The US Constitution - It doesn't help

[mumblethrax]

It's an infuriating and worrying aspect of life in America. People don't even realize the degree to which they've venerated a bunch of dead lawyers.

 

[JoeTheJuggler]

What if it's a good policy, but technically illegal?

No, I can't think of one either, right now, it's very hypothetical.

It has happened. In that case, the legislature is free to re-do the law taking into account the constitutional objections the judiciary raised. (In fact, they try very hard to anticipate them.) It's not unheard of for the courts to give fairly explicit instructions in how an unconstitutional law could be re-made to be constitutional.

 

[drkitten]

Right,

This one could be tricky, but I'm having trouble when reading quite a few threads on the US politics forum.

Discussions around gun control, healthcare and a myriad other topics all seem to end up focussing on whether something is constitutional or not.

My question is this:

Why does it matter?

Because if it's not constitutional, then it doesn't matter if it's a good idea or not -- we can't do it. And that settles the matter pretty definitively.

So whoever thinks the idea is a bad idea usually argues in court that it's not constitutional, in the hopes that the courts will agree with them.

 

[brodski]

Frankly I don't know why you lot bother so much about the constitution, so long as you don't spell your name in ALL CAPS and make sure to always refer to yourself in the form [first name] of the family [last name], and stay away from courts that have gold fringes on the flag, none of it applies to you anyway.

There are a couple of threads here which clearly set out all the relevant evidence.

 

[Meadmaker]

Right,

This one could be tricky, but I'm having trouble when reading quite a few threads on the US politics forum.

Discussions around gun control, healthcare and a myriad other topics all seem to end up focussing on whether something is constitutional or not.

My question is this:

Why does it matter?

Really? Shouldn't the question be whether it's a good idea for the country, productive, fair, useful and the like? Why does it matter if it's constitutional or not? Is the constitution in danger of becoming an outmoded and out of date piece of literature hanging round the neck of the US preventing the enactment of legislation that would be a good idea?

I understand that it's subject to amendment, but that hasn't really happened a lot (once in my lifetime I think) and involves (I believe) the moving of metaphorical mountains.

Why are you guys in the US so hung up on 'Is it constitutional?' when 'Is it a good idea?' seems like a much better question to ask?

The constitution functions as sort of "superlegislation". If something goes against the Constitution, the Constitution can be changed, but not as easily as changing ordinary legislation.

The point of the constitution is primarily to avoid what is frequently called "the tyranny of the majority". On any given day, you could probably convince legislators that represent 51% of the American people to restrict freedom of speech, but that's not good enough to actually do it. If you wanted to restrict freedom of speech, you would have to convince representatives that represented 2/3 of the people, and then 3/4 of the state legislators. It's much more difficult.

So, the reason we get hung up on the question, "Is it constitutional?" is that in practical terms it cannot become law unless the answer is yes. It doesn't matter how good the idea is, if it is against the supreme law of the land, changing that law of the land is very difficult. (Trivia points: The last change to the Constitution was in the early 1990s, when an ammendment was passed that said that if Congress voted itself a pay raise, it couldn't take effect until after the election. Before that, in the early 1970s an ammendment was passed that lowered the voting age to 18.)

For the most part, we like it that way. It is a hindrance to getting certain things done, but it is designed to be a hindrance.

One problem that many of us have is that so much of "the Constitution" is defined in case law instead of the actual text of the document. The courts, and only the courts, have power to interpret the constitution, but their interpretation can go into minute detail on every aspect of every branch of government. The consequence is that if a public school teacher says something about religion, it might take a Supreme Court ruling to determine whether or not that teacher's comment was legal. That's a pretty uniquely American phenomenon, and it comes from the fact that only in America is the Constitution held to be so powerful, but the power to interpret it is held to rest in the hands of nine individuals. Also as a side effect of that, the Supreme Court gets to be kind of like the "replay judge". (I don't know if that's a metaphor unique to American Football, or not.) After the Congress agrees to a policy, and the President signs it, there's still a chance that it just won't happen, because if the nine members of the Supreme Court find some sort of legal reason for rejecting it, the law will be overturned, and there's no way to overturn a Supreme Court ruling short of a constitutional ammendment, which is very difficult. I think in every other country, the legislature has at least some chance to throw out a court ruling, but in America, there is no such chance.

 

[3point14]

Because if it's not constitutional, then it doesn't matter if it's a good idea or not -- we can't do it. And that settles the matter pretty definitively.
<Snipped>

This is the bit about it that seems like a bad idea to me.

 

[JoeTheJuggler]

It's an infuriating and worrying aspect of life in America. People don't even realize the degree to which they've venerated a bunch of dead lawyers.

What a silly thing to say.

Somehow we're venerating dead lawyers because we adhere to the rules of governance we have established? It seem to me the alternative to following rules of governance (including checks and balances among the 3 branches) would be to have an autocracy or simply anarchy.

If Congress really had unlimited power, for example, there would be no need for a judiciary, and U.S. government would be unrecognizable.

 

[JoeTheJuggler]

This is the bit about it that seems like a bad idea to me.

It's not a bad idea. It's the same point I have said. You really don't get to consider the pros and cons of a piece of legislation until you first decide whether or not it's legal.

What country are you from? I'm sure there is something homologous to "constitutionality". For example, I'm sure the legislature of your country doesn't have the authority to declare a member of their majority party to be the dictator for life.

The Constitution is simply what constitutes our government. It establishes the rules--the checks and balances and so on.

 

[3point14]

The constitution functions as sort of "superlegislation". If something goes against the Constitution, the Constitution can be changed, but not as easily as changing ordinary legislation.

The point of the constitution is primarily to avoid what is frequently called "the tyranny of the majority". On any given day, you could probably convince legislators that represent 51% of the American people to restrict freedom of speech, but that's not good enough to actually do it. If you wanted to restrict freedom of speech, you would have to convince representatives that represented 2/3 of the people, and then 3/4 of the state legislators. It's much more difficult.

So, the reason we get hung up on the question, "Is it constitutional?" is that in practical terms it cannot become law unless the answer is yes. It doesn't matter how good the idea is, if it is against the supreme law of the land, changing that law of the land is very difficult. (Trivia points: The last change to the Constitution was in the early 1990s, when an ammendment was passed that said that if Congress voted itself a pay raise, it couldn't take effect until after the election. Before that, in the early 1970s an ammendment was passed that lowered the voting age to 18.)

For the most part, we like it that way. It is a hindrance to getting certain things done, but it is designed to be a hindrance.

One problem that many of us have is that so much of "the Constitution" is defined in case law instead of the actual text of the document. The courts, and only the courts, have power to interpret the constitution, but their interpretation can go into minute detail on every aspect of every branch of government. The consequence is that if a public school teacher says something about religion, it might take a Supreme Court ruling to determine whether or not that teacher's comment was legal. That's a pretty uniquely American phenomenon, and it comes from the fact that only in America is the Constitution held to be so powerful, but the power to interpret it is held to rest in the hands of nine individuals. Also as a side effect of that, the Supreme Court gets to be kind of like the "replay judge". (I don't know if that's a metaphor unique to American Football, or not.) After the Congress agrees to a policy, and the President signs it, there's still a chance that it just won't happen, because if the nine members of the Supreme Court find some sort of legal reason for rejecting it, the law will be overturned, and there's no way to overturn a Supreme Court ruling short of a constitutional ammendment, which is very difficult. I think in every other country, the legislature has at least some chance to throw out a court ruling, but in America, there is no such chance.

Thank you. This was the sort of answer I was looking for. Much appreciated.

 

[dudalb]

It's an infuriating and worrying aspect of life in America. People don't even realize the degree to which they've venerated a bunch of dead lawyers.

I have noted that people who say stuff like this have little knowledge of American History or the way the Government works......

 

[mumblethrax]

Somehow we're venerating dead lawyers because we adhere to the rules of governance we have established? It seem to me the alternative to following rules of governance (including checks and balances among the 3 branches) would be to have an autocracy or simply anarchy.

No, we're venerating dead lawyers because the rules of governance are significantly determinative of whether we think is a good idea.

If Congress really had unlimited power, for example, there would be no need for a judiciary, and U.S. government would be unrecognizable.

You'll have to explain to me how my frustration with American veneration of the Constitution implies that I favor a Congress with unlimited power.

The Constitution is simply what constitutes our government. It establishes the rules--the checks and balances and so on.

Which should not be relevant to fundamental political discourse. Yet it is in the US, which I take as evidence that the constitution impairs our political process.

 

[dudalb]

So you can't have the checks and balances without the constitution?

It really does seem like an awfully big red herring. Healthcare is a big issue, and if it could be proved beyond doubt that providing healthcare free (at the point of delivery) for all was beneficial to everyone, and it could be proved that it was totally unconstitutional, wouldn't that leave somewhat of a quandary?

No, there simply be a amendment to the constitutiion making Healthcare constitutional.

 

[brodski]

This is the bit about it that seems like a bad idea to me.

But only if you like the proposed policy. If you don't then it's a good thing.
If there was a policy which every single US citizen of voting age thought was a great idea then it would be very easy to amend the constitution to permit it.
In reality no such policy will exist, so what the US constitution does is prevent some policies which some citizens are in favour of and some are opposed to.

The constitution pretty effectively limits the power of US governments, the alternative would be every few years handing over much much more power to the government for them to do what they liked, good or ill, with much less power for the public to challenge their policies.

This does not mean that the US government system does not change. There may have only been 27 amendments but I would argue that the most fundamental change in the US constitution did not come about by amendment but by successive US supreme court decisions about what the constitution actually means, in particular in relation to the regulation of interstate commerce.

 

[A Laughing Baby]

Frankly I don't know why you lot bother so much about the constitution, so long as you don't spell your name in ALL CAPS and make sure to always refer to yourself in the form [first name] of the family [last name], and stay away from courts that have gold fringes on the flag, none of it applies to you anyway.

There are a couple of threads here which clearly set out all the relevant evidence.

You make a good point. You'd really think that we wouldn't have left those loopholes in there. Maybe it's time for a do-over.


ETA: I just simultaneously terrified and amused myself by thinking about what America would do if we decided to make a new Constitution. Good Lord, it would be a circus.

 

[3point14]

It's not a bad idea. It's the same point I have said. You really don't get to consider the pros and cons of a piece of legislation until you first decide whether or not it's legal.

What country are you from? I'm sure there is something homologous to "constitutionality". For example, I'm sure the legislature of your country doesn't have the authority to declare a member of their majority party to be the dictator for life.

The Constitution is simply what constitutes our government. It establishes the rules--the checks and balances and so on.

Does not the legislation define that which is legal?

Er, the UK, London - ish.

And yes, we have something similar, but my thought is that it's only people from he US who seem to have this argument, and I'm trying to explore why.

Of course, it could be that I only notice this discussion when it's about the US and the 'it is/is not constitutional' argument happens in many countries all the time and it's just that US politics is way more visible.

 

[truethat]

The constitution functions as sort of "superlegislation". If something goes against the Constitution, the Constitution can be changed, but not as easily as changing ordinary legislation.

The point of the constitution is primarily to avoid what is frequently called "the tyranny of the majority". On any given day, you could probably convince legislators that represent 51% of the American people to restrict freedom of speech, but that's not good enough to actually do it. If you wanted to restrict freedom of speech, you would have to convince representatives that represented 2/3 of the people, and then 3/4 of the state legislators. It's much more difficult.

So, the reason we get hung up on the question, "Is it constitutional?" is that in practical terms it cannot become law unless the answer is yes. It doesn't matter how good the idea is, if it is against the supreme law of the land, changing that law of the land is very difficult. (Trivia points: The last change to the Constitution was in the early 1990s, when an ammendment was passed that said that if Congress voted itself a pay raise, it couldn't take effect until after the election. Before that, in the early 1970s an ammendment was passed that lowered the voting age to 18.)

For the most part, we like it that way. It is a hindrance to getting certain things done, but it is designed to be a hindrance.
One problem that many of us have is that so much of "the Constitution" is defined in case law instead of the actual text of the document. The courts, and only the courts, have power to interpret the constitution, but their interpretation can go into minute detail on every aspect of every branch of government. The consequence is that if a public school teacher says something about religion, it might take a Supreme Court ruling to determine whether or not that teacher's comment was legal. That's a pretty uniquely American phenomenon, and it comes from the fact that only in America is the Constitution held to be so powerful, but the power to interpret it is held to rest in the hands of nine individuals. Also as a side effect of that, the Supreme Court gets to be kind of like the "replay judge". (I don't know if that's a metaphor unique to American Football, or not.) After the Congress agrees to a policy, and the President signs it, there's still a chance that it just won't happen, because if the nine members of the Supreme Court find some sort of legal reason for rejecting it, the law will be overturned, and there's no way to overturn a Supreme Court ruling short of a constitutional ammendment, which is very difficult. I think in every other country, the legislature has at least some chance to throw out a court ruling, but in America, there is no such chance.

The bolded is a very important point.


At the risk of sounding like a proud American, I like the term "Is it constitutional" Basically in putting the country together the founding fathers examined all the things that caused so many problems in Europe and sought to eliminate them. The experiences and knowledge of Europeans created our constitution and while it might seem dated now, you can't deny that it helped create a strong country in a relatively short amount of time. We've only been around 200 odd years and we're one of the strongest countries in the world. ( I know some will debate that but I'll try to stay on topic)

For example if we didn't have the right to bear arms we'd probably be a very different country right now. We have many examples as it is of those with guns and power dominating those who did not. Native Americans for example.

The term unconstitutional is a way of circumventing unfair legislation and has been useful in overturning unjust laws like Plessy versus Ferguson and right now Proposition 8.

When I think of the constitution I think of John Stuart Mill's caution against the tyranny of the majority. Although it has taken time to sort out the rights of people in this country, the constitution is what made it happen every time. The checks and balances are also very essential. The constitution and the use of checks and balances are brilliant.

In my opinion

 

[JoeTheJuggler]

No, we're venerating dead lawyers because the rules of governance are significantly determinative of whether we think is a good idea.

I think you're confused. Just because a law is found to be constitutional doesn't mean it's a good idea, and vice versa. (I'm sure I said this before.) Constitutionality is just a question of being legal--of following the rules. It is in no way "determinative of whether we think [a law] is a good idea".

[ETA: In our separation of powers, the role of the judicial branch is to interpret the laws (to this topic, decide which laws are constitutional or legal)--not decide which laws are good ideas or not. That is the role of the legislative branch.]

You'll have to explain to me how my frustration with American veneration of the Constitution implies that I favor a Congress with unlimited power.

The structure of our government is established in the Constitution: including the limits of power of the various branches.

I'm not sure why my example of what lacking the Constitution would be like makes you think that I think you favor such a thing.

This "veneration" isn't really a matter of degree. Either we follow the rules we've established, or we don't. You can't just sort of follow the rules--sometimes allow laws we know to be unconstitutional to stand.

 

[drkitten]

This is the bit about it that seems like a bad idea to me.

Not really. If the Constitution is getting in the way of a self-evidently Good Idea [tm] then the Constitution can be changed.

The problem is that health care or whatever the cause du jour is isn't a self-evidently good idea. A lot of people don't consider it a good idea at all.

 

[brodski]

I have noted that people who say stuff like this have little knowledge of American History or the way the Government works......

Really? I remember being told much the same thing (apart from the worrying bit) by my Professor of US politics in university, who was American, much in favour of the US system as compared to other systems and pretty damn knowledgeable a\bout both US history and US politics.
It also reflects the view held Alistair Cooke^WP who could not be considered ignorant of US history and politics nor could he be considered anti-American. Cooke referred to the veneration of the Founding Fathers as the "official, secular, religion" of the USA- and he seems to have got it pretty much right.
It's not about the weight given to the constitution (as the most important legislation in the country of course it should be given weight), it's about the veneration of the view and opinions of the men who wrote it, it;s about the use of the names of the Founding Fathers in political discourse today, its about the idea (promoted by some- not all that mainstream) that the constitution arrived pretty much perfect and that any deviation from the ideals presented in it is a move towards tyranny.

That last position is very much at the extreme end, but observing political discourse in the USA I certainly get the feeling that the underlying sentiments (and underlying romanticism) behind the view are very widespread.

 

[A Laughing Baby]

Really? I remember being told much the same thing (apart from the worrying bit) by my Professor of US politics in university, who was American, much in favour of the US system as compared to other systems and pretty damn knowledgeable a\bout both US history and US politics.
It also reflects the view held Alistair Cooke^WP who could not be considered ignorant of US history and politics nor could he be considered anti-American. Cooke referred to the veneration of the Founding Fathers as the "official, secular, religion" of the USA- and he seems to have got it pretty much right.
It's not about the weight given to the constitution (as the most important legislation in the country of course it should be given weight), it's about the veneration of the view and opinions of the men who wrote it, it;s about the use of the names of the Founding Fathers in political discourse today, its about the idea (promoted by some- not all that mainstream) that the constitution arrived pretty much perfect and that any deviation from the ideals presented in it is a move towards tyranny.

That last position is very much at the extreme end, but observing political discourse in the USA I certainly get the feeling that the underlying sentiments (and underlying romanticism) behind the view are very widespread.

I agree. I was taking issue with the "so why do we care about it" sentiment I got from the OP. There is something of a cult of personality (exaggeration, but only slight) surrounding the founding fathers in this country.