Sunday, February 13, 2011
Egyptian revolution
The Egyptian revolution, following after Tunisia's is awe inspiring. It will change the entire Middle East, hopefully or the better, and require that we change our thinking about Islam. With respect to our own government, however, I can wholeheartedly agree with Bob Herbert's latest column, When Democracy Weakens, about the lack of true democracy in our own country. We worship stability for the wealthy over the value of true democracy.
Friday, February 4, 2011
Constitutionality of Obamacare
I'm back.
The Balkinization blog has several comments about the recent decision in Florida that Obamacare is unconstitutional, universally condemning the decision as flawed and politically motivated. These are comments by professors of constitutional law, and as such they do not question the more general principle of judicial review of legislative actions. I do not spend much time in my book on the institution of judicial review, believing that it will be taken care of by the other changes I propose, but it is an aspect of the defects of our system. As I see it, the job of the judge is to apply the law to particular cases. This involves some interpretation of what laws apply to the case, but interpretation is minimized as much as possible in the practice of judging. Issues of interpretation of the law are properly left to the legislature as the final decision makers as to what the law is intended to be. This is the case for the judicial system of most other countries. In Britain, my favorite example, the law is what the Parliament says it is. This is expressed as the principle of Parliamentary Supremacy. If there is a dispute as to what the law means, or how it is to be applied, the final authority is Parliament, not the courts. From this point of view, it is not the job of the courts to say whether a law duly passed in Congress is a good or valid law. The law is what Congress passed. There is no magical higher authority. The Constitution is not a sacred document that we have to religiously appeal to as the justification for what we can and cannot do.
Ran Hirschl, a Canadian professor of political science and law at the University of Toronto, has an interesting book on the experience of other countries which have adopted Supreme Courts and the institution of judicial review on the model of the US system. He examines in detail the operation of Supreme Courts in Canada, New Zealand, Israel, and South Africa. His general conclusion is that the establishment of judicial review is an attempt "to maintain the social and political status quo and to block attempts to seriously challenge it through democratic politics." For instance in Israel their Supreme Court serves to preserve the special status of Jews in Israel, and in South Africa it preserves the privileged status of the white, western minority. Judicial review, in short, is just another device designed to limit and thwart the expression of the will of the majority. In the US it has meant the dominance of the wealthy.
Gary
The Balkinization blog has several comments about the recent decision in Florida that Obamacare is unconstitutional, universally condemning the decision as flawed and politically motivated. These are comments by professors of constitutional law, and as such they do not question the more general principle of judicial review of legislative actions. I do not spend much time in my book on the institution of judicial review, believing that it will be taken care of by the other changes I propose, but it is an aspect of the defects of our system. As I see it, the job of the judge is to apply the law to particular cases. This involves some interpretation of what laws apply to the case, but interpretation is minimized as much as possible in the practice of judging. Issues of interpretation of the law are properly left to the legislature as the final decision makers as to what the law is intended to be. This is the case for the judicial system of most other countries. In Britain, my favorite example, the law is what the Parliament says it is. This is expressed as the principle of Parliamentary Supremacy. If there is a dispute as to what the law means, or how it is to be applied, the final authority is Parliament, not the courts. From this point of view, it is not the job of the courts to say whether a law duly passed in Congress is a good or valid law. The law is what Congress passed. There is no magical higher authority. The Constitution is not a sacred document that we have to religiously appeal to as the justification for what we can and cannot do.
Ran Hirschl, a Canadian professor of political science and law at the University of Toronto, has an interesting book on the experience of other countries which have adopted Supreme Courts and the institution of judicial review on the model of the US system. He examines in detail the operation of Supreme Courts in Canada, New Zealand, Israel, and South Africa. His general conclusion is that the establishment of judicial review is an attempt "to maintain the social and political status quo and to block attempts to seriously challenge it through democratic politics." For instance in Israel their Supreme Court serves to preserve the special status of Jews in Israel, and in South Africa it preserves the privileged status of the white, western minority. Judicial review, in short, is just another device designed to limit and thwart the expression of the will of the majority. In the US it has meant the dominance of the wealthy.
Gary
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