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Comment by ern | Hacker News Reader

the government we have is what the founders warned about and did their best to prevent/delay

It's interesting how much Americans venerate the founders. At the same time, I recall that no less a conservative jurist than Antonin Scalia thought that they made a mistake by making the constitution too hard to amend: https://www.abajournal.com/news/article/how_scalia_and_ginsb... ("Scalia said fewer than 2 percent of the population could prevent enactment of a constitutional amendment. “It ought to be hard, but not that hard")

As an outsider, especially looking at how powerful the Supreme Court has become so both sides can read a seemingly inflexible document in a way that suits their purposes, did the founders foresee this?

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I think they should be venerated just for actually having a philosophical debate as the basis of the government in the first place. It would be basically impossible to get perfect results, but that alone is absolutely amazing and seems almost impossible today. Imagine the leading politicians of today writing anything near the federalist papers, debating it, then compromising to adapt the conclusions, it's absolutely unimaginable.

well, you have to consider the context. they had just done a treason together and killed a bunch of people they all agreed they didn't like, so there was some established trust and respect

And to your point, it was useful to paint the revolution as being some high minded, noble affair, rather than realpolitik wherein they recognized an opportunity to seize power from a weakening crown that tried to overplay its hand.

History, as they say, it's written by the victors.

I used to be as cynical as you, but after extensively traveling around Asia, I think you underestimate how important ideas truly are.

"live free or die," the golden rule (kant's categorical imperative), rule of law.

The idea that with solidarity you can fight a more powerful force and win.

Unionization, the 2nd amendment, and liberal education are the most powerful anti-tyranny ideas we have to date.

"If none of us is prepared to die for freedom, then all of us will die under tyranny."

American Exceptionalism would hold that there's something unique about formation of the US that enabled these steps, but consider that Europe is filled with democracies with similar rights despite arriving there via different trajectories.

The fact that the US continued both persecution against indigenous Americans and chattel slavery of Africans for years beyond its European peers gives the lie to the high-mindedness of their cause, and it should give us plenty of reason to hold any of these early views suspect.

These are not minor errors, they are fundamental injustices, and anybody who could so readily ignore them is not an authority worth appealing to.

As a history lesson? Sure, one can read what the early US philosophers and politicians wrote and derive value from it. But it would be a mistake to put them on some kind of pedestal and assume that they were uniquely qualified to create a superior structure for their new republic.

I am a liberal, and you also sound liberal, I am critiquing you from the context of seeing you as a trench mate in our impending civil war. I hope you understand that appeals to "racism" aren't winning you many friends. It's an absolutist position that ignores significant nuance and context, and worse it alienates moderates.

Our founding fathers did better than those before them and deserve some credit for that.

You are using today's morals to judge yesterday's actions with little reference to context. Were you in their positions, I doubt you could have done better. Their foundation is what gave you the privilege of judgement your post betrays.

I would be surprised if you can give me a cogent history lesson, but I will listen to you tell me how European democracies were started. I think America and France shares significant philosophical heritage. I think you are denying the amount of time and effort it takes philosophy or culture to permeate an aristocracy. I am admittedly fairly ignorant in the area, I am open to listening.

You can talk about American persecution of indigenous Americans compared to Europe, but Nazi Germany saw what Americans did and wanted to push eastward into slavic land in the same way Americans pushed westward. Quite literally Hitler wanted to do what Americans did to native Americans to Slavs, literally: https://en.wikipedia.org/wiki/Lebensraum. So that idea of enlightened "high minded" Europe falls quite a bit short, particularly in the context of WW2. Porgroms seem hard to reconcile too: https://en.wikipedia.org/wiki/Pogrom. This is contemporary and we can hear murmurs of it all over the white world: https://en.wikipedia.org/wiki/Great_Replacement. It Nazi Germany propaganda used to justify what they did.

It's like you think it's an easier explanation that people are born with perfect philosophical knowledge and make a choice to be evil rather than it being an easier explanation that implications of actions and philosophical cogency are learned rather than being apriori obvious. Convenient to persecute, but within it belies lack of self reflection on your own evils and how they came to happen.

Our founding fathers were some of the giants whose shoulders MLK stood on. Go read the "I have a dream" speech and consider that the civil rights movement is taught in positive light in American public education and reconcile that with your cynicism. I agree that it is not as simple because MLK was the "speak softly" part of "speak softly and carry a big stick."

Ideas have meaning. Some ideas prompt people to risk their lives and that personal risk in the face of greater power is what ultimate creates change.

I don't think that is unique to America, but I do think it is part of American culture.

Timothy Snyder (the modern person who most closely resembles our founding fathers, to me) would call your attitude the "politics of inevitability." Realpolitik is inevitable after all, why try to fight something that is inevitable. Why talk about values in the face of inevitability? https://hac.bard.edu/amor-mundi/the-politics-of-inevitabilit...

I am not an American exceptionalist because I do not think America is intrinsically better. I think that many people have sacrificed to make America better and those sacrifices in the name of ideals have led to better outcomes for many people.

Unjust governments usually paint, and oftentimes enact laws, to make reason treason.

The Declaration of Independence very clearly states why they didn't like England. It also says the act of treason that started the nation wasn't something they wanted to do but felt was necessary.

The question of power in American government is an interesting one. Much of the work of the Constitution goes into restricting powers to limited domains or balancing powers against each other.

I think it is commonly held that the modern federal government as a whole is vastly more powerful than what it was envisioned to become by the Founders. While American States still enjoy a large degree of autonomy for their own affairs, through the delegation of so much Congressional power into the Executive and the clever use of the Enumerated Powers of Congress to legislate on matters not obviously under its purview, today's federal goverment is enormous and exercises a high degree of centralized control.

But what is the only force which can impede the accumulation of power by the federal goverment? A powerful Judiciary which can say "no" to unconstitutional overreach. It's almost necessary for the Supreme Court to be as powerful as it is to rein in the other two branches. This is a classic "conservative" Court move, to say no to the other two branches of the federal government.

The balance of power between the federal goverment and the States shifted dramatically 100 years in, with the ratification of the 14th Amendment after the Civil War. Because of a legacy of some States trying to retain the antebellum (racist) status quo, the 14th empowered the federal Constitution with the ability to demand that States respect the rights of citizens as endowed by the federal Constitution. Suddenly the Supreme Court gets way more powerful because now, on every rights-related matter where it could declare federal actions unconstitutional, it can now also declare State actions unconstitutional. Here lie many of the classic "liberal" court moves that say no to State governments.

The danger on either side is that the Court, being so powerful a force against either Congress and the Executive, or against the States, is that it then has to be trusted to exercise proper _self_ control, since it has, by the Founder's design, very little natural accountability.

Judicial review -- the ability of the judiciary to declare laws "unconstitutional" -- was not explicitly granted and in the first years there was debate whether this was a power of the courts.

Thomas Jefferson hated the concept, saying that the Constitution would become "as wax" in the hands of the judiciary.

So...he forsaw it at least

Here's what I've failed to quite grasp: if judicial review wasn't a thing, then what power would SCOTUS have had? Would they have just served as the "jury" for each case, but without the ability to set legal precedent for future similar cases? And if so, doesn't that mean they could still take future cases and rule the same way... just with more repeated/wasted work?

Well, in the UK they have the principle of Parliamentary Supremacy. Like here in the US, courts there can set legal precedent, but unlike here, they can't rule a law that has been enacted by the Parliament as being unconstitutional.

> Well, in the UK they have the principle of Parliamentary Supremacy. Like here in the US, courts there can set legal precedent, but unlike here, they can't rule a law that has been enacted by the Parliament as being unconstitutional.

Yes, Parliamentary sovereignty—that the law is exactly and only what Parliament [0], directly or by delegation to other bodies, says it is—is the central, fundamental, element of the British Constitution (arguably, that is the whole of the British Constitution, insofar as by that you mean something functionally analogous to the US Constitution, that is, a fundamental law to which all other law is subordinate.) There is no Constitution as a distinct document setting out fundamental law with its own amendment process distinct from normal legislation in the UK.

You couldn't meaningfully have a law that transcends the normal acts and processes of the legislature without courts being able to set aside regular acts of the legislature as not-law for conflict with it, and you can’t reasonably read the power to resolve all cases and controversies arising under thr Constitution (which explicilty is the preeminent law and limits the power of Congress to make law) and laws of the United States as anything other than including the power to resolve disputes over whether an act of Congress is within the power assigned to Congress in the Constitution.

Note that the UK does have judicial review that extends to all acts of delegated power by government body, just not to primary legislation, which is not delegated but a direct act of the sovereign power. In the US, Congress’s legislative power is delegated by the people via the Constitution (popular sovereignty), rather than having Congressional sovereignty as the sole operative Constitutional principal. So, really, judicial review itself is not different between the two systems, only who is the sovereign from which all government power held by other bodies is delegated differs.

[0] in present terms; in historical terms, perhaps “the Crown”, embodied in the personal acts of monarchs prior to the establishment of the principle of Parliamentary sovereignty, and by the acts of the Crown-in-Parliament since, rather than merely “Parliament” would be more accurate.

> Well, in the UK they have the principle of Parliamentary Supremacy

In the US the Constitution is supreme, so it's not like the law is whatever ordinary legislation Congress passes, unlike in the UK. So someone needs to be the referee who declares when statues conflict with the constitution. If SCOTUS is not the one with that power, then who is it? Congress itself?

Note, along those lines, that, in the UK, also, the “Supreme Court” didn’t exist until 2009; prior to that, that function was served formally by the Crown-in-Parliament (the same body as the legislature), and functionally by (since 1876) the Apellate Committee of the House of Lords. So not only do the courts not exercise judicial review over Parliament, until recently the ultimate court was Parliament (nominally, and functionally a committee of the upper House.)

I'm also aware of that, but again, it doesn't really answer anything regarding the US. The constitution literally has an amendment process written into it. If Congress could just review its own statutes and say "yup that's constitutional" then they'd easily defeat the amendment process.

I was underlining the structural differences stemming from Parliamentary sovereignty, not offering it as an answer to anything regarding the US.

Thanks I guess, but in that case I'm confused how the UK was at all relevant to the discussion.

The US is a former English colony and much of our law is based on/has its origin in English common law. When the framers were writing the constitution they were trying to fix many of the perceived problems with the Westminster system

The UK does have an uncodified Constitution, though I don't know if their judges have ever invalidated a law passed by their Parliament because it conflicted with it.

The Supreme Court using precedent is totally different from judicial review. Not all, or even most, of their cases today require judicial review. For example, the Supreme Court recently ruled on how to interpret a law on wetlands adjacent to the waterways.

Judicial review is limited to describing the Supreme Court throwing out a law as unconstitutional, as opposed to applying legal reasoning and precedent to understanding the law.

I didn't mean to say all their cases require judicial review. But I am asking about cases where the question really is "what is the effective law, given that the constitution says X but plaintiffs believe the statute says not-X?"

Like, if it turns out the statute really goes against the constitution, then what else can the court do if not declare it unconstitutional? Just read it for amusement, give their 2 cents, and shrug and tell congress it can do whatever it wanted anyway? What does the constitution even mean at that point?

Basically, yes.

If the Executive, Legislative, and Judicial branches disagree about what the Constitution means, that is of course a real problem.

Opponents of judicial review argued that the Judicial branch has no supremacy over the other two branches in reading the Constitution.

You worry about the legislature running roughshod over the Constitution without anyone to stop them. Okay, fair enough.

But then who prevents the courts from running roughshod over the Constitution without anyone to stop them?

Who watches the watchers? Does judicial review actually prevent the problem?

(Disclaimer: Personally, I agree with judicial review. I think Marshall's argument in Marbury v Madison is cogent.)

> But then who prevents the courts from running roughshod over the Constitution without anyone to stop them?

Depending on how you look at it, the answer is either nothing, or impeachment.

But regardless, this doesn't seem like sound reasoning. The constitution itself becomes meaningless if congress can just override it through ordinary legislation without going through the amendment process. This is true regardless of whether or not anyone watches the watchers.

Moreover this doesn't even seem like it needs a logical leap; the constitution literally says:

> The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority [...]

That seems to be a very explicit mention that the Supreme Court can adjudicate all cases regarding the laws of the United States, and also determine the relief (if I understand "equity" correctly). That... seems to be exactly what judicial review is, no? Otherwise what would this "power" the constitution speaks of be?

The Veto was originally seen as the check on unconstitutional statues, and that it was improper for a president to use it to dismiss a statue they disagreed with politically.

That's a cool fact, but then what was the point of the amendment process?

How is judicial review different from what naturally follows from a combination of constitutional supremacy and precedent?

> , then what power would SCOTUS have had?

The same power that any court has. When two people disagree as to what a law means, they would be the ultimate arbiter of it.

They've certainly doubled down on the ultimate part...

Okay, so imagine plaintiffs claim the constitution says X and so that's the law even if the statute says not-X. Whereas defendants claim the statute says not-X but they believe it doesn't conflict with whatever the constitution says. SCOTUS being the arbiter studies both and finds that the constitution says X, the statute says not-X, the constitution is supreme, and therefore X is in fact the law.

Exactly how is that different from saying the statute is "unconstitutional"?

I have a better example to ponder.

Imagine the claim is that the constitution says X, the statute says not-X, and the court rules ABCD and a pony.

How exactly do you prevent that sort of thing? What mechanism could do so?

If you can think of one, I'll note that it can likewise be applied to the scenario you described. If you can't, then I'll argue that the court's power is... Quite open-ended, with no limits on it.

> How exactly do you prevent that sort of thing? What mechanism could do so?

You don't prevent it, you deal with it after the fact. If Congress finds the court ruling egregious enough it obviously has mechanisms to deal with it. Like by impeaching justices, installing new ones, etc. And if for whatever reasons those aren't options, well, then there is no recourse.

Regardless, even if the court's power were unlimited, this is not answering my question or addressing my point regarding judicial review...

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