JimHackerMP wrote:DF's got a point: how would the membership to this council or commission be determined? Who would be on it? How would they get on it? Would Congress appoint it? The Senate alone? The President with the advice and consent of the Senate....see what I mean?

Yeah. In your highly politicised culture it is hard to grasp the concept of apolitical professional public servants such as a judicial commission.

But you asked for what I would do. I would probably argue it needs to be based on a lot fewer political appointments and elected posts in the judiciary.

If you think our civil servants are all political, you misunderstand the system. William McKinley is no longer President of the United States and we don't have a spoils system anymore. But I didn't realize you were talking about the civil service doing it when you said that.

Still, in order to establish some sort of civil service-oriented body that would recommend the appointment to the president, it would have to be established by congressional legislation which could be vetoed by the president or even challenged by (and overturned in) the courts.

And you did say "recommend" the appointment to the president, unless I misread you. Does that mean that the president could overrule it?

Because I wasn't.

Judges are public servants, not civil servants.

And yes, recommend. But a President who overruled it would have to explain why.

I think the way we do it is that if the PM rejects the first pick, he can't reject the next one.

danivon wrote:Because I wasn't.

Judges are public servants, not civil servants.

And yes, recommend. But a President who overruled it would have to explain why.

I think the way we do it is that if the PM rejects the first pick, he can't reject the next one.

Note well: I don't disagree with you, theoretically.

However, in addition to the politicization to which you refer, there is this basic problem: the USSC has become the arbiter of too many issues (because our legislative and executive branches are at war), so when there are two opposed philosophies of performing judicial responsibilities (judicial restraint vs. judicial activism), you are going to end up where we are now.

Doctor Fate wrote:

danivon wrote:Because I wasn't.

Judges are public servants, not civil servants.

And yes, recommend. But a President who overruled it would have to explain why.

I think the way we do it is that if the PM rejects the first pick, he can't reject the next one.

Note well: I don't disagree with you, theoretically.

However, in addition to the politicization to which you refer, there is this basic problem: the USSC has become the arbiter of too many issues (because our legislative and executive branches are at war), so when there are two opposed philosophies of performing judicial responsibilities (judicial restraint vs. judicial activism), you are going to end up where we are now.

Well. That is what comes of combining a written Constitution with a Common Law system. Common law very much is precedent based, meaning judicial or jurist "activism" can create new legal standards and even at time nullify or override statute law. The Constitution serves to be the Prime law, but itself refers to other laws, which creates ambiguity and latitude.

Also, it is quite clear that these two judicial philosophies are bound up in the same partisan and ideological war that the other two branches are engaged in.

Well. That is what comes of combining a written Constitution with a Common Law system. Common law very much is precedent based, meaning judicial or jurist "activism" can create new legal standards and even at time nullify or override statute law. The Constitution serves to be the Prime law, but itself refers to other laws, which creates ambiguity and latitude.

Which reflects a misunderstanding of the American Constitution. It's a written one, yes, but it's not THAT much written. (This at least refers to the federal constitution at any rate.) Four big pieces of parchment, plus 27 short to somewhat-short amendments really doesn't add up to a "written" constitution. The constitution of Australia is "short" compared to others in the world, and it's 44 pp (including the summary and explanations, etc.). The constitution of Maryland, by contrast is 103. The US constitution migth as well be referred to as "largely-unwritten".

Underneath the United States constitution is the "base" of English/British legal tradition. The Magna Carta, whatever you have said about it previously, is our constitution, and always has been, and the massive corpus of British and American common law. The Constitution of 1787, as amended, is but a small piece of a massive constitutional edifice.

Why do you seem to think that an unwritten constitution is "superior"?

Hacker

Which reflects a misunderstanding of the American Constitution. It's a written one, yes, but it's not THAT much written

This statement represents a basic misunderstanding of what the man just wrote...

danivon

Well. That is what comes of combining a written Constitution with a Common Law system. Common law very much is precedent based, meaning judicial or jurist "activism" can create new legal standards and even at time nullify or override statute law. The Constitution serves to be the Prime law, but itself refers to other laws, which creates ambiguity and latitude

To which you seemed to think this response was a "correction" of his misunderstanding?

hacker

Underneath the United States constitution is the "base" of English/British legal tradition. The Magna Carta, whatever you have said about it previously, is our constitution, and always has been, and the massive corpus of British and American common law. The Constitution of 1787, as amended, is but a small piece of a massive constitutional edifice

.

>?

Anyone who says that the Magna Carta is our (let alone the USA's) Constitution probably has not read it all.

Only 2-3 clauses still stand. The bulk of it is about obscure inheritance laws and fish weirs.

And we had plenty of law and uncodified constitutional arrangements before 1215 - and a huge amount more between then and 1776 that had no relation to the Charter.

Magna Carta is important symbolically because it represents the first formalised limits on royal power. In practice though, it was soon repealed by King John's successors and swiftly forgotten by the population,m remaining that way for centuries until it was revived for propaganda purposes.

I think you're understating its' importance Sass. First, while King John's successors tried to ignore it was also reaffirmed by his successors at various times. For example, Edward I in 1297 and King VI in 1423. It also became commonly cited by medieval lawyers against abuses of sheriffs. Also, relatively soon after Magna Carta there was the development of parliament into a formal institution. The two events were not unrelated . The Tudors who wanted to rule with somewhat of a free hand tried to minimize Magna Carta from about the1480s to about 1600, but it was looked to again in the 17th Century as an ancient source for limitation on royal power. It wasn't like there was a Magna Carta, it was forgotten about, and it was dusted off for propaganda purposes during the Glorious Revolution . There was continuity though its' influence waxed and waned over the years .

https://en.m.wikipedia.org/wiki/Magna_Carta
https://en.m.wikipedia.org/wiki/Parliament_of_England

This covers it pretty well:

http://blogs.telegraph.co.uk/news/domin ... gna-farta/

Nope, it was largely forgotten and even if revived by the people was ignored by the rulers of England.

I know that people love myths, and it is hard to accept, but in reality the Great Charter had minimal effect, especially for those who were not nobility. Any rights we now have needed to be fought for long since then.

Revisionist history at its worst. It was not just a symbol; it was an event. Barons demanding that their liberties be respected and that a king not arbitrarily rule. It became a convention to call Parliament to approve taxes after Magna Carta. Within 50 years Momfort had invited the landed gentry to Parliament, the precursor to the Commons. The Parliament as an institution developed during the latter part of the 13th century and into the 14the century. Ultimately, it was parliament that checked royal power and led to the showdown in the 17th century with the parliament winning and the king's power being greatly reduced after 1687.

But it obviously did not happen overnight. It took 450 years. Magna Carta represented a significant starting point and the principles espoused in the document--mainly that there must be checks on royal power and those must be written down--were turned to time and again. Without Magna Carta how does the process to parliamentary democracy get started? It didn't just happen; kings don't give up power easily. There was push-back by strong kings. But the principle of constraints on royal power had been set down. Minimizing Magna Carta may be clever but it does not mean it's right.

Danivon, it appears there is someone who knows a bit more than you on this topic. Now I don't know who to believe.

It's interesting to note that the idea of Magna Carta came from an earlier charter of liberties from about 1100. The British seemed resistant from almost the beginning to powerful rulers. Northern Europe in general seems more resistant to hierarchical thinking. Look at this survey of business attitudes in different European countries.http://www.businessinsider.com/why-nort ... ope-2015-2

As noted in the above article the Vikings were egalitarian and they had a huge presence in England. Germanic tribes were also egalitarian. https://en.m.wikipedia.org/wiki/Thing_(assembly)

Tribes in general do not tend to be authoritarian but this gets changed when agricultural societies develop, according to this article. http://www.unl.edu/rhames/courses/curre ... /boehm.pdf

Could it be that the reason that the reason that Britain and Northern Europe ultimately developed more egalitarian societies is that they did not live for a long time under hierarchical Roman rule and never completely lost their egalitarian principles founded on tribal culture? Interesting to think about anyway. There is a decent argument to make that Protestantism (originating in Northern European countries) contributed to the development of capitalism and democracy.
http://www.brandonkendhammer.com/democr ... 868711.pdf
http://isites.harvard.edu/fs/docs/icb.t ... 202011.pdf
https://en.m.wikipedia.org/wiki/The_Pro ... Capitalism