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.
So judges. Just judges. Judges deal with things that haven't been specifically legislated. You're saying judges are antidemocratic because we don't vote on their decisions.
This applies equally to any individual's choice, then, I suppose.
Comparing Australia to the US, the difference is that in the US what happens is that the Supreme court rules on a law, and the ruling directs how the government implements the law for the next 50 years.
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.
That wasn’t on a constitutional issue, though. In 1992, the Irish Supreme Court found that there was a right to abortion where a person was suicidal (at the time abortion was generally illegal in Ireland), on a constitutional basis. The government attempted to amend the constitution by referendum to remove this, but that failed.
There needs to be a distinction here between SCOTUS rulings on constitutional issues versus rulings based on statute.
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.
Yeah my gut feeling is that the relative balance is important to people, but I understand that if one party wins 2 or 3 elections in a row and there happens to be a lot of vacancies, they could swing the court heavily to the right or to the left. And since game theory dictates that you don't know when you'll have the presidency again, you can't nominate centrists to please the crowd you may find the court packed with your opponents + centrists...which means it leans to your opponents.
Congress has the power to enact new laws to replace rulings they fundamentally disagree with. It feels like the only difference is what happens when the legislature is too divided to do anything.
> Congress has the power to enact new laws to replace rulings they fundamentally disagree with.
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.
There is no reason the US government couldn't function in this manner in principle, but the lawmaking process is deliberately glacial and easy to disrupt. It is fairly difficult to repeal or modernize lawns in general, it's not a feature unique to court decisions. The SCOTUS usually rules on issues of federal law, which requires the majority of the House, 60% of the Senate, and either the President or sizable majorities of the other two to be on board with revising. When SCOTUS rules on constitutional law the bar is absurdly high, 75% of states. In niche scenarios as little as 2% of the population of the country can block a constitutional amendment.
>and the ruling directs how the government implements the law for the next 50 years.
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 sure I agree with your assessment of the questions asked. Question 3 is related to if the governor should rule by executive order if the opposing party doesn't cooperate. This is pretty much exactly what you're saying in your second sentence, just with executive orders instead of courts (bypassing the normal law process vs. monopolizing it). Question 4 is then about ignoring unfavorable court rulings, which again is pretty close to the undemocratic things you're referring to.
The executive is at least elected, while the courts are not, even indirectly. More importantly, in recent decades one part has more often obtained what it wanted through the courts, another through executive order. Having them both as examples of undemocratic, would have made the questions more nonpartisan. As written, it seems pretty clearly written from a left-of-center position.
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.
In general, the judicial branch can't quite make new law, but they can throw out (in whole or in part) or place limitations on an existing law. (There's some nuance to that.) That seems like a relevant distinction to draw, as it's an intentional aspect of the checks and balances between branches of government.
It's definitely not the primary role. It's principally a consequence of stare decisis. And even though stare decisis is the defining characteristic of the common law, in actuality many other jurisdictions apply the principle, including in Europe, just without formalizing it. The promotion of consistency is a nearly universal characteristic of all human legal systems, and stare decisis is consistency reified.
[1]
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 criminaloffense 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...
first, the US is a representative democracy, not a direct democracy. we don't vote on every little legal precedent. second, judges and the judicial system are a check on executive and legislative power, not a lawmaking body.
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).
The Founders deeply distrusted democracy, but loved big government. That's why they built the ability in for constituent governing bodies to construct and maintain a state apparatus for the totalitarian control of a mass slave population. Moreover, they built into the Constitution the ability for the federal government to assist in the operation of that apparatus.
Their point is that judges sometimes rule on cases beyond what the law explicitly states. Gay marriage was one such case. Abortion another. I would argue the Eminent Domain (for private construction, to eliminate blight) ruling from a few years ago was also another example of judges ruling beyond the law.
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.
That happens in Europe too. Homosexuality was legalised in Ireland as the result of a decision by the ECHR, for instance. Irish people also got the right to travel for an abortion via the Supreme Court (though legalisation of abortion in Ireland was via referendum).
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.
> 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.
Is there any direct democracy in the world? Maybe Swiss cantons? The default is a constitutional representative democracy. It's sort of a non-clarification because that's exactly what everyone is talking about when they say democracy.
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.
direct democracies weren't practical at the scale of a nation until relatively recently, but yes, many smaller governmental bodies can and have been direct.
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.
The judiciary is not a legislative body. I don't think anyone is claiming it is. But it acts, in practice, often as a legislative body. Certainly any application of judicial activism is indistinguishable from legislation due to the use of judicial precedence, i.e. it is parallel law-making.
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.
no, you're trying to stretch concepts past the breaking point to fit a desired narrative.
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.
I think you are both correct. Judges are not lawmakers but they sometimes come up with completely new interpretations of a law like for example Obergefell v Hodges, or Roe v Wade or citizens united etc. The current Qi is also a Supreme Court construct that has deep practical implications but is not reflected in law.
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.
Although technically true for the US, many states such as California meet most tenets of direct democracy including citizen initiated legislation and constitutional amendments. It's a big deal when you take into consideration the limits placed on the federal government by the 10th amendment.
In a common law jurisdiction the law is made up of constitutional law, statutory law (primary), regulatory law (secondary), and common law (case law) derived from precedent set in the courts. It is a lawmaking body though not of primary or secondary legislation.
absolutely. unfortunately the dynamics of our election and political systems has a tendency to degenerate to 2-party power sharing. we need systemic changes that counteract consolidations of power, of representative institutions relative to the represented. for instance, we could cap the number of people a house member could represent to 100,000, and have 3300 representatives instead of 438. it's harder to game 3300 representatives. similarly, we could give each state 100 senators. with modern technology, the practicality of that is no longer a problem. it would be hugely unpopular among the political class however.
They also forgot to mention a huge one - supports suppressing the political speech of your opponents. Both parties are guilty of this, but the Left is outright determined to regulate speech, shut down the sharing of information they consider dangerous, or deem hateful.
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).
Wikipedia says that's not true. And he's really about on track to match his contemporary predecessors. According to the table, he's issued substantially fewer than every president before him until you get has far back as Benjamin Harrison.
> 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.
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.
Sure, I'm fairly confident that "Democracy" for many Americans means "my political beliefs" and does not designate an ideal political structure in which the system of government is determined by the populous.
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.
It's why we're perpetually bewildered when one of the Bush family goes into a foreign country to "liberate" it and find that democracy is not the same thing as fealty to America.
Many Muslim countries are also skewed to elect conservative Muslim government. It's not they hate democracy. They just don't trust normal people to make the right decisions.
It took a while for me to get what you were saying. But it is true.
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.
It's more like there is a social philosophy that doesn't afford ideas contradicting orthodoxy. Free elections allow extremists to gain popular support because they're all trying to demonstrate they're the "True Scotsman". In slow increments for Turkey's case. Faster for Egypt.
These are always funny statements because they sort of betray what the person thinks are normal. There's a famous one with world renowned football coach Pep Guardiola:
> My kids go to school with Indian people, black people, normal people, people from everywhere
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.
Populism has always, from day one, all the way back in Ancient Greece, been a threat to democracy. People don’t really want lofty philosophical ideas. They want the rules most favorable to them. Been true for thousands of years and it’s not going to stop anytime soon.
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.
Direct democracy can be pretty damn horrible and unprincipled.
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.
Since you mentioned a popular YouTube channel, Historia Civilis has an excellent series on the late Roman Republic, where populism plays a major role in the republic's downfall.
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.
I'd say that populism is opposed to democracy in the same way that gluttony is opposed to health. Eating a ton is better than eating nothing at all, but the goal isn't mere survival. Populism subverts democracy, it doesn't further it.
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.
> CGPGrey has a great pair of videos on pirate social dynamics that everyone should watch. Economic factors, not shared idealism, created the flat hierarchy.
I wonder to what extent there is also a prisoner's dilemma problem here, insofar as defecting makes more sense if you have strong prior knowledge or belief that your opponent will defect. ( https://ncase.me/trust/ provides a great interactive and intuitive understanding of the prisoner's dilemma.)
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.
You have to also take into account Long Term and Short Term thinking.
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.
Of course, very few people actually like democracy in practice, they just tend to prefer whatever system/government that agrees with them.
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...
From briefly looking through the results and the survey design, I have some practical concerns with the design of the candidate choice survey part of the study as they relate to the “party over democracy” conclusion, specifically, the fact that there were no "pro-democratic" candidate positions, only "undemocratic" and "generic". This lets the voter faced with a choice between an undemocratic candidate and a candidate who has nothing to say on the "democracy" issues project the undemocratic positions onto the "generic" candidate. This seems especially problematic because anti-electoral fairness positions and rule by executive order, widely used in America by both parties, make up half of the undemocratic positions used. For many Americans these seem to be intractable issues because (1) these abuses are already widespread, and (2) almost no political candidates, aside from more fringe single-issue ones, run on ending them or can be expected to do anything to oppose or end them if perpetrated by their own party. So to me it seems perfectly reasonable to vote for a candidate of who explicitly supports gerrymandering and rule by executive order over a candidate less aligned with you on other policy issues who has nothing to say about them. Chances are, the other guy supports those things too. Am I missing some part of the study that accounts for this?
"There is nothing which I dread so much as a division of the republic into two great parties, each arranged under its leader, and concerting measures in opposition to each other. This, in my humble apprehension, is to be dreaded as the greatest political evil under our Constitution."
-- John Adams, 2nd President of the United States
Here in Australia there's a weird combination of moves towards this hugely damaging two-party approach to politics (moves orchestrated I suspect by pop media), and a very real trend away from that. At the last federal election, f.e., we had >25% of people not voting for either of the two major parties - that ratio has been growing steadily, and is hugely reassuring.
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.
I'd say that Blaise Pascal founded game theory, with his famous God / no God vs believer / non-believer matrix, at least a century before the American Revolution.
I suspect such a style of thinking was not alien to intellectuals of the time, even if not as a formal theory.
It should be said that John Adams signed the Alien and Sedition Acts, the Patriot Act of their day except far worse, which were used to imprison a majority of the opposition newspaper editors using those acts' definition of sedition. Not who I would quote as a defender of democracy.
It should be judged by its merits and looked at askance according to its author, because that often helps you spot sneaky-sneaky demerits being slipped in by the back door.
John Adams’ greatest contribution to the presidency was that after losing the election to Thomas Jefferson in 1800, he stepped down and power changed without bloodshed.
I’m not so sure that will happen should Trump lose this November.
He has a fairly long history of ignoring or denying tradition, social norms, presidential norms, factual information and even law. Lots of references to these sort of behaviors throughout his political career, presidency, and business ethics spanning many years.
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.
Why do a runoff, if you can just take everyone's preferences into account on the first vote? IRV and related systems have serious problems, most of which arise because they ignore some of people's preferences. Any system that needs a runoff is in some ways ignoring information it could have used the first time around.
STAR just has one runoff, between the top two candidates; the original scores are used to narrow down to those two, and then the runoff just compares everyone's preferences between them (single vote for one or the other, or neither if you scored them the same).
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.
This is actually what I think is most dangerous in US politics right now. Nixon resigned to avoid an inevitable impeachment. Today? He's stay in office, have impeachment defeated on a straight party-line vote and then declare victory against "fake news".
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.
Editorializing titles like this is against the site guidelines. We take submission privileges away from accounts that do it repeatedly, so please don't.
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[ 2.9 ms ] story [ 170 ms ] threadSo 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.
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.
https://www.independent.co.uk/news/world/europe/ireland-just...
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.
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.
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.
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.
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...
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).
Founders deeply distrusted democracy. Government in general, which is why system is setup to be so inefficient at change
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.
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.
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.
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).
https://en.m.wikipedia.org/wiki/Executive_order
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 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.
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.
> My kids go to school with Indian people, black people, normal people, people from everywhere
https://streamable.com/ga3fg
It's pretty easy to forgive that but it's still funny.
Should have said general people. I need to pay more poetic attention to words.
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 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.
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)
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.
Do you have the links?
https://www.youtube.com/watch?v=3YFeE1eDlD0
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.
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...
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.
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.
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.
[0]: https://www.rangevoting.org/AboutUs.html
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
https://news.ycombinator.com/newsguidelines.html