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PaperclipPerfector  3yr ago (text post)   40084 thread views

Culture War Roundup for the week of April 10, 2023

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judicial independence means that the liberal elite can not be replaced,

That's an odd argument, given that after Warren retired, Republican presidents nominated the next 10 justices.

But, again, you haven't really addressed the problem of giving the legislature and executive carte blanche to ignore the Bill of Rights, as well as other individual rights protected by the Constitution.

A balanced system, where two out of three of the branches of government can overrule the other, seems simplest.

I don't understand why simplicity is an important criterion.

I understand that people think that the rights in the Bill of Rights, as modified by rulings from the 50s to 2000s, are super important. Some people think this is because they like the direction of the rulings. ... A constitution is not much use if it does not limit the power of one branch

A Constitution is of even less use if it does not limit the power of the government. The system for which you are advocating, wherein the legislative and executive branches are not constrained by courts, is a system in which the legislative and executive branches are not constrained by the Constitution. Because that is the reality in countries without judicial review and independent judiciaries, and that was what the reality was before the Court began enforcing civil liberties in the mid-20th century. Do you know how many search warrants were issued in New York City before the exclusionary rule was applied to the states? None. Do you know how many "Reds" were imprisoned in the 20s and 30s in the United States? Or how many US citizens would have been held at Guantanamo without trial or even access to a lawyer were it up to the Bush Administration and Congress? Here is what Federalist 78 says:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Finally, it is irrelevant that "two of the branches are elected every 2 or 4 years, and you have some answerability to the electorate," because it is precisely the electorate that is the greatest threat to civil liberties of members of outgroups.

Whatever the evils are associated with the current system, including overturning laws outlawing sodomy, they pale in comparison to what would be visited by the system that you advocate.

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