[CornFed]

[quote author=CornFed link=topic=14611.msg156717#msg156717 date=1455728855]
I do think that they consciously avoided the possibility of states with concentrations of population running roughshod over the interests of the less-populated states.  Isn't that why they came up with the Electoral College?  Any effort to undermine the role of the Electoral College will result in greater majority rule, which is presumably a good thing, but it will threaten the minority's rights.  They scrupulously tried to avoid that.  It's also the reason they developed a bicameral Congress with one body based on equal state representation and the other based on population.

I was talking about districting in the House, which is supposed to be the representative body.  But thanks to gerrymandering and the coincidence that Democrats tend to live in densely populated areas, the House no longer reflects voters' preferences.  That has nothing to do with the senate or electoral college.

Also, you fail to appreciate the distinction (pointed out by WIM above) between not trampling on a minority and elevating a minority to power.  The latter was surely not what the founders intended.

More generally, arguing that the system is just because the founders wanted it that way is not useful.  They were just people, often forced to make bad compromises to patch together a new country from 13 colonies.  It is not a coincidence that since 1789, very few other countries have followed the US example in developing their constitutions, and most that did so foundered.
[/quote]

The inroads that the GOP has made in both houses of Congress and in the state legislatures over the last 10 years did not start with them holding the power to gerrymander in those states that were flipped from Democrat to Republican control.  Gerrymandering has strengthened their control (presumably) since they were flipped, but it certainly didn't cause the flip.

Arguing to retain the current structure because it is old would be stupid (which I am most certainly NOT doing).  It is also fairly naive or glib to argue that those who want to overhaul the structure now are somehow more than human.  It is risible to assert that politicians today have anything remotely like the vision of those individuals who fought for their interests in crafting the original Constitution.

I am interested in your comment about other countries that have tried our form of government and failed.  Which would those be?  The fact that our system of government is unique only serves to highlight its power, since the success of our form of government has, in fact, been unique in the world.

[CornFed]

[quote author=CornFed link=topic=14611.msg156717#msg156717 date=1455728855]
I do think that they consciously avoided the possibility of states with concentrations of population running roughshod over the interests of the less-populated states.  Isn't that why they came up with the Electoral College?  Any effort to undermine the role of the Electoral College will result in greater majority rule, which is presumably a good thing, but it will threaten the minority's rights.  They scrupulously tried to avoid that.  It's also the reason they developed a bicameral Congress with one body based on equal state representation and the other based on population.

I was talking about districting in the House, which is supposed to be the representative body.  But thanks to gerrymandering and the coincidence that Democrats tend to live in densely populated areas, the House no longer reflects voters' preferences.  That has nothing to do with the senate or electoral college.

Also, you fail to appreciate the distinction (pointed out by WIM above) between not trampling on a minority and elevating a minority to power.  The latter was surely not what the founders intended.

More generally, arguing that the system is just because the founders wanted it that way is not useful.  They were just people, often forced to make bad compromises to patch together a new country from 13 colonies.  It is not a coincidence that since 1789, very few other countries have followed the US example in developing their constitutions, and most that did so foundered.
[/quote]

The inroads that the GOP has made in both houses of Congress and in the state legislatures over the last 10 years did not start with them holding the power to gerrymander in those states that were flipped from Democrat to Republican control.  Gerrymandering has strengthened their control (presumably) since they were flipped, but it certainly didn't cause the flip.

Arguing to retain the current structure because it is old would be stupid (which I am most certainly NOT doing).  It is also fairly naive or glib to argue that those who want to overhaul the structure now are somehow more than human.  It is risible to assert that politicians today have anything remotely like the vision of those individuals who fought for their interests in crafting the original Constitution.

I am interested in your comment about other countries that have tried our form of government and failed.  Which would those be?  The fact that our system of government is unique only serves to highlight its power, since the success of our form of government has, in fact, been unique in the world.

[TreesAndBirds]

"And please folks, I am aware that there was political intrigue and strife among the founders.  I know they played dirty in their ways too.  But they managed to create a document that guided the formation and emergence of the greatest nation in history (unbelievably, I anticipate pushback about that assertion).  I am cautious about being too cavalier in dismissing its provisions as out of date.  It is amendable and has been amended, 27 times including the 10 that comprise the Bill of Rights, right?  But it's really, really hard.  It should be hard.  But it would be better to make such changes through the legislature, and it would be preferable to avoid to the greatest extent possible making such significant changes via judicial interpretations."

+1 Well said.

I dont gloss over the Constitutions important flaws regarding the treatment of women and African Americans, but it provided a mechanism for futre generations to remedy those flaws.

That said, if there are other large diverse countries that people think have better political structures, I'd be interested in learning who and why.

[TreesAndBirds]

"And please folks, I am aware that there was political intrigue and strife among the founders.  I know they played dirty in their ways too.  But they managed to create a document that guided the formation and emergence of the greatest nation in history (unbelievably, I anticipate pushback about that assertion).  I am cautious about being too cavalier in dismissing its provisions as out of date.  It is amendable and has been amended, 27 times including the 10 that comprise the Bill of Rights, right?  But it's really, really hard.  It should be hard.  But it would be better to make such changes through the legislature, and it would be preferable to avoid to the greatest extent possible making such significant changes via judicial interpretations."

+1 Well said.

I dont gloss over the Constitutions important flaws regarding the treatment of women and African Americans, but it provided a mechanism for futre generations to remedy those flaws.

That said, if there are other large diverse countries that people think have better political structures, I'd be interested in learning who and why.

[MustardtheBallCarrier]

I love the Constitution as much as the next guy or gal, but there is also the small detail that within 100 years the country plunged into a brutal, prolonged fratricidal civil war. So, I guess success is somewhat relative.

[MustardtheBallCarrier]

I love the Constitution as much as the next guy or gal, but there is also the small detail that within 100 years the country plunged into a brutal, prolonged fratricidal civil war. So, I guess success is somewhat relative.

[ColoradoTree]

[quote author=ColoradoTree link=topic=14611.msg156721#msg156721 date=1455730604]

I've always understood that the Connecticut Compromise wasn't the Founders' broad vision of how government should ideally be, but a practical accommodation to the smaller states (which wanted equal state representation) by the larger states (which wanted proportional representation by population) in order to get a founding document that everybody could get talked into signing.  In other words, it was a settlement.  Something that got the parties moving forward again, but which neither side really loved.  I mean, yes, it was a clever idea and got the job done, but it's not as if it was written on tablets handed down by God.  I don't say that to demean its importance to the Constitutional structure, but to push back against the point that the newly sovereign states, speaking with one voice, had a unified goal from the beginning to protect minority rights by setting up this structure.  In my view, it was more about each state fighting to maximize its own power, and the Constitution reflects a multitude of different viewpoints on what our government should be, and this was the only deal that could get enough people on board while preserving our nascent union.  I think protecting minority rights was a side effect of the compromise, not its purpose.

CT, I have really enjoyed your input on this thread and I agree in general with your points in this post.  I think, though, that relegating the concept of protecting minority rights to an unintended by-product of a compromise on other matters is not correct.  I certainly never intended to assert that the Constitution was the in any way the result of a unanimous (or even majority) vision on all its aspects.

But its ultimate achievement was indeed remarkable given the diversity of perspectives and intentions of those who created it.  It could not be created today with all the special interests and the absence of trust and decorum.  Look at the constitution that was created when the European Union was created.  What was it, about 500 pages of minutia down to details about tariffs and I think even speed limits.  An absence of overarching vision and a bureaucrat's dream. 

And please folks, I am aware that there was political intrigue and strife among the founders.  I know they played dirty in their ways too.  But they managed to create a document that guided the formation and emergence of the greatest nation in history (unbelievably, I anticipate pushback about that assertion).  I am cautious about being too cavalier in dismissing its provisions as out of date.  It is amendable and has been amended, 27 times including the 10 that comprise the Bill of Rights, right?  But it's really, really hard.  It should be hard.  But it would be better to make such changes through the legislature, and it would be preferable to avoid to the greatest extent possible making such significant changes via judicial interpretations.
[/quote]

Fair enough, and thanks for the kind words (and I'll return them by saying that even where I disagree with an argument you've made, it still makes me think, and I very much appreciate the tenor of your arguments).  Though others might disagree, I think this thread has been somewhat invigorating.  I certainly agree with your characterization of the difficulty of getting the Constitution in a generally acceptable form, though I still think the principle of protecting minority interests came from a place of smaller states wanting to preserve their seat at the table.  But whatever the purpose of creating bicameral legislatures and ensuring equal state representation in the Senate, I agree that the concept that the majority cannot run roughshod over the minority finds legitimate support in the Constitution. 

And on the subject of the multitude of voices and differing opinions that led to the drafting and ultimate ratification of the Constitution, you're absolutely right, and to me, that's what makes discerning the Founders' original intent such a difficult and often frustrating task.  On really any question, some of our Founders disagreed with one another.  We often look to The Federalist Papers--and regardless of one's political affiliation, they are a fascinating read--but ultimately they were anonymous (at the time, at least--we know they were the words of Hamilton, Madison, or John Jay, depending on the particular letter, speaking for themselves and not the broader community of framers) letters to the editor of New York newspapers advocating for New Yorkers to vote in favor of ratification.  As different states chose to ratify for different reasons--and different arguments were often made to those states--and different Founders certainly had different interpretations of Constitutional language they voted to approve, there is a lot from which to choose when we analyze such original intent.  I absolutely agree that it's an important part of the puzzle, but I stop short of thinking that the text and "original intent"--as best we can discern it--is the end of any analysis into the text's meaning. 

Indeed, there is an elegant simplicity in a shorter Constitution such as ours, especially when compared to the tomes like the EU constitution or some of our state constitutions.  (Fun fact: the U.S. Constitution is, roughly, an efficient 8,500 words long. Alabama's state constitution is well over 300,000 words long, and is the longest constitution anywhere in the world.  That document has such sweeping state powers that counties lack a lot of power and thus the state constitution needs to be amended to give county boards authority to deal with dead livestock, or to assess school taxes for Huntsville, or for waste collection in Jefferson County.  892 amendments!  What a mess.)  The flip side of that is that you're addressing fewer issues directly with a short constitution, leaving resolution of open questions or difficult interpretations to a court that has to use its best judgment to fill in the blanks and apply the text to a situation that the framers didn't necessarily anticipate. 

Of course, the Constitution was not without flaws, as it implicitly blessed slavery and failed to ensure certain things we consider fundamental, like equal protection.  Those issues got addressed, ultimately, but as Mustard notes, not without the Civil War.  The post-war amendments drastically improve the Constitution, so while the Founders get major points for doing what they did, they get demerits for punting on slavery.  On one hand, it meant that our Union had time to cohere such that it was possible to survive the ultimate reckoning with our country's original sin following the Civil War, but on the other, well, slavery.  Even with those horrendous stains, it remains an inspiring document. 

Regarding the amendment process, I'm of two minds.  On one hand, I agree with you that it should be hard to change our founding document.  On the other hand, I'm alarmed by our political polarization and paralysis, and it seems as if that paralysis means that the Constitution is no longer functionally capable of being amended.  That, too, concerns me.  Ideally, I'd like for us to consider a Constitutional Convention every 50 years or so to make some changes, but in our current political climate, I don't expect that would be a very fruitful exercise (can you even imagine getting, say, New York and Alabama on the same page for revised Second Amendment language--my word, we'd rip apart at the seams!), so perhaps we're better off just leaving things as they are and muddling along. 

[ColoradoTree]

[quote author=ColoradoTree link=topic=14611.msg156721#msg156721 date=1455730604]

I've always understood that the Connecticut Compromise wasn't the Founders' broad vision of how government should ideally be, but a practical accommodation to the smaller states (which wanted equal state representation) by the larger states (which wanted proportional representation by population) in order to get a founding document that everybody could get talked into signing.  In other words, it was a settlement.  Something that got the parties moving forward again, but which neither side really loved.  I mean, yes, it was a clever idea and got the job done, but it's not as if it was written on tablets handed down by God.  I don't say that to demean its importance to the Constitutional structure, but to push back against the point that the newly sovereign states, speaking with one voice, had a unified goal from the beginning to protect minority rights by setting up this structure.  In my view, it was more about each state fighting to maximize its own power, and the Constitution reflects a multitude of different viewpoints on what our government should be, and this was the only deal that could get enough people on board while preserving our nascent union.  I think protecting minority rights was a side effect of the compromise, not its purpose.

CT, I have really enjoyed your input on this thread and I agree in general with your points in this post.  I think, though, that relegating the concept of protecting minority rights to an unintended by-product of a compromise on other matters is not correct.  I certainly never intended to assert that the Constitution was the in any way the result of a unanimous (or even majority) vision on all its aspects.

But its ultimate achievement was indeed remarkable given the diversity of perspectives and intentions of those who created it.  It could not be created today with all the special interests and the absence of trust and decorum.  Look at the constitution that was created when the European Union was created.  What was it, about 500 pages of minutia down to details about tariffs and I think even speed limits.  An absence of overarching vision and a bureaucrat's dream. 

And please folks, I am aware that there was political intrigue and strife among the founders.  I know they played dirty in their ways too.  But they managed to create a document that guided the formation and emergence of the greatest nation in history (unbelievably, I anticipate pushback about that assertion).  I am cautious about being too cavalier in dismissing its provisions as out of date.  It is amendable and has been amended, 27 times including the 10 that comprise the Bill of Rights, right?  But it's really, really hard.  It should be hard.  But it would be better to make such changes through the legislature, and it would be preferable to avoid to the greatest extent possible making such significant changes via judicial interpretations.
[/quote]

Fair enough, and thanks for the kind words (and I'll return them by saying that even where I disagree with an argument you've made, it still makes me think, and I very much appreciate the tenor of your arguments).  Though others might disagree, I think this thread has been somewhat invigorating.  I certainly agree with your characterization of the difficulty of getting the Constitution in a generally acceptable form, though I still think the principle of protecting minority interests came from a place of smaller states wanting to preserve their seat at the table.  But whatever the purpose of creating bicameral legislatures and ensuring equal state representation in the Senate, I agree that the concept that the majority cannot run roughshod over the minority finds legitimate support in the Constitution. 

And on the subject of the multitude of voices and differing opinions that led to the drafting and ultimate ratification of the Constitution, you're absolutely right, and to me, that's what makes discerning the Founders' original intent such a difficult and often frustrating task.  On really any question, some of our Founders disagreed with one another.  We often look to The Federalist Papers--and regardless of one's political affiliation, they are a fascinating read--but ultimately they were anonymous (at the time, at least--we know they were the words of Hamilton, Madison, or John Jay, depending on the particular letter, speaking for themselves and not the broader community of framers) letters to the editor of New York newspapers advocating for New Yorkers to vote in favor of ratification.  As different states chose to ratify for different reasons--and different arguments were often made to those states--and different Founders certainly had different interpretations of Constitutional language they voted to approve, there is a lot from which to choose when we analyze such original intent.  I absolutely agree that it's an important part of the puzzle, but I stop short of thinking that the text and "original intent"--as best we can discern it--is the end of any analysis into the text's meaning. 

Indeed, there is an elegant simplicity in a shorter Constitution such as ours, especially when compared to the tomes like the EU constitution or some of our state constitutions.  (Fun fact: the U.S. Constitution is, roughly, an efficient 8,500 words long. Alabama's state constitution is well over 300,000 words long, and is the longest constitution anywhere in the world.  That document has such sweeping state powers that counties lack a lot of power and thus the state constitution needs to be amended to give county boards authority to deal with dead livestock, or to assess school taxes for Huntsville, or for waste collection in Jefferson County.  892 amendments!  What a mess.)  The flip side of that is that you're addressing fewer issues directly with a short constitution, leaving resolution of open questions or difficult interpretations to a court that has to use its best judgment to fill in the blanks and apply the text to a situation that the framers didn't necessarily anticipate. 

Of course, the Constitution was not without flaws, as it implicitly blessed slavery and failed to ensure certain things we consider fundamental, like equal protection.  Those issues got addressed, ultimately, but as Mustard notes, not without the Civil War.  The post-war amendments drastically improve the Constitution, so while the Founders get major points for doing what they did, they get demerits for punting on slavery.  On one hand, it meant that our Union had time to cohere such that it was possible to survive the ultimate reckoning with our country's original sin following the Civil War, but on the other, well, slavery.  Even with those horrendous stains, it remains an inspiring document. 

Regarding the amendment process, I'm of two minds.  On one hand, I agree with you that it should be hard to change our founding document.  On the other hand, I'm alarmed by our political polarization and paralysis, and it seems as if that paralysis means that the Constitution is no longer functionally capable of being amended.  That, too, concerns me.  Ideally, I'd like for us to consider a Constitutional Convention every 50 years or so to make some changes, but in our current political climate, I don't expect that would be a very fruitful exercise (can you even imagine getting, say, New York and Alabama on the same page for revised Second Amendment language--my word, we'd rip apart at the seams!), so perhaps we're better off just leaving things as they are and muddling along. 

[Farm93]

It is sad to note that a Supreme Court vacancy thread is now up to 10 pages while the men's bball team doesn't get a thread with more than a few entries.
Crazy to me that the Stanford Law School will have a more exciting version of March Madness than Stanford's Men's hoops team this year.
Unless JD gets fired my guess is there will be more posts on the Supreme Court vacancy than hoops over the next 3 months.

Maybe we should put an OT in front of any hoops thread.

[Farm93]

It is sad to note that a Supreme Court vacancy thread is now up to 10 pages while the men's bball team doesn't get a thread with more than a few entries.
Crazy to me that the Stanford Law School will have a more exciting version of March Madness than Stanford's Men's hoops team this year.
Unless JD gets fired my guess is there will be more posts on the Supreme Court vacancy than hoops over the next 3 months.

Maybe we should put an OT in front of any hoops thread.

[ColoradoTree]

"And please folks, I am aware that there was political intrigue and strife among the founders.  I know they played dirty in their ways too.  But they managed to create a document that guided the formation and emergence of the greatest nation in history (unbelievably, I anticipate pushback about that assertion).  I am cautious about being too cavalier in dismissing its provisions as out of date.  It is amendable and has been amended, 27 times including the 10 that comprise the Bill of Rights, right?  But it's really, really hard.  It should be hard.  But it would be better to make such changes through the legislature, and it would be preferable to avoid to the greatest extent possible making such significant changes via judicial interpretations."

+1 Well said.

I dont gloss over the Constitutions important flaws regarding the treatment of women and African Americans, but it provided a mechanism for futre generations to remedy those flaws.

That said, if there are other large diverse countries that people think have better political structures, I'd be interested in learning who and why.

I'm not necessarily saying that another country has a better political structure, but in my mind, the principal failure of our tripartite government is the lack of accountability at the federal level (and at the state level as well, because states used the same federal structure of three separate branches for their own governments).  In a parliamentary system, if the government enacts a policy that you oppose, or fails to address problems you think need addressing, then the answer is simple: vote for a different party next time, and see whether going in a different direction solves your concerns.  But with our system, when we have a Republican Congress and a Democratic President and the government fails to address problems you think need addressing, who does one hold accountable when each side points to the other as the guilty party?  If you're a partisan, you blame the other side, but if you're somewhat independent or moderate, it's extremely difficult to parse out just who is to blame for a particular impasse.  It requires the average voter to study a particular policy (or history of negotiations, or whatever it is) in depth to determine who they think is pursuing a compromise in good faith and who is stonewalling, and we often view those things through ideological lenses.  That is a big, big ask we make of our voters--who often throw up their hands and blame both sides, which doesn't help--whereas parliamentary systems make accountability much easier, since it's a necessary feature of that system.  So while voters of both parties decry gridlock and Congress in general, they also generally think their own Member of Congress is a good guy/lady who does a good job, so nothing really changes and with each new election, each incumbent feels emboldened to keep acting the same way.  Lather, rinse, repeat. 

So, accountability is the main thing we see in other governments that I wish we had more of here.  I also am fond of multiparty, parliamentary systems for two main reasons: (1) they're more representative in the sense that the greater the number of parties, the more likely one exists that fits your own beliefs pretty well, rather than compromising on certain positions to fit in one of our two major parties; and (2) by their very nature, they often require significant compromise to even form a government.  Take Germany, for example.  If a third of the country supports the center-right CDU/CSU, a third of the country supports the center-left SDP, and a third of the country is split between the Greens, the free-market FDP, the far-left Linke/PDS, no one party commands a majority of support, so there has to be some compromise on who will join the government. If the smaller parties won't add up to a majority with one of the larger parties (the more common route, historically), you'll even see the two biggest parties form a so-called Grand Coalition where they negotiate over what policy proposals the joint government will pursue, which party will head which ministries, and so on, leading to a fairly centrist government.  You also don't face the same concerns about "throwing away your vote" if you generally support one of the bigger parties but feels it lacks sufficient focus on an area you care about.  So, if you're an environmentalist, you can freely vote for the Greens without worrying that you're endangering the prospect of a center-left government, since the SPD would be happy to be a senior government partner with the Greens, resulting in a more environmentalist center-left government than the SPD would have by itself.  Same thing if you are more of a free-market libertarian who wants a conservative government but with greater emphasis on libertarian ideals: vote for the FDP, who is a common coalition partner with the CDU/CSU.  The same division of opinions exist as they do in our country, but whereas we are sometimes left with one party in control of the Legislative branch and the other in control of the Executive, in systems such as Germany's, those two parties are forced to restrain their more ideological impulses to work together and govern together, or else a government won't exist and new elections will be called.  In both systems, compromise is important, but in theirs, it's required (unless, of course, one party wins an absolute majority of seats). 

Again, not saying that's a better system than ours.  I'm just saying there are nice features in democracies across the globe, and it doesn't demean our Constitution to admire those features and wonder whether we can find ways to incorporate them into our own system.

[ColoradoTree]

"And please folks, I am aware that there was political intrigue and strife among the founders.  I know they played dirty in their ways too.  But they managed to create a document that guided the formation and emergence of the greatest nation in history (unbelievably, I anticipate pushback about that assertion).  I am cautious about being too cavalier in dismissing its provisions as out of date.  It is amendable and has been amended, 27 times including the 10 that comprise the Bill of Rights, right?  But it's really, really hard.  It should be hard.  But it would be better to make such changes through the legislature, and it would be preferable to avoid to the greatest extent possible making such significant changes via judicial interpretations."

+1 Well said.

I dont gloss over the Constitutions important flaws regarding the treatment of women and African Americans, but it provided a mechanism for futre generations to remedy those flaws.

That said, if there are other large diverse countries that people think have better political structures, I'd be interested in learning who and why.

I'm not necessarily saying that another country has a better political structure, but in my mind, the principal failure of our tripartite government is the lack of accountability at the federal level (and at the state level as well, because states used the same federal structure of three separate branches for their own governments).  In a parliamentary system, if the government enacts a policy that you oppose, or fails to address problems you think need addressing, then the answer is simple: vote for a different party next time, and see whether going in a different direction solves your concerns.  But with our system, when we have a Republican Congress and a Democratic President and the government fails to address problems you think need addressing, who does one hold accountable when each side points to the other as the guilty party?  If you're a partisan, you blame the other side, but if you're somewhat independent or moderate, it's extremely difficult to parse out just who is to blame for a particular impasse.  It requires the average voter to study a particular policy (or history of negotiations, or whatever it is) in depth to determine who they think is pursuing a compromise in good faith and who is stonewalling, and we often view those things through ideological lenses.  That is a big, big ask we make of our voters--who often throw up their hands and blame both sides, which doesn't help--whereas parliamentary systems make accountability much easier, since it's a necessary feature of that system.  So while voters of both parties decry gridlock and Congress in general, they also generally think their own Member of Congress is a good guy/lady who does a good job, so nothing really changes and with each new election, each incumbent feels emboldened to keep acting the same way.  Lather, rinse, repeat. 

So, accountability is the main thing we see in other governments that I wish we had more of here.  I also am fond of multiparty, parliamentary systems for two main reasons: (1) they're more representative in the sense that the greater the number of parties, the more likely one exists that fits your own beliefs pretty well, rather than compromising on certain positions to fit in one of our two major parties; and (2) by their very nature, they often require significant compromise to even form a government.  Take Germany, for example.  If a third of the country supports the center-right CDU/CSU, a third of the country supports the center-left SDP, and a third of the country is split between the Greens, the free-market FDP, the far-left Linke/PDS, no one party commands a majority of support, so there has to be some compromise on who will join the government. If the smaller parties won't add up to a majority with one of the larger parties (the more common route, historically), you'll even see the two biggest parties form a so-called Grand Coalition where they negotiate over what policy proposals the joint government will pursue, which party will head which ministries, and so on, leading to a fairly centrist government.  You also don't face the same concerns about "throwing away your vote" if you generally support one of the bigger parties but feels it lacks sufficient focus on an area you care about.  So, if you're an environmentalist, you can freely vote for the Greens without worrying that you're endangering the prospect of a center-left government, since the SPD would be happy to be a senior government partner with the Greens, resulting in a more environmentalist center-left government than the SPD would have by itself.  Same thing if you are more of a free-market libertarian who wants a conservative government but with greater emphasis on libertarian ideals: vote for the FDP, who is a common coalition partner with the CDU/CSU.  The same division of opinions exist as they do in our country, but whereas we are sometimes left with one party in control of the Legislative branch and the other in control of the Executive, in systems such as Germany's, those two parties are forced to restrain their more ideological impulses to work together and govern together, or else a government won't exist and new elections will be called.  In both systems, compromise is important, but in theirs, it's required (unless, of course, one party wins an absolute majority of seats). 

Again, not saying that's a better system than ours.  I'm just saying there are nice features in democracies across the globe, and it doesn't demean our Constitution to admire those features and wonder whether we can find ways to incorporate them into our own system.

[ColoradoTree]

It is sad to note that a Supreme Court vacancy thread is now up to 10 pages while the men's bball team doesn't get a thread with more than a few entries.
Crazy to me that the Stanford Law School will have a more exciting version of March Madness than Stanford's Men's hoops team this year.
Unless JD gets fired my guess is there will be more posts on the Supreme Court vacancy than hoops over the next 3 months.

Maybe we should put an OT in front of any hoops thread.

I literally laughed out loud at this.  Then I felt sad.  Oh, basketball....

[ColoradoTree]

It is sad to note that a Supreme Court vacancy thread is now up to 10 pages while the men's bball team doesn't get a thread with more than a few entries.
Crazy to me that the Stanford Law School will have a more exciting version of March Madness than Stanford's Men's hoops team this year.
Unless JD gets fired my guess is there will be more posts on the Supreme Court vacancy than hoops over the next 3 months.

Maybe we should put an OT in front of any hoops thread.

I literally laughed out loud at this.  Then I felt sad.  Oh, basketball....

[terry]

Ideally, I'd like for us to consider a Constitutional Convention every 50 years or so to make some changes, but in our current political climate, I don't expect that would be a very fruitful exercise

When I think about the kind of people who probably would be selected as delegates to a constitutional convention today, I have a lot of trouble imagining that they would improve on the Constitution as it now exists. I find it easier to believe that they would do a great deal of harm.

[terry]

Ideally, I'd like for us to consider a Constitutional Convention every 50 years or so to make some changes, but in our current political climate, I don't expect that would be a very fruitful exercise

When I think about the kind of people who probably would be selected as delegates to a constitutional convention today, I have a lot of trouble imagining that they would improve on the Constitution as it now exists. I find it easier to believe that they would do a great deal of harm.

[ColoradoTree]

[quote author=ColoradoTree link=topic=14611.msg156732#msg156732 date=1455751984]
Ideally, I'd like for us to consider a Constitutional Convention every 50 years or so to make some changes, but in our current political climate, I don't expect that would be a very fruitful exercise

When I think about the kind of people who probably would be selected as delegates to a constitutional convention today, I have a lot of trouble imagining that they would improve on the Constitution as it now exists. I find it easier to believe that they would do a great deal of harm.
[/quote]

Yep.  I love the idea in theory, and recoil from it in horror in how it would likely be practiced. 

[ColoradoTree]

[quote author=ColoradoTree link=topic=14611.msg156732#msg156732 date=1455751984]
Ideally, I'd like for us to consider a Constitutional Convention every 50 years or so to make some changes, but in our current political climate, I don't expect that would be a very fruitful exercise

When I think about the kind of people who probably would be selected as delegates to a constitutional convention today, I have a lot of trouble imagining that they would improve on the Constitution as it now exists. I find it easier to believe that they would do a great deal of harm.
[/quote]

Yep.  I love the idea in theory, and recoil from it in horror in how it would likely be practiced. 

[CornFed]

"but I stop short of thinking that the text and "original intent"--as best we can discern it--is the end of any analysis into the text's meaning"

I can see that it is not the end.  I think Scalia regarded it as the means.


As to a Constitutional Convention, I too shudder to contemplate the hot mess such an enclave might produce.  Yet I have discussed with my friends and my brothers such a possibility because it is intriguing and because, basically, I'm a dreamer (like John Lennon?  8) ).  The harsh reality of our current environment, however, often makes me think of the movie Network.  We have turned the serious business of choosing a leader into a version of American Idol.  "I am mad as hell, and I'm not going to take it any more!"

[CornFed]

"but I stop short of thinking that the text and "original intent"--as best we can discern it--is the end of any analysis into the text's meaning"

I can see that it is not the end.  I think Scalia regarded it as the means.


As to a Constitutional Convention, I too shudder to contemplate the hot mess such an enclave might produce.  Yet I have discussed with my friends and my brothers such a possibility because it is intriguing and because, basically, I'm a dreamer (like John Lennon?  8) ).  The harsh reality of our current environment, however, often makes me think of the movie Network.  We have turned the serious business of choosing a leader into a version of American Idol.  "I am mad as hell, and I'm not going to take it any more!"

[terry]

The Classic example is Judicial Review itself, which is NOWHERE to be found in the Constitution, but was itself created by an act of judicial activism by the Marshall court. 

I realize it long has been argued that judicial review was "created by an act of judicial activism" in Marbury v. Madison. I do not agree.

Rather, I believe that the Framers intended the federal courts to have the power of judicial review. The historical record provides abundant, overwhelming evidence that the people who drafted, approved, and ratified the Constitution believed the power of judicial review was a proper function of the courts and intended that the Article III judicial power would include the power of judicial review.

In the interest of brevity, I will limit the following to some bullet points and a few examples, but there is much more evidence along the same lines.

- The concept of judicial review was familiar to the Framers because the state courts had exercised judicial review in a number of cases during the Articles of Confederation period. The delegates to the Constitutional Convention knew about these cases and commented on them in the debates. For example, Elbridge Gerry said: "in some states, the judges had actually set aside laws, as being against the constitution."

- A number of delegates stated at the Constitutional Convention that the federal courts would have the power of judicial review. For example, James Madison said: "A law violating a constitution established by the people themselves, would be considered by the Judges as null & void." George Mason said that federal judges "could declare an unconstitutional law void."

- Likewise, a number of delegates to state ratification conventions stated that the federal courts would have the power of judicial review. Both advocates and opponents of the Constitution argued that it allowed judicial review, though they disagreed about whether this was a good idea. For example, Oliver Ellsworth said: "If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges . . . will declare it to be void."

- The Federalist Papers described the federal courts' power of judicial review. For example: "The interpretation of the laws is the proper and peculiar province of the courts. . . . [W]henever a particular statute contravenes the Constitution, it will be the duty of the Judicial tribunals to adhere to the latter and disregard the former." (Federalist No. 78)

- The Judiciary Act of 1789, enacted by the first Congress, gave the Supreme Court appellate jurisdiction over claims that federal or state statutes were unconstitutional, thus providing a mechanism for judicial review.

- In the period between the adoption of the Constitution and the Marbury case in 1803, there were dozens of cases in which the lower federal courts and state courts exercised the power of judicial review. Judicial review was known, accepted, and applied well before Marbury.

I think the idea that the Supreme Court invented judicial review out of whole cloth in Marbury is just plain wrong. That idea is thoroughly contradicted by the historical record. The history leaves little doubt that the founders considered judicial review to be a proper function of the courts and intended the Article III courts to have the power of judicial review.

[terry]

The Classic example is Judicial Review itself, which is NOWHERE to be found in the Constitution, but was itself created by an act of judicial activism by the Marshall court. 

I realize it long has been argued that judicial review was "created by an act of judicial activism" in Marbury v. Madison. I do not agree.

Rather, I believe that the Framers intended the federal courts to have the power of judicial review. The historical record provides abundant, overwhelming evidence that the people who drafted, approved, and ratified the Constitution believed the power of judicial review was a proper function of the courts and intended that the Article III judicial power would include the power of judicial review.

In the interest of brevity, I will limit the following to some bullet points and a few examples, but there is much more evidence along the same lines.

- The concept of judicial review was familiar to the Framers because the state courts had exercised judicial review in a number of cases during the Articles of Confederation period. The delegates to the Constitutional Convention knew about these cases and commented on them in the debates. For example, Elbridge Gerry said: "in some states, the judges had actually set aside laws, as being against the constitution."

- A number of delegates stated at the Constitutional Convention that the federal courts would have the power of judicial review. For example, James Madison said: "A law violating a constitution established by the people themselves, would be considered by the Judges as null & void." George Mason said that federal judges "could declare an unconstitutional law void."

- Likewise, a number of delegates to state ratification conventions stated that the federal courts would have the power of judicial review. Both advocates and opponents of the Constitution argued that it allowed judicial review, though they disagreed about whether this was a good idea. For example, Oliver Ellsworth said: "If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges . . . will declare it to be void."

- The Federalist Papers described the federal courts' power of judicial review. For example: "The interpretation of the laws is the proper and peculiar province of the courts. . . . [W]henever a particular statute contravenes the Constitution, it will be the duty of the Judicial tribunals to adhere to the latter and disregard the former." (Federalist No. 78)

- The Judiciary Act of 1789, enacted by the first Congress, gave the Supreme Court appellate jurisdiction over claims that federal or state statutes were unconstitutional, thus providing a mechanism for judicial review.

- In the period between the adoption of the Constitution and the Marbury case in 1803, there were dozens of cases in which the lower federal courts and state courts exercised the power of judicial review. Judicial review was known, accepted, and applied well before Marbury.

I think the idea that the Supreme Court invented judicial review out of whole cloth in Marbury is just plain wrong. That idea is thoroughly contradicted by the historical record. The history leaves little doubt that the founders considered judicial review to be a proper function of the courts and intended the Article III courts to have the power of judicial review.

[socalstanfan1]

Terry, I totally agree with you, and I think you have excellently set forth the case that a large number of the people responsible for creating the constitution agreed with, and assumed the courts would have, the power of Judicial Review.  However, a strict reading of the Constitution, one limited to the text itself (as Scalia and current legal fundamentalism claims to adhere to) finds it nowhere in the actual document.  And I'm fairly certain I could find some Anti-Federalists at the time who would state their anxiety about giving too much power to the courts.

To be clear, I'm not in favor of getting rid of judicial review.  Just pointing out that even the most strictly conservative "textualists" at some point must be making judgments about which voices to listen to, which interpretations to endorse and accept...much like fundamentalist religious thinkers who end up deciding which particular portion of exceptionally complex and sometimes contradictory texts they want to focus on.

[socalstanfan1]

Terry, I totally agree with you, and I think you have excellently set forth the case that a large number of the people responsible for creating the constitution agreed with, and assumed the courts would have, the power of Judicial Review.  However, a strict reading of the Constitution, one limited to the text itself (as Scalia and current legal fundamentalism claims to adhere to) finds it nowhere in the actual document.  And I'm fairly certain I could find some Anti-Federalists at the time who would state their anxiety about giving too much power to the courts.

To be clear, I'm not in favor of getting rid of judicial review.  Just pointing out that even the most strictly conservative "textualists" at some point must be making judgments about which voices to listen to, which interpretations to endorse and accept...much like fundamentalist religious thinkers who end up deciding which particular portion of exceptionally complex and sometimes contradictory texts they want to focus on.

[CornFed]

I love the Constitution as much as the next guy or gal, but there is also the small detail that within 100 years the country plunged into a brutal, prolonged fratricidal civil war. So, I guess success is somewhat relative.

This observation is true, but I truly believe that part of the beauty of the document is that it was crafted at a point when resolution of the issue of slavery was clearly not achievable.  As I understand it, Jefferson drafted the Virginia constitution with the words, "life, liberty, property and happiness" or some such and the term "property" was a sop to slave owners.  That was, obviously, deleted from the Constitution.

I think that it is unfair to apply today's mores to situations and people in the distant past.  I certainly understand the contradiction inherent in writing the Bill of Rights and yet owning slaves.  I recognize, however, that people like John Adams, who unilaterally made his slaves free men and women, were very much the exception.  It simply wasn't perceived with the horror we have now when we hear about it.

So essentially, they drafted around the issue.  De Toqueville, whom I referred to earlier, saw it right off during his journey through the United States and predicted the conflict would manifest eventually.  I think he saw the gross contradiction in the founding document and the institution of slavery.  So, in effect, the document caused the Civil War.  It also provided a means to be amended to begin the resolution of the contradiction in terms consistent with human liberty. 

It has taken more than a century to unfold, but a series of state and Federal laws have been enacted to protect and promote the liberty of every human being.  We're not done yet, but denial of human dignity and freedom has been deligitimized.  We no longer have laws depriving people their individual right to pursue life, liberty and happiness.  Now we are dealing with de facto racism, though I would argue that even on that basis we are headed in the right direction.

[CornFed]

I love the Constitution as much as the next guy or gal, but there is also the small detail that within 100 years the country plunged into a brutal, prolonged fratricidal civil war. So, I guess success is somewhat relative.

This observation is true, but I truly believe that part of the beauty of the document is that it was crafted at a point when resolution of the issue of slavery was clearly not achievable.  As I understand it, Jefferson drafted the Virginia constitution with the words, "life, liberty, property and happiness" or some such and the term "property" was a sop to slave owners.  That was, obviously, deleted from the Constitution.

I think that it is unfair to apply today's mores to situations and people in the distant past.  I certainly understand the contradiction inherent in writing the Bill of Rights and yet owning slaves.  I recognize, however, that people like John Adams, who unilaterally made his slaves free men and women, were very much the exception.  It simply wasn't perceived with the horror we have now when we hear about it.

So essentially, they drafted around the issue.  De Toqueville, whom I referred to earlier, saw it right off during his journey through the United States and predicted the conflict would manifest eventually.  I think he saw the gross contradiction in the founding document and the institution of slavery.  So, in effect, the document caused the Civil War.  It also provided a means to be amended to begin the resolution of the contradiction in terms consistent with human liberty. 

It has taken more than a century to unfold, but a series of state and Federal laws have been enacted to protect and promote the liberty of every human being.  We're not done yet, but denial of human dignity and freedom has been deligitimized.  We no longer have laws depriving people their individual right to pursue life, liberty and happiness.  Now we are dealing with de facto racism, though I would argue that even on that basis we are headed in the right direction.

[dabigv13]

[quote author=TreesAndBirds link=topic=14611.msg156726#msg156726 date=1455736757]
"And please folks, I am aware that there was political intrigue and strife among the founders.  I know they played dirty in their ways too.  But they managed to create a document that guided the formation and emergence of the greatest nation in history (unbelievably, I anticipate pushback about that assertion).  I am cautious about being too cavalier in dismissing its provisions as out of date.  It is amendable and has been amended, 27 times including the 10 that comprise the Bill of Rights, right?  But it's really, really hard.  It should be hard.  But it would be better to make such changes through the legislature, and it would be preferable to avoid to the greatest extent possible making such significant changes via judicial interpretations."

+1 Well said.

I dont gloss over the Constitutions important flaws regarding the treatment of women and African Americans, but it provided a mechanism for futre generations to remedy those flaws.

That said, if there are other large diverse countries that people think have better political structures, I'd be interested in learning who and why.

I'm not necessarily saying that another country has a better political structure, but in my mind, the principal failure of our tripartite government is the lack of accountability at the federal level (and at the state level as well, because states used the same federal structure of three separate branches for their own governments).  In a parliamentary system, if the government enacts a policy that you oppose, or fails to address problems you think need addressing, then the answer is simple: vote for a different party next time, and see whether going in a different direction solves your concerns.  But with our system, when we have a Republican Congress and a Democratic President and the government fails to address problems you think need addressing, who does one hold accountable when each side points to the other as the guilty party?  If you're a partisan, you blame the other side, but if you're somewhat independent or moderate, it's extremely difficult to parse out just who is to blame for a particular impasse.  It requires the average voter to study a particular policy (or history of negotiations, or whatever it is) in depth to determine who they think is pursuing a compromise in good faith and who is stonewalling, and we often view those things through ideological lenses.  That is a big, big ask we make of our voters--who often throw up their hands and blame both sides, which doesn't help--whereas parliamentary systems make accountability much easier, since it's a necessary feature of that system.  So while voters of both parties decry gridlock and Congress in general, they also generally think their own Member of Congress is a good guy/lady who does a good job, so nothing really changes and with each new election, each incumbent feels emboldened to keep acting the same way.  Lather, rinse, repeat. 

So, accountability is the main thing we see in other governments that I wish we had more of here.  I also am fond of multiparty, parliamentary systems for two main reasons: (1) they're more representative in the sense that the greater the number of parties, the more likely one exists that fits your own beliefs pretty well, rather than compromising on certain positions to fit in one of our two major parties; and (2) by their very nature, they often require significant compromise to even form a government.  Take Germany, for example.  If a third of the country supports the center-right CDU/CSU, a third of the country supports the center-left SDP, and a third of the country is split between the Greens, the free-market FDP, the far-left Linke/PDS, no one party commands a majority of support, so there has to be some compromise on who will join the government. If the smaller parties won't add up to a majority with one of the larger parties (the more common route, historically), you'll even see the two biggest parties form a so-called Grand Coalition where they negotiate over what policy proposals the joint government will pursue, which party will head which ministries, and so on, leading to a fairly centrist government.  You also don't face the same concerns about "throwing away your vote" if you generally support one of the bigger parties but feels it lacks sufficient focus on an area you care about.  So, if you're an environmentalist, you can freely vote for the Greens without worrying that you're endangering the prospect of a center-left government, since the SPD would be happy to be a senior government partner with the Greens, resulting in a more environmentalist center-left government than the SPD would have by itself.  Same thing if you are more of a free-market libertarian who wants a conservative government but with greater emphasis on libertarian ideals: vote for the FDP, who is a common coalition partner with the CDU/CSU.  The same division of opinions exist as they do in our country, but whereas we are sometimes left with one party in control of the Legislative branch and the other in control of the Executive, in systems such as Germany's, those two parties are forced to restrain their more ideological impulses to work together and govern together, or else a government won't exist and new elections will be called.  In both systems, compromise is important, but in theirs, it's required (unless, of course, one party wins an absolute majority of seats). 

Again, not saying that's a better system than ours.  I'm just saying there are nice features in democracies across the globe, and it doesn't demean our Constitution to admire those features and wonder whether we can find ways to incorporate them into our own system.
[/quote]

You could also take Italy as an example of a multiparty parliamentary system, where ain't shit gets done. I think they average a vote to dissolve every year or so.

[dabigv13]

[quote author=TreesAndBirds link=topic=14611.msg156726#msg156726 date=1455736757]
"And please folks, I am aware that there was political intrigue and strife among the founders.  I know they played dirty in their ways too.  But they managed to create a document that guided the formation and emergence of the greatest nation in history (unbelievably, I anticipate pushback about that assertion).  I am cautious about being too cavalier in dismissing its provisions as out of date.  It is amendable and has been amended, 27 times including the 10 that comprise the Bill of Rights, right?  But it's really, really hard.  It should be hard.  But it would be better to make such changes through the legislature, and it would be preferable to avoid to the greatest extent possible making such significant changes via judicial interpretations."

+1 Well said.

I dont gloss over the Constitutions important flaws regarding the treatment of women and African Americans, but it provided a mechanism for futre generations to remedy those flaws.

That said, if there are other large diverse countries that people think have better political structures, I'd be interested in learning who and why.

I'm not necessarily saying that another country has a better political structure, but in my mind, the principal failure of our tripartite government is the lack of accountability at the federal level (and at the state level as well, because states used the same federal structure of three separate branches for their own governments).  In a parliamentary system, if the government enacts a policy that you oppose, or fails to address problems you think need addressing, then the answer is simple: vote for a different party next time, and see whether going in a different direction solves your concerns.  But with our system, when we have a Republican Congress and a Democratic President and the government fails to address problems you think need addressing, who does one hold accountable when each side points to the other as the guilty party?  If you're a partisan, you blame the other side, but if you're somewhat independent or moderate, it's extremely difficult to parse out just who is to blame for a particular impasse.  It requires the average voter to study a particular policy (or history of negotiations, or whatever it is) in depth to determine who they think is pursuing a compromise in good faith and who is stonewalling, and we often view those things through ideological lenses.  That is a big, big ask we make of our voters--who often throw up their hands and blame both sides, which doesn't help--whereas parliamentary systems make accountability much easier, since it's a necessary feature of that system.  So while voters of both parties decry gridlock and Congress in general, they also generally think their own Member of Congress is a good guy/lady who does a good job, so nothing really changes and with each new election, each incumbent feels emboldened to keep acting the same way.  Lather, rinse, repeat. 

So, accountability is the main thing we see in other governments that I wish we had more of here.  I also am fond of multiparty, parliamentary systems for two main reasons: (1) they're more representative in the sense that the greater the number of parties, the more likely one exists that fits your own beliefs pretty well, rather than compromising on certain positions to fit in one of our two major parties; and (2) by their very nature, they often require significant compromise to even form a government.  Take Germany, for example.  If a third of the country supports the center-right CDU/CSU, a third of the country supports the center-left SDP, and a third of the country is split between the Greens, the free-market FDP, the far-left Linke/PDS, no one party commands a majority of support, so there has to be some compromise on who will join the government. If the smaller parties won't add up to a majority with one of the larger parties (the more common route, historically), you'll even see the two biggest parties form a so-called Grand Coalition where they negotiate over what policy proposals the joint government will pursue, which party will head which ministries, and so on, leading to a fairly centrist government.  You also don't face the same concerns about "throwing away your vote" if you generally support one of the bigger parties but feels it lacks sufficient focus on an area you care about.  So, if you're an environmentalist, you can freely vote for the Greens without worrying that you're endangering the prospect of a center-left government, since the SPD would be happy to be a senior government partner with the Greens, resulting in a more environmentalist center-left government than the SPD would have by itself.  Same thing if you are more of a free-market libertarian who wants a conservative government but with greater emphasis on libertarian ideals: vote for the FDP, who is a common coalition partner with the CDU/CSU.  The same division of opinions exist as they do in our country, but whereas we are sometimes left with one party in control of the Legislative branch and the other in control of the Executive, in systems such as Germany's, those two parties are forced to restrain their more ideological impulses to work together and govern together, or else a government won't exist and new elections will be called.  In both systems, compromise is important, but in theirs, it's required (unless, of course, one party wins an absolute majority of seats). 

Again, not saying that's a better system than ours.  I'm just saying there are nice features in democracies across the globe, and it doesn't demean our Constitution to admire those features and wonder whether we can find ways to incorporate them into our own system.
[/quote]

You could also take Italy as an example of a multiparty parliamentary system, where ain't shit gets done. I think they average a vote to dissolve every year or so.

[terry]

Terry, I totally agree with you, and I think you have excellently set forth the case that a large number of the people responsible for creating the constitution agreed with, and assumed the courts would have, the power of Judicial Review.  However, a strict reading of the Constitution, one limited to the text itself (as Scalia and current legal fundamentalism claims to adhere to) finds it nowhere in the actual document.

I somewhat disagree with this. I think judicial review is there in the text of the Constitution. The Framers wrote that the "judicial power of the United States" is vested in the Supreme Court and the lower federal courts. So the question is, what did the Framers mean by "the judicial power"? I think there is compelling historical evidence that the widely understood public meaning of "judicial power" at that time included the power of judicial review. It was widely accepted at the time that it was the duty of the courts to apply the law, and when a conflict existed, to treat the fundamental law as superior to an inconsistent statute. That was seen as a proper role of courts, and thus was included in the "judicial power."

The Framers went on to give the federal courts the necessary mechanisms to exercise judicial review. They declared the Constitution to be the supreme law of the land, and they gave the federal courts jurisdiction over claims involving the Constitution. That allowed the federal courts to determine whether any federal or state statute was consistent with the Constitution.

Given they believed the "judicial power" includes judicial review, this was all the Framers needed to do in the text of the Constitution. Once we understand that the public meaning of "judicial power" at that time included judicial review, we can conclude that the text contains a sufficient basis for judicial review to satisfy the concerns of originalists or textualists.

And I'm fairly certain I could find some Anti-Federalists at the time who would state their anxiety about giving too much power to the courts.

Yes indeed, some Anti-Federalists argued against giving such power to the federal courts. They opposed the ratification of the Constitution precisely because they believed that the Constitution does, in fact, provide for judicial review by the federal courts, and they thought this was a bad idea.

For example, in the Anti-Federalist papers, Robert Yates wrote: "[color=rgb(37, 37, 37)]The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void." Yates objected to this grant of power, but it's clear that he believed the Constitution does grant this power.[/color]

[color=rgb(37, 37, 37)]So, both the Federalists and the Anti-Federalists agreed that the federal courts would have the power of judicial review, though they disagreed about whether this was a good thing.[/color]

[terry]

Terry, I totally agree with you, and I think you have excellently set forth the case that a large number of the people responsible for creating the constitution agreed with, and assumed the courts would have, the power of Judicial Review.  However, a strict reading of the Constitution, one limited to the text itself (as Scalia and current legal fundamentalism claims to adhere to) finds it nowhere in the actual document.

I somewhat disagree with this. I think judicial review is there in the text of the Constitution. The Framers wrote that the "judicial power of the United States" is vested in the Supreme Court and the lower federal courts. So the question is, what did the Framers mean by "the judicial power"? I think there is compelling historical evidence that the widely understood public meaning of "judicial power" at that time included the power of judicial review. It was widely accepted at the time that it was the duty of the courts to apply the law, and when a conflict existed, to treat the fundamental law as superior to an inconsistent statute. That was seen as a proper role of courts, and thus was included in the "judicial power."

The Framers went on to give the federal courts the necessary mechanisms to exercise judicial review. They declared the Constitution to be the supreme law of the land, and they gave the federal courts jurisdiction over claims involving the Constitution. That allowed the federal courts to determine whether any federal or state statute was consistent with the Constitution.

Given they believed the "judicial power" includes judicial review, this was all the Framers needed to do in the text of the Constitution. Once we understand that the public meaning of "judicial power" at that time included judicial review, we can conclude that the text contains a sufficient basis for judicial review to satisfy the concerns of originalists or textualists.

And I'm fairly certain I could find some Anti-Federalists at the time who would state their anxiety about giving too much power to the courts.

Yes indeed, some Anti-Federalists argued against giving such power to the federal courts. They opposed the ratification of the Constitution precisely because they believed that the Constitution does, in fact, provide for judicial review by the federal courts, and they thought this was a bad idea.

For example, in the Anti-Federalist papers, Robert Yates wrote: "[color=rgb(37, 37, 37)]The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void." Yates objected to this grant of power, but it's clear that he believed the Constitution does grant this power.[/color]

[color=rgb(37, 37, 37)]So, both the Federalists and the Anti-Federalists agreed that the federal courts would have the power of judicial review, though they disagreed about whether this was a good thing.[/color]

[81alum]

[quote author=81alum link=topic=14611.msg156690#msg156690 date=1455683753]
The Classic example is Judicial Review itself, which is NOWHERE to be found in the Constitution, but was itself created by an act of judicial activism by the Marshall court. 

I realize it long has been argued that judicial review was "created by an act of judicial activism" in Marbury v. Madison. I do not agree.

Rather, I believe that the Framers intended the federal courts to have the power of judicial review. The historical record provides abundant, overwhelming evidence that the people who drafted, approved, and ratified the Constitution believed the power of judicial review was a proper function of the courts and intended that the Article III judicial power would include the power of judicial review.

In the interest of brevity, I will limit the following to some bullet points and a few examples, but there is much more evidence along the same lines.

- The concept of judicial review was familiar to the Framers because the state courts had exercised judicial review in a number of cases during the Articles of Confederation period. The delegates to the Constitutional Convention knew about these cases and commented on them in the debates. For example, Elbridge Gerry said: "in some states, the judges had actually set aside laws, as being against the constitution."

- A number of delegates stated at the Constitutional Convention that the federal courts would have the power of judicial review. For example, James Madison said: "A law violating a constitution established by the people themselves, would be considered by the Judges as null & void." George Mason said that federal judges "could declare an unconstitutional law void."

- Likewise, a number of delegates to state ratification conventions stated that the federal courts would have the power of judicial review. Both advocates and opponents of the Constitution argued that it allowed judicial review, though they disagreed about whether this was a good idea. For example, Oliver Ellsworth said: "If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges . . . will declare it to be void."

- The Federalist Papers described the federal courts' power of judicial review. For example: "The interpretation of the laws is the proper and peculiar province of the courts. . . . [W]henever a particular statute contravenes the Constitution, it will be the duty of the Judicial tribunals to adhere to the latter and disregard the former." (Federalist No. 78)

- The Judiciary Act of 1789, enacted by the first Congress, gave the Supreme Court appellate jurisdiction over claims that federal or state statutes were unconstitutional, thus providing a mechanism for judicial review.

- In the period between the adoption of the Constitution and the Marbury case in 1803, there were dozens of cases in which the lower federal courts and state courts exercised the power of judicial review. Judicial review was known, accepted, and applied well before Marbury.

I think the idea that the Supreme Court invented judicial review out of whole cloth in Marbury is just plain wrong. That idea is thoroughly contradicted by the historical record. The history leaves little doubt that the founders considered judicial review to be a proper function of the courts and intended the Article III courts to have the power of judicial review.
[/quote]

Yes, and I know Jack Rakove (Professor of History at Stanford) has made this argument.  I certainly do not believe that judicial review was invented out of whole cloth.  There were many precedents at the state level before Marbury.  And yes, some delegates argued that it should be assumed.  People make all kinds of arguments--but until it is written and people vote on the language, it is not part of the Constitution, according to the Scalias of the world.  The point I am making is not whether Judicial Review should have been incorporated into our government on the basis of past precedent.  The point is that Judicial Review is inconsistent with a strict constructionist approach to the Constitution.  To a strict constructionist it should not matter that there were precedents for j.r., nor would it matter that a few delegates voiced their opinion that it was implied somewhere within that exceptionally sketchy Article III.  All that would matter is whether the Constitution literally included it and whether the people ratified it.

In an interesting way I think Hamilton supports me on this.  I like Hamilton's argument in 78--it is an elegant theory.  For Hamilton, judicial review is necessary because the status of the Constitution is different from other laws.  It is a fundamental law not because it was first or occupies a particular piece of parchment--it is a fundamental law because only the Constitution was ratified directly by the people (except it wasn't--but that is another argument.)  Well, the people never did ratify judicial review in any way that was obvious to them.  Many were angry--Jefferson most especially--by what they regarded as an unconstitutional power grab by the SC.

By the way, I like judicial review.  I think Hamilton's argument is sound.  I wish he had stuck around at the convention for long enough to persuade the delegates to enshrine that principle in writing.  But he didn't, and they didn't, and so the most important power of the judicial branch of our government depends upon interpreting history and not upon a piece of text. 

I'm fine with that.  But any strict constructionist who strikes down a law as unconstitutional is, in my view, practicing hypocrisy.   

[81alum]

[quote author=81alum link=topic=14611.msg156690#msg156690 date=1455683753]
The Classic example is Judicial Review itself, which is NOWHERE to be found in the Constitution, but was itself created by an act of judicial activism by the Marshall court. 

I realize it long has been argued that judicial review was "created by an act of judicial activism" in Marbury v. Madison. I do not agree.

Rather, I believe that the Framers intended the federal courts to have the power of judicial review. The historical record provides abundant, overwhelming evidence that the people who drafted, approved, and ratified the Constitution believed the power of judicial review was a proper function of the courts and intended that the Article III judicial power would include the power of judicial review.

In the interest of brevity, I will limit the following to some bullet points and a few examples, but there is much more evidence along the same lines.

- The concept of judicial review was familiar to the Framers because the state courts had exercised judicial review in a number of cases during the Articles of Confederation period. The delegates to the Constitutional Convention knew about these cases and commented on them in the debates. For example, Elbridge Gerry said: "in some states, the judges had actually set aside laws, as being against the constitution."

- A number of delegates stated at the Constitutional Convention that the federal courts would have the power of judicial review. For example, James Madison said: "A law violating a constitution established by the people themselves, would be considered by the Judges as null & void." George Mason said that federal judges "could declare an unconstitutional law void."

- Likewise, a number of delegates to state ratification conventions stated that the federal courts would have the power of judicial review. Both advocates and opponents of the Constitution argued that it allowed judicial review, though they disagreed about whether this was a good idea. For example, Oliver Ellsworth said: "If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges . . . will declare it to be void."

- The Federalist Papers described the federal courts' power of judicial review. For example: "The interpretation of the laws is the proper and peculiar province of the courts. . . . [W]henever a particular statute contravenes the Constitution, it will be the duty of the Judicial tribunals to adhere to the latter and disregard the former." (Federalist No. 78)

- The Judiciary Act of 1789, enacted by the first Congress, gave the Supreme Court appellate jurisdiction over claims that federal or state statutes were unconstitutional, thus providing a mechanism for judicial review.

- In the period between the adoption of the Constitution and the Marbury case in 1803, there were dozens of cases in which the lower federal courts and state courts exercised the power of judicial review. Judicial review was known, accepted, and applied well before Marbury.

I think the idea that the Supreme Court invented judicial review out of whole cloth in Marbury is just plain wrong. That idea is thoroughly contradicted by the historical record. The history leaves little doubt that the founders considered judicial review to be a proper function of the courts and intended the Article III courts to have the power of judicial review.
[/quote]

Yes, and I know Jack Rakove (Professor of History at Stanford) has made this argument.  I certainly do not believe that judicial review was invented out of whole cloth.  There were many precedents at the state level before Marbury.  And yes, some delegates argued that it should be assumed.  People make all kinds of arguments--but until it is written and people vote on the language, it is not part of the Constitution, according to the Scalias of the world.  The point I am making is not whether Judicial Review should have been incorporated into our government on the basis of past precedent.  The point is that Judicial Review is inconsistent with a strict constructionist approach to the Constitution.  To a strict constructionist it should not matter that there were precedents for j.r., nor would it matter that a few delegates voiced their opinion that it was implied somewhere within that exceptionally sketchy Article III.  All that would matter is whether the Constitution literally included it and whether the people ratified it.

In an interesting way I think Hamilton supports me on this.  I like Hamilton's argument in 78--it is an elegant theory.  For Hamilton, judicial review is necessary because the status of the Constitution is different from other laws.  It is a fundamental law not because it was first or occupies a particular piece of parchment--it is a fundamental law because only the Constitution was ratified directly by the people (except it wasn't--but that is another argument.)  Well, the people never did ratify judicial review in any way that was obvious to them.  Many were angry--Jefferson most especially--by what they regarded as an unconstitutional power grab by the SC.

By the way, I like judicial review.  I think Hamilton's argument is sound.  I wish he had stuck around at the convention for long enough to persuade the delegates to enshrine that principle in writing.  But he didn't, and they didn't, and so the most important power of the judicial branch of our government depends upon interpreting history and not upon a piece of text. 

I'm fine with that.  But any strict constructionist who strikes down a law as unconstitutional is, in my view, practicing hypocrisy.   

[82 Card]

[quote author=terry link=topic=14611.msg156736#msg156736 date=1455754330]
[quote author=ColoradoTree link=topic=14611.msg156732#msg156732 date=1455751984]
Ideally, I'd like for us to consider a Constitutional Convention every 50 years or so to make some changes, but in our current political climate, I don't expect that would be a very fruitful exercise

When I think about the kind of people who probably would be selected as delegates to a constitutional convention today, I have a lot of trouble imagining that they would improve on the Constitution as it now exists. I find it easier to believe that they would do a great deal of harm.
[/quote]

Yep.  I love the idea in theory, and recoil from it in horror in how it would likely be practiced.
[/quote]

In my college years it was the eurocommunist professors that argued for a constitutional convention. More recently, I hear the same arguments from the far right. Given attraction of the idea to both extremes, I'm against it.

I also sometimes wonder how the original constitutional convention would have played out on Twitter. I can't see things working out well if some of the correspondence of the founders had been broadcast instantly to all.

[82 Card]

[quote author=terry link=topic=14611.msg156736#msg156736 date=1455754330]
[quote author=ColoradoTree link=topic=14611.msg156732#msg156732 date=1455751984]
Ideally, I'd like for us to consider a Constitutional Convention every 50 years or so to make some changes, but in our current political climate, I don't expect that would be a very fruitful exercise

When I think about the kind of people who probably would be selected as delegates to a constitutional convention today, I have a lot of trouble imagining that they would improve on the Constitution as it now exists. I find it easier to believe that they would do a great deal of harm.
[/quote]

Yep.  I love the idea in theory, and recoil from it in horror in how it would likely be practiced.
[/quote]

In my college years it was the eurocommunist professors that argued for a constitutional convention. More recently, I hear the same arguments from the far right. Given attraction of the idea to both extremes, I'm against it.

I also sometimes wonder how the original constitutional convention would have played out on Twitter. I can't see things working out well if some of the correspondence of the founders had been broadcast instantly to all.

[ThePassionOfTheChryst]

I also sometimes wonder how the original constitutional convention would have played out on Twitter. I can't see things working out well if some of the correspondence of the founders had been broadcast instantly to all.

Readig those tweets now, two centuries later,would be both horrifying and thoroughly amusing.

I wonder which of our founders would have had the sassiest tweets.  My money is on Franklin for driest wit.

[ThePassionOfTheChryst]

I also sometimes wonder how the original constitutional convention would have played out on Twitter. I can't see things working out well if some of the correspondence of the founders had been broadcast instantly to all.

Readig those tweets now, two centuries later,would be both horrifying and thoroughly amusing.

I wonder which of our founders would have had the sassiest tweets.  My money is on Franklin for driest wit.

[DC]

Obama declines to attend Justice Scalia's funeral.

[DC]

Obama declines to attend Justice Scalia's funeral.

[FarmBoy]

Perhaps I'm in garvin's target demo of "left of center", but I've found following this thread to be informative, entertaining, and generally pretty civil, especially when I compare it to some of the discussion that's broken out amongst friends and relatives on Facebook. Sure, there's the odd turd thrown out there, but in general I think people have been respectful and genuinely engaged. And I appreciate the perspectives presented on both sides.

The story on NPR, my primary source of news and editorial outside of the CardBoard, indicated that several GoP senators have walked back their pronouncements in the past few days, realizing how little there is to gain to appear obstructionist. I haven't heard a single Dem claim that Obama's nominee should be confirmed out of hand, only that there be a genuine process to evaluate his nominee and to consider the fact that Obama was re-elected with a 5M vote majority as an indication of the people having spoken on his judicial nominees, policies and leadership.

Anyway, thanks to the policy and history wonks on this board for enlightening me.

[FarmBoy]

Perhaps I'm in garvin's target demo of "left of center", but I've found following this thread to be informative, entertaining, and generally pretty civil, especially when I compare it to some of the discussion that's broken out amongst friends and relatives on Facebook. Sure, there's the odd turd thrown out there, but in general I think people have been respectful and genuinely engaged. And I appreciate the perspectives presented on both sides.

The story on NPR, my primary source of news and editorial outside of the CardBoard, indicated that several GoP senators have walked back their pronouncements in the past few days, realizing how little there is to gain to appear obstructionist. I haven't heard a single Dem claim that Obama's nominee should be confirmed out of hand, only that there be a genuine process to evaluate his nominee and to consider the fact that Obama was re-elected with a 5M vote majority as an indication of the people having spoken on his judicial nominees, policies and leadership.

Anyway, thanks to the policy and history wonks on this board for enlightening me.