"Constitutional Democracy"

The Constitution ensures that in US politics there is no "winner takes all".

The neo-cons want it all, they are using the claim that they are in the majority (look at the rhetoric when they claim to hold both the White House and Congress and now want to control the US Supreme Court). In order to achieve total control of the entire political process they have to declare war on the Constitution because the Constitution - as it currently stands - doesn't allow that.

It isn't a war of bullets, it's a dirty war of propaganda, lies and half-truths.

Baldimo wrote:

Could you please explain this war with the Constitution in more detail?

No I can't Baldimo. Two reasons. The first is that I am bereft of knowledge of the Constitution. The second is that I would be stepping into the trap that you are laying and I have no intention of doing so. I've been here long enough to see how the Right does this. Take the discussion off on a tangent and then rifle through the latest Talking Points to bog it all down in an orgy of parsing point by point in what amounts to a war of attrition.

So instead let me make my point.

The Constitution was developed to ensure that the majority could never tyrannise the minority. That in itself is pure genius in motivation.

That such a brilliant idea, a central tenet of liberal democracy, could be translated into an effective document is double genius.

My respect for the framers of the Constitution now knows no bounds.

It's why would-be tyrants in the US (unlike many other countries) have failed to take hold.

For a tyrant to take over it would mean an attack on the Constitution itself.

The Constitution ensures that in US politics there is no "winner takes all".

The neo-cons want it all, they are using the claim that they are in the majority (look at the rhetoric when they claim to hold both the White House and Congress and now want to control the US Supreme Court). In order to achieve total control of the entire political process they have to declare war on the Constitution because the Constitution - as it currently stands - doesn't allow that.

It isn't a war of bullets, it's a dirty war of propaganda, lies and half-truths.

The Constitution attempts to make a winner take all scenario hard to accomplish but it doesn't in any way eliminate the possibility of either party having control of both sides of the Congress and the White House and, by using those positions, gaining philosophical control of the USSC.

I'm not trying to trap you on anything, I just asking you to explain a comment you made. This is a debate board you know.

On the subject at hand. I could careless what this guy misspoke, or if he even got it wrong. To nit-pick something so small is a joke. Surly those of you on the left can come up with something much better to complain about then a comment he made concerning what kind of govt we have.

That assumes that the Constitution doesn't support the doctrine of the separation of powers.

I think it does. Because I don't have a good knowledge of the Constitution I can't prove that so make of it what you will. But it seems to me just from what I've read that the Constitution itself intends that all three branches of government should be separate and not one in thrall to the others. I firmly believe that if that doctrine were breached and one political entity gained control of all branches of government that it would mean dictatorship. Benign or not, it would be undemocratic.

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The Constitution attempts to make a winner take all scenario hard to accomplish but it doesn't in any way eliminate the possibility of either party having control of both sides of the Congress and the White House and, by using those positions, gaining philosophical control of the USSC.

That assumes that the Constitution doesn't support the doctrine of the separation of powers. I think it does. Because I don't have a good knowledge of the Constitution I can't prove that so make of it what you will. But it seems to me just from what I've read that the Constitution itself intends that all three branches of government should be separate and not one in thrall to the others. I firmly believe that if that doctrine were breached and one political entity gained control of all branches of government that it would mean dictatorship. Benign or not, it would be undemocratic.

Your right and your wrong.

The branches of power are separate and one does not control the other. One party can control two branches of power but not the third. The President (Ex Branch) is the only person who can nominate a judge into a federal court. The Congress (Leg Branch) votes on and places the judge in power. Neither branch can tell another branch what to do they work on their own.

The question is; can the President, the Congress and the Supreme Court all be of the same political party and still be subordinate to the Constitution? The answer is yes

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The question is; can the President, the Congress and the Supreme Court all be of the same political party and still be subordinate to the Constitution? The answer is yes

Fair enough. I suppose I am having some difficulty with equating judicial offices with a political party (not that it doesn't happen here in a de facto rather than a de jure sense).

Roberts is nominated to sit on the highest court in the land and he doesn't understand that ours is NOT a constitutional democracy but rather a constitutional republic?

Debra_Law wrote:

Roberts is nominated to sit on the highest court in the land and he doesn't understand that ours is NOT a constitutional democracy but rather a constitutional republic?

'Tis but a trifle, a mere quibble.

I'm with fishin'. I've been through this republic/democracy business on here before and I'm surprised that otherwise erudite people get it all wrong.

A "republic" is just a form of government. A republic can be democratic or a dictatorship. America is indeed a republic, it is also a democracy (indirect democracy). Given that the supreme authority of America is contained not within a monarch but the Constitution it's perfectly right to describe America as a "constitutional democracy".

My country has a nominal monarch (the Queen of England is also the Queen of Australia) and a bi-cameral Parliament. We are a democracy (indirect type). Ergo we a are a "parliamentary democracy" . When we no longer have a nominal monarch we will be a republic with a President but we will still be a democracy.

Modern liberal democracies are important examples of representative democracy. In the United States this term is often synonymous with "republic." Another form of representative democracy involves impartial selection of representatives through sortition.

Republican democracy is a republic which is also a democracy. One meaning of the word republic is "object for the people," which embodies the notion of a democracy, making the term "republican democracy" redundant. An alternative definition of republic is any government that is not a monarchy, and by this definition there are abundant examples of states that are republics but that are not democracies, and of states that are democracies but not republics. It could also refer to the notion representative democracy, as one meaning of republic is a system of restricted democracy

The definition of the word 'democracy' from the time of ancient Greece up to now has not been constant. In contemporary usage, the term 'democracy' refers to a government chosen by the people, whether it is direct or representative.

There is another definition of democracy, particularly in constitutional theory and in historical usages and especially when considering the works of the American "Founding Fathers." According to this usage, the word 'democracy' refers solely to direct democracy, whilst a representative democracy where representatives of the people govern in accordance with a constitution is referred to as a 'republic.' This older terminology retains some popularity in U.S. conservative and Libertarian debate.

The original framers of the U.S. Constitution were notably cognizant of what they perceived as a danger of majority rule in oppressing freedom of the individual. (See Tyranny of the majority below). For example, James Madison, in Federalist Paper No. 10 advocates a republic over a democracy precisely to protect the individual from the majority. However, at the same time, the framers carefully created democratic institutions and major open society reforms within the Constitution and the Bill of Rights. They kept what they believed were the best elements of democracy, but mitigated by a balance of power and a layered federal structure.

Modern definitions of the term 'republic,' however, refer to any state with an elective head of state serving for a limited term, in contrast to most contemporary hereditary monarchies which are representative democracies and constitutional monarchies adhering to parliamentarism. (Older elective monarchies are also not considered to be republics.)

Debra_Law wrote:

The same people who use the phrase "judicial activism" to criticize the court when it protects individual rights are the same people who throw around the phrase "constitutional democracy."

Really? lmao Do a google search on the term "Constitutional democracy" (include the quotes) and the references you'll find to the term outside of educational institutions and listings of publications is on buzzflash.com - hardly a bastion of right-wing thought.

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The same people who want to restrict and restrain the court from invalidating state laws are the ones who claim these issues must be left to the democratic processes of the people.

Those who desire to impose their religious and moral beliefs on others through the operation of state laws endorse the following:

"Judicial activism" is BAD; "constitutional democracy" is GOOD.

Maybe they can fool you with their buzz phrases, but they don't fool me.

Blah, blah, blah. You're frothing at the mouth again. I've yet to hear János Kis ever utter the words "Judicial activism". I'm glad to see that you admit that you embrace the concept of constitutional democracy though - since you are one of those very people that wish to "impose their religious and moral beliefs on others".

I appreciate your invitation for me to discuss what I believe is the most important issue in contemporary American self-government: the role of the judiciary. As you know, in constitutional and statutory interpretation, the differences of opinion between conservative interpretivists, such as Justices Scalia and Thomas, and liberal proponents of a so-called living constitution, such as retired Justice Brennan, are sharp and profound. My purpose today is to address common characteristics of judicial activism that, in my judgment, demonstrate its threat to constitutional democracy.

Why don't you stay on topic and search "judicial activism" and "constitutional democracy." You will get lots of hits and with minimal effort, you will see what I'm talking about.

Title: It's All Part of the Process

Peter Robinson: Due Process Clause of the Fourteenth Amendment, no state shall, "deprive any person of life, liberty, or property, without due process of law." Now, Justice Scalia--there is this great advantage to the Scalia position that it can be followed by a layman. He says, look at the text and the text in specific legal tradition, that's the phrase specific tradition that he uses, of the eighteenth century make it clear that what they had in mind to be covered by due process, was only life, liberty, and property, and the broadening of that clause to include a grab bag of other rights, for example the right to privacy, is completely unwarranted. Quite reasonable, wouldn't you say Erwin?

Erwin Chemerinsky: I want to make a point. Notice how Scalia is using his methodology to interpret the Constitution to come to the conservative results he likes. He uses the methodology to say the death penalty is okay, and he believes the death penalty is okay. He uses the methodology to say abortion rights aren't in the Constitution because--everybody brings their own views to interpreting the Constitution. Now the Constitution says liberty, the question is, what are liberties protected by the Constitution? And the Supreme Court, at least since the time the Fourteenth Amendment was adopted, has recognized that liberties can be things that aren't mentioned elsewhere in the Constitution. Since early in the twentieth century the Supreme Court said, privacy is a fundamental aspect of the liberty that we all possess.

John Eastman: I think it's just false to suggest that Justice Scalia is predisposed to a certain conservative outcome and time after time, and particularly in the First Amendment context, but I'm thinking recently in the Fourth Amendment context when he upholds the ability--strikes down the ability of government to use infra red imaging as a search and seizure and he acknowledges that that attempt to search inside one's house just because you can use modern technology and not knock down the door, doesn't make it any more of a reasonable search and seizure. And that would be the non-conservative outcome, the non-law and order outcome. So I don't think he's predisposed in that direction, I think where he ends up most of the time fits the characterization of his predisposition because the rule of law that he is applying leads to those conclusions.

Erwin Chemerinsky: I couldn't disagree with more about this. I think it's amazing that Scalia finds in the Constitution that school prayer is okay, that aid to parochial school is okay, that abortion rights shouldn't be, that affirmative action isn't allowed, that the death penalty is okay. It's amazing how much the framers of the Constitution thought like the contemporary Republican platform. The reality is that every justice brings their views to interpreting the broad words of the Constitution. Conservative justices like Scalia will come to conservative conclusions far more often than not. There may be an exception. More liberal justices will come to liberal conclusions, but that's what the Constitution is about. If it had been written in more detail, it could never have survived for over two hundred years. It's an open-ended document that each generation has to give meaning to.

Debra_Law wrote:

Roberts is nominated to sit on the highest court in the land and he doesn't understand that ours is NOT a constitutional democracy but rather a constitutional republic?

'Tis but a trifle, a mere quibble.