Constitution, Executive and Legislative branches, but no Judiciary (Supreme Court)? (activist, accuse)
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The problem with the SCOTUS is that it's a political court that makes decisions based on political positions and not based on the law. It's a very tough situation to get around when the entire justice system of the USA is very very political in nature.
We don't have even close to that situation here in Canada. Our justice system is very unpolitical in nature because they are not connected very closely to the government at all. They are "The Crown" which is permanent while the government is political and changes all of the time.
We also have a very interesting clause in our constitution called, "The notwithstanding clause". If the federal government or any of the provincial governments passes a law that the supreme court rules unconstitutional the government has recourse. It can invoke the notwithstanding clause and over ride the courts findings. This law now becomes the defacto law for a period of 5 years at which time the government in question must bring it before the legislature to be passed again.
This clause has two quite different effects. It prevents the court from legislating from the bench and making decisions in any partisan manner. They rule on the law alone as they surely do not want to be over ridden by the government.
It gives the people represented by the government the ability to pass a law that maybe is very badly needed but is not necessarily completely constitutional. If such a law worked out badly you can be absolutely sure that both it and the government that invoked the clause would fall in the next election. Governments will invoke this clause at their own peril and it has only been used once since the constitution was signed in 1982. The province of Quebec operates under a language law called bill 101 that is clearly unconstitutional but it works and is very effective for Quebec from being overwhelmed by the English language.
Well, Congress can overrule the Supreme Court. If they have a 2/3rds majority and 3/4 of the States also agree.
Well, that's just it -- Congress can't, they can just send the idea to the states. In the meantime, in the months or years that it takes 38 states to sign on, the USSC's ruling holds.
I swear, Justice Kennedy isn't perfect, but it was a wonderful day in 1987 when we got Kennedy instead of choice # 1, Bork!
The problem with the SCOTUS is that it's a political court that makes decisions based on political positions and not based on the law. It's a very tough situation to get around when the entire justice system of the USA is very very political in nature.
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If you're from Canada, how would you know? You do realize that many people (like myself) disagree with you? Please explain how SCOTUS is "political in nature," and cite an example.
We don't have even close to that situation here in Canada. Our justice system is very unpolitical in nature because they are not connected very closely to the government at all. They are "The Crown" which is permanent while the government is political and changes all of the time.
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Please explain. Our justices are appointed by the President (and confirmed by the Senate-another part of our system of checks and balances) but once on the bench they are free of political control. Who appoints and confirms your justices? Or are they elected? (I'll do a quick Google search in a minute..)
We also have a very interesting clause in our constitution called, "The notwithstanding clause". If the federal government or any of the provincial governments passes a law that the supreme court rules unconstitutional the government has recourse. It can invoke the notwithstanding clause and over ride the courts findings. This law now becomes the defacto law for a period of 5 years at which time the government in question must bring it before the legislature to be passed again.
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Then why have a Supreme Court? That seems like too much power for one branch of government.
This clause has two quite different effects. It prevents the court from legislating from the bench and making decisions in any partisan manner. They rule on the law alone as they surely do not want to be over ridden by the government.
It gives the people represented by the government the ability to pass a law that maybe is very badly needed but is not necessarily completely constitutional.
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Our Constitution is the written document stating how the rights of the people are to be protected from the government. It is the very basis and foundation for our civilization. It's like the Bible. It can not be violated, only amended, or else why have it?
If such a law worked out badly you can be absolutely sure that both it and the government that invoked the clause would fall in the next election. Governments will invoke this clause at their own peril and it has only been used once since the constitution was signed in 1982. The province of Quebec operates under a language law called bill 101 that is clearly unconstitutional but it works and is very effective for Quebec from being overwhelmed by the English language.
There is more than one way to skin a cat!!!!!
Why do you even have a Constitution if your government can use a loop-hole to violate it? I'll take our system of checks and balances, where no one branch can have too much power, over your's, thank you.
However, I do not want this to become an American view of a Constitution vs. the Canadian view of a Constitution thread. Can we start a new thread to continue this discussion?
However, we are under a Common Law legal system. Legal precedent is binding on all lower courts. This creates a system of case law that must be followed as though it were written by the legislature. The only way to overrule case law, is to amend the constitution.
As the Supreme Court has never felt rigidly obliged to follow stare decisis, you can probably add that in there as the second option besides amending the Constitution.
As the Supreme Court has never felt rigidly obliged to follow stare decisis, you can probably add that in there as the second option besides amending the Constitution.
And THAT is one of our greatest problems. No matter how wisely thought out or carefully constructed, it is impossible to create a system immune to corruption, which the failure to observe stare decisis has assisted greatly.
The Supreme Court is probably the singularly greatest flaw in an otherwise brilliantly conceived governmental construct outlined in the constitution. It was given too much power to wield, as well as too much latitude in it's discretion not to act. It's a very dicey situation and a double edged sword.
In order to ensure consistency with supreme law as set forth in the Constitution, and maintain the restraints on federal powers as was intended, one cannot allow Constitutional provisions to be rendered null by legislative acts of Congress which would render the Constitution useless. Consequently, the power of "Judicial Review" is a necessity. Yet, granting the power to SCOTUS to dismiss statutory acts of Congress as unconstitutional, while also allowing them to ignore cases they choose not to hear, does precisely what the constitution intended to preclude in the first place .... to prevent too much power from being held concentrated in the hands of a few. It's a real dichotomy.
As it stands now, the SCOTUS can turn a blind eye to all forms of constitutional misbehavior by simply refusing to hear challenges, while at the same time, reverse well established constitutional interpretations as they might see fit to do from a purely political basis, rather than strict interpretations guided by the framers intent, as confirmed in previous court rulings.
And this is exactly what we've seen take place throughout the 20th century, as political forces have stacked the court with those willing to remove, piece by piece, the restraints upon federal powers to the point where none now effectively exists.
We only have the illusion of constitutional government now. And that illusion is becoming more transparent each day.
Why do you even have a Constitution if your government can use a loop-hole to violate it? I'll take our system of checks and balances, where no one branch can have too much power, over your's, thank you.
However, I do not want this to become an American view of a Constitution vs. the Canadian view of a Constitution thread. Can we start a new thread to continue this discussion?
The justices of the SCOTUS are appointed BASED on their partisan position. It surely is no secret at all. If you have ever watched and listened to a conformation you would know this to be the absolute truth.
The citizens united case is a very good example of this. Using the freedom of speech clause of the constitution to give special interests the power to BUY the government. A huge step backwards in the cause of freedom for the PEOPLE.
The Dred scott decision??????? Need I say more.
The notwithstanding clause gives the people the ability to remedy bad, bad, bad judicial decisions. It's not like this ability would ever be used on a whim or for any partisan positions at all. The government that uses it would be under a microscope regarding this usage and if things did not work out then they would be history and their measure also. IT'S NOT EVEN AN ABSOLUTE REMEDY IN THAT IT MUST BROUGHT BEFORE PARLIAMENT AFTER 5 YEARS.
Because there is no such remedy in the USA it makes a mockery of justice when the supreme court approves measures that are clearly unconstitutional because of a partisan position or a real need.
The patriot act is a good example of this. Your POLITICAL supreme court has decided it's completely constitutional to invade anyones privacy at any time without warrant or grounds. Legislation that is now before congress would in fact make the USA into a police state where you could just disappear and never be heard from again. It has already become the case in the country hat any number of agents of the state can demand "Your papers" at any time, anywhere for any reason.
If any agent of the state here in Canada asks for my papers I will tell them to take a hike and if they force the issue and prevail I will sue them and I will win.
Freedom is under major attack in the USA and because this attack is coming from both sides of the political devide the Supreme couurt is the only instrument that can save freedom. They have proven to me that they are unequal and unwilling for that task.
And THAT is one of our greatest problems. No matter how wisely thought out or carefully constructed, it is impossible to create a system immune to corruption, which the failure to observe stare decisis has assisted greatly.
The Supreme Court is probably the singularly greatest flaw in an otherwise brilliantly conceived governmental construct outlined in the constitution. It was given too much power to wield, as well as too much latitude in it's discretion not to act. It's a very dicey situation and a double edged sword.
In order to ensure consistency with supreme law as set forth in the Constitution, and maintain the restraints on federal powers as was intended, one cannot allow Constitutional provisions to be rendered null by legislative acts of Congress which would render the Constitution useless. Consequently, the power of "Judicial Review" is a necessity. Yet, granting the power to SCOTUS to dismiss statutory acts of Congress as unconstitutional, while also allowing them to ignore cases they choose not to hear, does precisely what the constitution intended to preclude in the first place .... to prevent too much power from being held concentrated in the hands of a few. It's a real dichotomy.
As it stands now, the SCOTUS can turn a blind eye to all forms of constitutional misbehavior by simply refusing to hear challenges, while at the same time, reverse well established constitutional interpretations as they might see fit to do from a purely political basis, rather than strict interpretations guided by the framers intent, as confirmed in previous court rulings.
And this is exactly what we've seen take place throughout the 20th century, as political forces have stacked the court with those willing to remove, piece by piece, the restraints upon federal powers to the point where none now effectively exists.
We only have the illusion of constitutional government now. And that illusion is becoming more transparent each day.
This is the best post I have read in a very long time!!!
Originally Posted by GuyNTexas And THAT is one of our greatest problems. No matter how wisely thought out or carefully constructed, it is impossible to create a system immune to corruption, which the failure to observe stare decisis has assisted greatly.
The Supreme Court is probably the singularly greatest flaw in an otherwise brilliantly conceived governmental construct outlined in the constitution. It was given too much power to wield, as well as too much latitude in it's discretion not to act. It's a very dicey situation and a double edged sword.
In order to ensure consistency with supreme law as set forth in the Constitution, and maintain the restraints on federal powers as was intended, one cannot allow Constitutional provisions to be rendered null by legislative acts of Congress which would render the Constitution useless. Consequently, the power of "Judicial Review" is a necessity. Yet, granting the power to SCOTUS to dismiss statutory acts of Congress as unconstitutional, while also allowing them to ignore cases they choose not to hear, does precisely what the constitution intended to preclude in the first place .... to prevent too much power from being held concentrated in the hands of a few. It's a real dichotomy.
As it stands now, the SCOTUS can turn a blind eye to all forms of constitutional misbehavior by simply refusing to hear challenges, while at the same time, reverse well established constitutional interpretations as they might see fit to do from a purely political basis, rather than strict interpretations guided by the framers intent, as confirmed in previous court rulings.
And this is exactly what we've seen take place throughout the 20th century, as political forces have stacked the court with those willing to remove, piece by piece, the restraints upon federal powers to the point where none now effectively exists.
We only have the illusion of constitutional government now. And that illusion is becoming more transparent each day.
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This is the best post I have read in a very long time!!!
True. SCOTUS should be required to hear every case appealed to it. That is a big flaw that needs to be fixed. But I don't hear any Occupier pointing that out.
Also, any time a SCOTUS justice makes a decision one does not agree with they claim it is "legislating from the bench," and call them "activist judges," and accuse SCOTUS of being "political." Both Republicans and Democrats do this. Couldn't it be that the justices have simply interpreted the Constitution differently from you and that's all? I never accepted the claims above about SCOTUS, to me they are just whining from poor losers...and I'm a registered Republican!!
And we must remember that we have a system of checks and balances even as it concerns the appointment of SCOTUS judges. The President appoints them but the Senate confirms them, or rejects them. There is an extensive interogating and investigative process SCOTUS candidates go through by Congress. This is why when you elect a President or Senator you must take this into account, you must take into account their views on the Constitution and issues that might come before SCOTUS. When the WH is one party (like Democrat, lets say) and the Senate is another (like Republican) this process becomes even more balanced, extensive, and complex. Again: one branch of government checking on another. So if SCOTUS makes a ruling you as a voter disagree with, you only have yourself or people who voted differently from you, to blame.
And what is the Occupiers answer or solution? Create a clause like that in Canada? One poster (I won't say his/her name because we're not suppose to make this personal) wrote that we should disband SCOTUS until we find a way to "fix" it. If SCOTUS was disbanded temporarily, what do we do in the meantime? And how do we "fix" it?
Here is my solution(s):
1.) Supreme Court justice position should not be a life-time gig. There should be term limits on justices. This would ensure more power and review by the electorte via their representatives in goverment who appoints the justices or by the electorate directly if #2 below is implemented.
2.) Supreme Court justice should not be an appointed position, but an elected one. Wouldn't that make it more political and partisan, you ask? Well, in many states and communites judges are elected. A wise electorate would research the previous decisions by a SCOTUS candidate, their opinion on legal issues and decisions, their character and qualifications. I for one want to elect a Justice who not only knows Constitutional law, but also history, particularly history as it concerns our Founding Fathers and their personal interpretation and intent behind the Constitution.
3.) SCOTUS should be required to hear every appeal and case brought before it.
But I wouldn't want SCOTUS disbanded while I was trying to make my changes. While SCOTUS makes some decisions I disagree with, it is still better than the alternative: mob rule by the majority...who don't always have the rights and the good of a minority in mind.
True. SCOTUS should be required to hear every case appealed to it. That is a big flaw that needs to be fixed. But I don't hear any Occupier pointing that out.
How on earth would they be able to do that? They get roughly 8000 requests for Cert every year. They only hear 80 of that. You think the SCOTUS has the time or resources to multiply their case load by 100?
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1.) Supreme Court justice position should not be a life-time gig. There should be term limits on justices. This would ensure more power and review by the electorte via their representatives in goverment who appoints the justices or by the electorate directly if #2 below is implemented.
2.) Supreme Court justice should not be an appointed position, but an elected one. Wouldn't that make it more political and partisan, you ask? Well, in many states and communites judges are elected.
Federal judges serve life terms and are appointed as means to try to discourage political pressure. They don't have to worry about running for re-election and they aren't owned by the President/Congress that appointed and confirmed them. We've already seen what political pressure does to corrupt Congressmen and President's. Last thing we need is that kind of corruption deciding our Constitutional Rights.
And while yes, there is certainly bias on the bench, it's far less than found in the other branches.
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A wise electorate would research the previous decisions by a SCOTUS candidate, their opinion on legal issues and decisions, their character and qualifications.
We don't have a wise electorate. Americans can't even name the people on the Supreme Court, let alone research their legal opinions.
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I for one want to elect a Justice who not only knows Constitutional law, but also history, particularly history as it concerns our Founding Fathers and their personal interpretation and intent behind the Constitution.
Every single one of them does. Unlike Congress and the President, the SCOTUS is not a popularity contest. With a few exceptions, no one gets on the Supreme Court without graduating top of their class from Yale or Harvard Law School (the 2 best law schools in the planet), doing high end government clerkships/internships, and serving for an extensive period of time in a high profile legal position (Us Attorney, Solicitor General, Federal appellate judge, etc.).
It's freakin hard to meet the qualifications to be on the Supreme Court.
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3.) SCOTUS should be required to hear every appeal and case brought before it.
As I said, physically impossible. They get requests to hear 8000+ cases a year. They do not have the manpower or time to hear that many cases, which is why they are so selective.
How on earth would they be able to do that? They get roughly 8000 requests for Cert every year. They only hear 80 of that. You think the SCOTUS has the time or resources to multiply their case load by 100?
Federal judges serve life terms and are appointed as means to try to discourage political pressure. They don't have to worry about running for re-election and they aren't owned by the President/Congress that appointed and confirmed them. We've already seen what political pressure does to corrupt Congressmen and President's. Last thing we need is that kind of corruption deciding our Constitutional Rights.
And while yes, there is certainly bias on the bench, it's far less than found in the other branches.
We don't have a wise electorate. Americans can't even name the people on the Supreme Court, let alone research their legal opinions.
Every single one of them does. Unlike Congress and the President, the SCOTUS is not a popularity contest. With a few exceptions, no one gets on the Supreme Court without graduating top of their class from Yale or Harvard Law School (the 2 best law schools in the planet), doing high end government clerkships/internships, and serving for an extensive period of time in a high profile legal position (Us Attorney, Solicitor General, Federal appellate judge, etc.).
It's freakin hard to meet the qualifications to be on the Supreme Court.
As I said, physically impossible. They get requests to hear 8000+ cases a year. They do not have the manpower or time to hear that many cases, which is why they are so selective.
Ok. So you disagree with my solutions and give good arguments for your position. Now that we have established that, can you comment on my op? Do you agree with the Occupiers? Should we temporarily disband SCOTUS until we "fix" it (which I have no idea how or why we do that.)? Please read the op and comment. I am truely interested in your insight on it.
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