executive administrative agencies that act like legislatures in issuing rules that have the force of law and like the judiciary in adjudicating regulatory violations before administrative judges. I don’t think say the German constitutional court would have allowed an entire new branch of government to be created without a constitutional amendment. While some conservatives might say the entire administrative state is unconstitutional, the public got its way ultimately. And you’re right I think it was the Supreme Court acting as a pressure release valve.
But overall I think it’s rare for conservatives on the Supreme Court to be out of step with the public on a legal issue where there is enough public consensus that an amendment would be possible under a lower 2/3 standard. Generally, conservatives are in the position of resisting change in areas where liberals might have a narrow majority or not even a majority.
Objection. When we get laws passed the way the founders intended, conservatives use the courts to strike them down; for instance, state and local bans on handguns.
Nobody's hands are clean.
The only arguments against it that I can see all rely on some sort of fetishization of the Constitution which assume the document to be infallible.
Is it infallible? No. No one thinks it is. I can tell you a few areas I think it falls short.
It's not a "fetishization of the Constitution." Its observing the governing ground rules of society--which society is empowered to change pursuant to those same rules if it wishes.
You take the good with the bad! Conservatives hated Obergefell.
My point is simply that the court is politically polarized in both directions.
> There used to be an almost complete scholarly and judicial consensus that the Second Amendment protects only a collective right of the states to maintain militias. That consensus no longer exists — thanks largely to the work over the last 20 years of several leading liberal law professors, who have come to embrace the view that the Second Amendment protects an individual right to own guns.
Heller also shows that, even if the court is "politically polarized in both directions" that polarization runs strongly in one particular direction. Deciding that the Second Amendment protects the individual right to bear arms, a position amply supported by the text and history (see: https://www2.law.ucla.edu/volokh/common.htm), requires a conservative majority plus buy-in from leading liberal academics.
Yet the decision that the Constitution protects a right to abortion, which concededly has no basis in the text or history of the document, survives despite decades of a conservative Supreme Court majority.
Originally yes, the constitutional amendments only applied to the federal government, but that changed with the 14th amendment.
You can articulate why you think Heller was properly decided and you can of course disagree with any or all of the justices on the court. The specific thing I am calling you on is the idea that the result is so straightforward that anyone who can read the text of 2A would reach your conclusion. That's an unsupportable argument.
There we go.
No, it didn't. The Court has, since the Fourteenth Amendment, found that rights equivalent to some protections in the Bill of Rights are imposed on the States through the Due Process Clause of the 14th Amendment, but each of these rights was incorporated by separate decisions; blanket incorporation is neither in the text nor in the case law. And the Second Amendment wasn't held to be incorporated against the states until 2 years after Heller, in a case directly leveraging Heller, so arguing incorporation to justify the obviousness of Heller is...bizarre.