Legislators change the law (including, rarely, the constitution) — effectively by applying a hierarchy of "countermanding orders" — to suit the changing interests of the public. Courts interpret the law, but only downstream of legislation. The executive can make regulation and executive orders, but only in agreement with the law.
But at the founding of any given country, something else usually happens: certain rights and laws that are already recognized intuitively become enshrined into the country's constitution. Things are written down into law not as a representation of a shift in public sentiment, but as a recognition of existing sentiment, and the desirability to formalize that sentiment as law to protect it from encroachment by legislation.
Usually, this is done in the form of "representative anarchy": the people who establish a country are the people everyone rallied behind to overthrow the previous country; and because of this, they have very good knowledge of what rights their constituents were demanding that the previous government wasn't giving them.
There's no trivial way to map this "representative anarchy" process of rights-information-gathering into an equivalent process that would occur within an established continuous government. But that doesn't mean it's impossible.
For example, there could be a government department charged with 1. doing a kind of embedded journalism to figure out what issues "the people" are beginning to care about, that the law's stance on has no clear basis, because those issues were irrelevant when the constitution was enshrined; and then 2. coming up with referrendum-like polls to gather data on said public sentiment; where if the polls indicate a need, then at that point 3. the data will lead to a mandate for a constitutional amendment enshrining the public's desires to be created and put into force, which stands until this has successfully occurred; where 4. it is then up to the legislature and the supreme court to work together to draft the amendment; but 5. the ability to ratify the amendment is not in the hands of the legislature or the courts, but instead, this department will assemble a federal grand jury with participants from all states, which has a veto over each draft, and a congressional-subpoena-like ability to summon and retain the services of arbitrary legal experts to interpret the draft. (In est, this is trying to get as close as possible to having the public write the amendment themselves, with the legislature+courts being forced to "do the hard work" but not having any power over the result.)
But exactly how such a system would work isn't really my point; my point is that there is currently no such system, and that this is perhaps a problem. In fact, it is perhaps the problem — the problem that leads to governments founded with public support increasingly failing to address the interests of the people over time; and so, to governments being overthrown and new countries being founded.
The public is clearly not bound to even attempt to be consistent in its opinions from case to case, and if it's all over the place in its verdicts and might well be accepting or rejecting a verdicts for different reasons from the justices (maybe they think the legal arguments about privacy in the original Roe vs Wade were weak but also think women should have an inherent right to abortion that legislators haven't provided them with), it'ś difficult to see how lower courts can be bound by it.
There's also a big question of who gets to vote, particularly for the cases where a state law is argued to be in violation of the federal constitution, which tends to be the more controversial ones...
In my opinion, if SCOTUS is split 5/4 (or even 6/3) on anything, that should be taken as prima facie evidence that the law is unclear and needs amending. At that point we should require all the deciding judges to make a write-up for each opinion in the case detailing the requisite changes to the law that would make all judges to rule unanimously in favor of that opinion. These can then be submitted to the legislature or a referendum or whatever, but either way some decision needs to be made.
You're completely missing the point of the supreme court. It's explicitly not a democratic institution; it's purpose is to protect the constitutional rights of the minority from the tyranny of the majority. The other two branches are democratic; isn't that enough for you?
Surely you see the point of the US being a republic; rule by law, not by men. In your vision of the supreme court, if the majority decided they wanted to lock up some minorty and send them to gas chambers, the court couldn't do anything to stop them because the populace would vote for it in a referendum. That kind of thing has happened countless times in history in countries that didn't have a strong court system capable of protecting people's rights from the tyrrany of the majority.
I don't agree with the commenter you responded to, but I think this sort of view is similarly flawed. Many developed Western democracies endow the courts with much weaker powers of judicial review than the US. In the UK, for example, judicial review applies only to Orders of Council, while Acts of Parliament are exempt.
> Surely you see the point of the US being a republic; rule by law, not by men.
Men wrote the laws.
> In your vision of the supreme court, if the majority decided they wanted to lock up some minorty and send them to gas chambers, the court couldn't do anything to stop them because the populace would vote for it in a referendum. That kind of thing has happened countless times in history in countries that didn't have a strong court system capable of protecting people's rights from the tyrrany of the majority.
I agree the Supreme Court has effectively protected minority rights: the minority of wealthy property owners. I'm somewhat confident that the historical list of Supreme Court injustices that served to oppress vulnerable minorities (e.g. Dred Scott and Japanese internment) is longer than the list of times the Supreme Court has lifted those same minorities up.
The corporate media doesn’t typically like to talk about that process since it is a threat to the entrenched powers that be.
The ombudsman of the American people is their state legislatures.
We have sovereign states in the US. Let’s not add any more power to the federal apparatus to solve a perceived problem with itself
Yes, you'll note that I said "the data will lead to a mandate for a constitutional amendment." My point is that the mechanism around constitutional amendments is broken for this purpose; not that we need a thing other than constitutional amendments.
Given the actual design of a bipartite or tripartite government, constitutional amendments in practice only happen when there's a need to use an amendment to overridingly countermand law.
Constitutional amendments are almost never used for their original intended purpose — to pre-empt law — because the legislative process is purely reactive, never proactive. Legislatures the world over only act when either corporate lobbying interests or outraged citizens demand they act.
The thing I'm saying doesn't exist, is a proactive branch of government that turns things that are currently "known to be desirable" but not yet "outraged about being taken away", into constitutional amendments protecting those things, before some law can be made somewhere that violates the implicit, intuitional, self-evident, but previously non-applicable right that the public believes it has. Like a right to anonymity in cash transactions.
Until a decade or two ago, nobody ever considered that "being able to transact anonymously via cash" needed to be thought of as a right. It was simply the only way things worked.
Or, consider prohibition. Did the US really need to issue the 18th amendment, struggle for two decades, and then issue the 21st amendment to repeal it... when anyone who lived in America at any time during the two centuries before the rise of the temperance movement, could have seen that the public actually seems to consider itself to have a self-evident right to ingest mind-altering substances — and thereby, that there should be a constitutional limitation on laws which prohibit the production and sale of mind-altering substances? Yet America still doesn't have a constitutional amendment enshrining that self-evident right. Because there's no system for discovering "latent" public sentiment and enshrining it.
To your other points:
> The ombudsman of the American people is their state legislatures.
Legislatures at all levels are purely reactive; and therefore can't react to latent public sentiment, only to active demands.
> We have sovereign states in the US. Let’s not add any more power to the federal apparatus to solve a perceived problem with itself
What about every other democratic nation in the world that doesn't have this problem? (I'm Canadian, myself.) While America makes a good example for the failings of the reactive model for constitutional amendment, adding a proactive pipeline from latent public sentiment to constitutional amendment would be a change applicable to every country with a constitution. Not just democracies, actually; even constitutional monarchies.
I read your whole comment tree. I used to think something like this would be nice. An incarnation of some kind of wise intelligent force that could cut through the morass of mainstream politics in an efficient and principled way.
What I have realized is that mainstream politics is exactly this. The premise of your argument is wrong. There is no more proactive or efficient mechanism for accomplish collective action than our current political process. It is ruthlessly fast and efficient when you consider how accurately it reflects general sentiment in the country. We all, moreso the more intelligent we are, operate in a bubble of assumptions about what other people believe. Whatever you see on the news is a mindbogglyly low error match tailored to what the target audience believes. And all target audiences are covered in proportion to their size. We often hear that the extremes control the narrative, and you do hear from them a lot, but the overall picture painted by popular media and politics is the most accurate reflection of what people believe or will believe.
There's nothing we could construct that would outperform it.
I think we could tweak it to lower the error rate with some different voting schemes or rules, but at the end of the day there isn't some other paradigm that will beat it.
And a system that requires a 3/4 supermajority of not even the population but the state legislatures (with the net effect that some states have a much greater say in pushing through or blocking amendments than others) is hardly a sane or sensible way to gauge public sentiment on such matters.
By the letter of the law, no. But in practice we do. The federal government is thus-far unwilling to defend their turf on this issue; they have de jure sovereignty but not de facto sovereignty. If a government finds itself politically incapable of exercising a sovereign power, then in a very real sense they no longer have it.
Try openly producing and selling. Multi-million dollar businesses operating in open plain view of the public and any federal agent. States legalize cannabis and the federal government in turn stops enforcing their laws against cannabis in those states, demonstrating that the states have de facto sovereignty to legalize drugs. They didn't just stop prosecution for "basic use" and possession, they no longer enforce their drug laws against growers and dealers either. They've essentially given up, for the time-being at least.
The fact that the same states are not also defying federal gun laws (with some interesting exceptions *cough* alaska *cough*) is another matter entirely. The federal government does seem to be more keen on exercising their sovereign powers when it comes to guns than with drugs.
The Constitution is supposed to be stable and only change in response to broad political consensus. Requiring a supermajority for amendments is entirely appropriate.
Have you seen the formation of any countries? Even one?
Have you ever seen representative anarchy? Please tell me where - I'll be there like a shot!
> embedded journalism to figure out what issues "the people" are beginning to care about
Afaik, journalists are there to tell the people what to think - what do you think propaganda is? Do you think that propaganda is something the Russians do, but your country doesn't?!?
"Representative anarchy" was my shorthand for the concept of "whoever can stand up with a megaphone and get the largest mob behind them wins." To do this, the person with the megaphone needs to understand what hot-button issues will make the mob follow them in their coup or secession attempt. In that sense of understanding the public, they are acting as a kind of representative. Not a democratic representative — but the same kind of representative that you get when someone stands up and shouts something in a bar and everyone else shouts "yeah!"
Yes, the mob can be manipulated. But the nice thing about the breakdown of law and order, is that it stays broken until someone who's good at governing actively re-establishes it. If the mob that the new guy used to depose the old guy, doesn't appreciate the new guy's first few acts in power, then said mob will still usually be riled-up enough — and the new guy's hold on power will still usually be tenuous enough — that the mob will just turn around and depose the new guy, too. (Look at the War of the Roses for many small examples of this; or for a perfect example, at Burkina Faso's two coups in one year last year, where the second one was driven precisely by the public's lack of faith in the guy who did the first coup.)
> Afaik, journalists are there to tell the people what to think
Maybe I chose the wrong word? I suppose I meant intelligence operatives — but not the secret kind. Just, people who are paid to go and watch things and talk to people, and tell their government department what they found out. Census workers, for example! Or the people who go into retail stores to get the pricing data for the central banks to calculate the Consumer Price Index.
I think you have been watching too many films. I don't think people act as a mob, overthrowing anyone.
The governance structure doesn't really accept any real inputs from you and I. They are a bloodline.
You get to vote in a 'representative democracy' where your vote every 5 years is aggregated with 100k+ of other to choose one of 2 candidates, who then purports to represent you in the thousands of decisions he makes over his term.
That's a nice alternative name for "democracy".
Anyway, the problem is that when governments get old, interests get entrenched, and it begins to act against the democratic mandate. Any stable organization with some power can not solve this problem and will only make it worse.
Ideally, elections should be a way to insert instability into the system and avoid this. But those were subverted in a series of ways and the instability just isn't there anymore.
Only reading the federalist papers gives you a stilted opinion of what caused things to be the way they are
> There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the State constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? This we have seen has also been attended to, in a variety of cases, in the same plan. Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing. [1]
Don't get me wrong, the Federalist Papers are important historical documents and provide unique insight into the minds of the authors. But they're not laws, and treating them as if they have actual legal significance seems wrong.
You haven't pissed off anyone. People are downvoting because your comments sounds like they're coming from an edgy 14 year old who wants to shock his parents. You've clearly never given any thought to political philosophy, and your comment gets pushed to the bottom so it won't waste other's time.
I'm not American, I do not admire American nationalism or jingoism. Nor do I admire people who spew nonsense in order to look like rebels against the man.
Maybe a datapoint supporting the Flynn Effect?
I'm not saying that case law isn't also an important aspect of the 'law' and that the constitution shouldn't be amended – I'm not really a hardcore 'originalist' – I just mean that any time a SCOTUS ruling comes out, it's clear that in the public square discussion, nobody has read these very important contextual documents and it is maddening.