The US Constitution - It doesn't help

[Ziggurat]

That's my point. It was written in 1787 (or ratified then, or whatever). The world has changed a lot since then. 27 amendments in nearly 250 years? Isn't it struggling to keep pace with modern life yet?

No, it's not struggling to keep pace with modern life. It's doing just fine.

One of the great strengths of the US constitution is its relative brevity. It's a very basic document. It doesn't specify very much at all about how government operates, it only outlines the basic structures and powers. Within those basic structures, one can do a lot of different things. The system is flexible. Furthermore, if the constitution itself needs changing, then it can be changed.

But if you do not adhere to the constitution, then you are not following the law. And when you discard the rule of law, you pave the way for tyranny. It really is that simple. If you need to do something that is unconstitutional, the proper remedy is not to ignore the constitution, but to amend it. That is following the rule of law, which is the only safe basis on which any government can operate.

 

[JoeTheJuggler]

Does not the legislation define that which is legal?

No. Powers are separated among the 3 branches. The legislation writes laws, the judiciary interprets them [ETA: included in that authority is the authority to determine whether or not a law is constitutional or legal], and the executive executes (or enforces) them.

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.

I don't know the details, but I guarantee you the UK does not have a legislative branch with unlimited authority to pass ANY law it wants.

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.

Would it help if some other term were used? What's in a name? The question of whether or not a law passes judicial review would smell as sweet by any other name.

The U.K. does have a judiciary with power vested in it by a constitution. I don't know what language is used there when the Supreme Court of the UK reviews legislation, but the general principle is the same.

 

[truethat]

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.

I think you are right about this. Especially when you hear politicians using the founding fathers to shoe horn a dead guys support into some new law.

I'm pretty sure the founding fathers wouldn't even recognize this country any more. Their blueprint was wonderful but it's evolved beyond their scope.

 

[3point14]

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.

I didn't mean it quite like that!

 

[JoeTheJuggler]

No, it's not struggling to keep pace with modern life. It's doing just fine.

One of the great strengths of the US constitution is its relative brevity. It's a very basic document. It doesn't specify very much at all about how government operates, it only outlines the basic structures and powers. Within those basic structures, one can do a lot of different things. The system is flexible. Furthermore, if the constitution itself needs changing, then it can be changed.

But if you do not adhere to the constitution, then you are not following the law. And when you discard the rule of law, you pave the way for tyranny. It really is that simple. If you need to do something that is unconstitutional, the proper remedy is not to ignore the constitution, but to amend it. That is following the rule of law, which is the only safe basis on which any government can operate.

Amen! Especially the bit I bolded, but all the rest is very well said too.

 

[dudalb]

Every country has a cult of personality about it's historical figures. I don't think the US is worse then most.
Any politician in the US will find a Founding father to support his view. Both left and right love to cite Thomas Jefferson in particular.

 

[mumblethrax]

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".

I think you're not following me.

If the Constitution were merely a set of rules, I'd have few problems with it. But the Constitution is at the center of a political culture that treats it as a holy relic, which is what I think 3point14 is perceiving and reacting to.

For example, we had a thread here not too long ago about the Senate, which I regard as an unjustifiably undemocratic institution. Every defense of the Senate made in that thread was of the form "It's in the Constitution", which is both obvious and irrelevant in a criticism of the Constitution (which any criticism of the Senate, as an institution, obviously must be).

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.

Because I can't think why else you'd mention it.

It's also obviously not true that lacking the Constitution would result in a Congress of unlimited power (particularly given that the Congress exists because of the Constitution). We could just as easily have a different constitution. A critique of this particular implementation of a constitutional democracy does not amount to a critique of constitutional democracy in general.

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.

I'm not saying that we should allow unconstitutional laws to stand. I think it's absolutely appropriate to defer to the Constitution in legal matters.

Where I think it's not appropriate to do so is in political matters. The ability to amend, for example, is meaningless if "That would be unconstitutional" is enough to kill a good idea before it gets off the ground.

And this is what frustrates me. The Constitution is full of stupidities that people refuse to even acknowledge.

 

[3point14]

No, it's not struggling to keep pace with modern life. It's doing just fine.

I'm beginning to realise this. This bit helped a lot:

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.

One of the great strengths of the US constitution is its relative brevity. It's a very basic document. It doesn't specify very much at all about how government operates, it only outlines the basic structures and powers. Within those basic structures, one can do a lot of different things. The system is flexible. Furthermore, if the constitution itself needs changing, then it can be changed.

But if you do not adhere to the constitution, then you are not following the law. And when you discard the rule of law, you pave the way for tyranny. It really is that simple. If you need to do something that is unconstitutional, the proper remedy is not to ignore the constitution, but to amend it. That is following the rule of law, which is the only safe basis on which any government can operate.

Accepted. I'm still wondering why it generates an almost religious fervour in some.

 

[JoeTheJuggler]

Every country has a cult of personality about it's historical figures. I don't think the US is worse then most.
Any politician in the US will find a Founding father to support his view. Both left and right love to cite Thomas Jefferson in particular.

And I think this question of "veneration" is being conflated with the asking whether or not a law is constitutional.

As several of us have pointed out, the question of constitutionality is a matter of following the rules of our structure of government. It has nothing to do, really, with venerating any persons or personalities--no more than following the rules of a baseball game requires "veneration" of Abner Doubleday!

 

[brodski]

I don't know the details, but I guarantee you the UK does not have a legislative branch with unlimited authority to pass ANY law it wants.

As far as any definite statement can be made about the UK constitution, you're wrong.

http://en.wikipedia.org/wiki/Parliamentary_sovereignty

Or perhaps you're not. The UK has signed up to the ECHR and is a member of the EU. If we don't play by their rules with regards to some things there are penalties.
Of course parliament (the legislature) could, by simple act, remove the nation from membership of such bodies.

It is possible to challenge the UK government in court however even if the government loses they could, in theory, just amend the law under which they lost.

Pretty much the only thing which a Sovereign Parliament can't do is permanently constrain the sovereign power of any future parliament...

 

[Giz]

And this is what frustrates me. The Constitution is full of stupidities that people refuse to even acknowledge.

If people agreed with you (that those provisions were stupid) then the constitution would be amended. Perhaps your fellow citizens simply don't agree?

What manifest stupidities did you have in mind?

 

[brodski]

Every country has a cult of personality about it's historical figures. I don't think the US is worse then most.
Any politician in the US will find a Founding father to support his view. Both left and right love to cite Thomas Jefferson in particular.

So far as I have observed it does happen much more in the US than in any other nation who's politics I follow. It certainly happens much more than in the UK, I can't even think of a single politician who's political position (as opposed to a witty saying they may have coined or had attributed to them) would be used in support a modern policy, maybe Churchill and maybe Nye Bevan. Certainly no-oen from the 18th (or even 19th) century.

 

[JoeTheJuggler]

If the Constitution were merely a set of rules, I'd have few problems with it. But the Constitution is at the center of a political culture that treats it as a holy relic, which is what I think 3point14 is perceiving and reacting to.

If so, then 3point14 is asking the wrong question.

For example, we had a thread here not too long ago about the Senate, which I regard as an unjustifiably undemocratic institution. Every defense of the Senate made in that thread was of the form "It's in the Constitution", which is both obvious and irrelevant in a criticism of the Constitution (which any criticism of the Senate, as an institution, obviously must be).

Really? Every defense was simply that that's what the Constitution says period? I would have made reference to the model used in establishing the bicameral legislature (the House of Lords and the House of Commons--one less responsive to the polls and one more responsive, though both in the U.S. system definitely democratic), modified to grant a bit more authority to the entities we have called states rather than making them all directly proportional to population.

It's the same old thing--when someone pointed out that Gore got more popular votes than Bush, Bush could always answer that he won more states than Gore did. There's an intentional tension in our federalist system between states rights and the authority of the central government. You could as easily argue that this system is more or less democratic depending on how you want to look at it.

Where I think it's not appropriate to do so is in political matters. The ability to amend, for example, is meaningless if "That would be unconstitutional" is enough to kill a good idea before it gets off the ground.

But that's not what the OP was about, right?

3point14 specifically asked:

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 is full of stupidities that people refuse to even acknowledge.

Such as?

 

[3point14]

So far as I have observed it does happen much more in the US than in any other nation who's politics I follow. It certainly happens much more than in the UK, I can't even think of a single politician who's political position (as opposed to a witty saying they may have coined or had attributed to them) would be used in support a modern policy, maybe Churchill and maybe Nye Bevan. Certainly no-oen from the 18th (or even 19th) century.

Ah, your problem there is a laughably small sample size...

 

[brodski]

Ah, your problem there is a laughably small sample size...

Are you claiming that our MPs don't have political positions? That's nonsense. Most have at least six contradictory ones before breakfast.

 

[mumblethrax]

If people agreed with you (that those provisions were stupid) then the constitution would be amended.

I think "three quarters of the state legislatures" is an odd definition of "people".

What manifest stupidities did you have in mind?

The difficulty of amendment would be foremost, which is instrumental in retaining many of the other stupidities. After that, the electoral college (which was stupid enough to already have been amended twice), the Senate, the entrenchment of the Senate, and the requirement that presidential candidates be natural born citizens leap to mind.

 

[A Laughing Baby]

I didn't mean it quite like that!

I know. And your point is an interesting, if philosophical one. Looking back at my posts, I set up a (very tiny) strawman there, and I apologize.

 

[JoeTheJuggler]

As far as any definite statement can be made about the UK constitution, you're wrong.

Given the role of British Common Law in the UK judiciary, even though the courts only rule on the application of the law to individuals (as opposed to striking down the law per se), the effect is the same.

IMO, this is a clunkier and more antiquated system than straight up judicial review of legislation. Perhaps that's why the UK is adopting the more modern system at least wrt the European Union.

 

[3point14]

I know. And your point is an interesting, if philosophical one. Looking back at my posts, I set up a (very tiny) strawman there, and I apologize.

 

[brodski]

Given the role of British Common Law in the UK judiciary, even though the courts only rule on the application of the law to individuals (as opposed to striking down the law per se), the effect is the same.

No it isn't. A common law principle can be well established and yet a simple act of parliament can override it. Even if the government loses it is very easy for them to make sure that they won't again.

IMO, this is a clunkier and more antiquated system than straight up judicial review of legislation. Perhaps that's why the UK is adopting the more modern system at least wrt the European Union.

Again, we only follow EU (and ECHR) rules at the sufferance of a Sovereign parliament.