Zach Miller (zarfmouse) wrote,
Zach Miller

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Thoughts on Power in Constitutional Politics

This is my response to a discussion about how Judicial Review (the Supreme Court's power to declare laws unconstitutional) is something the Supreme Court granted to itself rather than something from the Constitution. People started discussing how governments where the highest court doesn't have Judicial Review get along and someone suggested that constitutions in those countries are basically toothless laws with no special status.
Well really, keep in mind that in some sense judicial review is a toothless recommendation. The courts don't control the budget or the military -- who is supposed to enforce their decrees? It is only because politicians and voters politically accept the supremacy of the supreme court's judicial review, even when they disagree with it, that the system works at all. That a majority of people could pass a law and then say "oh ok, I guess we can live without that law because it isn't constitutional, we hadn't realized that" is pretty impressive. If you think about this a bit you realize why the SC rarely takes a radical stance, even when maybe some reading of the constitution requires it...and when they do it tends to lead to some pretty massive political upheaval and rumbling among the states and use of the national guard (cf civil rights era stuff) which is why anytmie they DO make a radical stance it is because there is a huge movement calling for that stance so they know there is political support to fight the inevitable battle this will cause.

The whole system relies on the people basically believing that the system is a good one. If there is no faith in the system then who is going to care what 9 powerless judges have to say? All of the scenarios that Peil outlined (e.g. cessation, crisis, no confidence, etc) are still possible, JR is just a stop gap tool we've tacitly accepted to avoid them (much as the constitution is a stop gap tool we've tacitly accepted to avoid unstructured playgroun bully chaos -- at any time some minority entity with huge strength could just stop following the rules (e.g. military coup) but generally they don't because they think the rules are better than no rules at all).

(And of course when I imply that the government generally listens to the SC and acts only constitutionally and that powerful entities (large corporations, the current administration) generally don't do unlawful things....I am setting aside my entire world view for the sake of a discussion about abstract idealized liberalism.)
Later I posted this followup:
Well my point is that the only real teeth are votes, money, and guns. The supreme court doesn't directly control any of these but they help mediate between the folks who do have them or might otherwise go get them but at any time those folks who have enough money, guns, or votes could decide not to submit to the mediation.

Ultimately this is why (besides the goodness of our liberal hearts) we accept the idea of minority rights, because even a minority can get some guns or money (or a sympathetic coalition majority of votes) together and push people around if you don't treat them right.
There's nothing particularly significant about these words, I'm not trying to make any particular point. It's just something that I wrote in a discussion elsewhere that I wanted to share here.
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