How to repair America and reconcile the parties?

[Sim]

Recently, I thought about the reasons why American debate seems so heated these days, why polemics florish and either side does not just question the other side's plans for improving the country, but even their legitimacy.

I would like to share my musings: Much of the shrill polemics and hostility seems to stem from the problem that there is no ultimate authority that's beyond the party bickering. For example, when a party is elected and then makes a law I disagree with (be that, for example, Patriot Act or Health Care reform), but plays by the rules (respecting law, the political process and so on), I have to respect that. Of course I can disagree, vote for another party that opposes these policies, and spend my resources for supporting that party. But I have no right to question the legitimacy of that decision, and I have no right to break these rules either. I have to say "fine, they have been elected, and I have to respect that -- next time, I vote against them".

Ideally, this frame should be the Constitution and a court that rules whether particular laws -- be it the Patriot Act or health care reform -- are indeed constitutional. This court needs to be generally considered non-partisan, but its members only obliged to their professional ethos as lawyers. When then this court rules a law is unconstitutional, everybody has to accept it, and when it rules it is fine, people have no longer the right to question this law's legitimacy.

But it seems this frame is broken in America these days: The Supreme Court is no longer a respected non-partisan authority, but both sides believe the respective President and his party make it a partisan tool, by appointing judges who feel more obliged to their party membership, than to their professional ethos. A Republican President will appoint strictly conservative judges, and a Democratic President will appoint strictly liberal judges, and that they share the respective party line is more important than their qualification.

This goes so far that even the Constitution itself is no longer seen as sufficient in providing non-partisan authority to settle such issues: Depending on the respective partisan needs, partisan law experts either twist it to mean anything, by claiming it's a "living document", or they use fundamentalist interpretations that cling to single words, as if it was God's own word, while ignoring what they meant in their historic context, which leaves no leeway for interpretation at all -- and both sides insist they are the only side who really knows how to interpret the Constitution correctly. There are no lawyers who are trusted to be non-partisan, and who people will respect when they define a middle ground.

Because of that, partisan debate becomes really shrill, and people don't just disagree with "the other side", but even refuse to respect the legitimacy of an elected President and administration, call it "unconstitutional" and some even believe violence may be justified to put an end to "the other side's" blatant violations of the Constitution and its values. Then people compare the respective President, if it's Bush or Obama, to Hitler or worse.


What can be done about that?

In theory, one solution could be to write a new Constitution, that takes these shortcomings of the existing system into account and corrects them. Other countries did that, when they found their existing system was flawed. But I don't see this is feasible in the US. The chaos and polemics would be endless when those old partisan party members, who are considered part of the problem, would be given the task to write a new Constitution, and their legitimation would be near zero. Also, it's part of the American tradition and culture to be very proud of the original Constitution, and it would probably be almost impossible to give a new Constitution the same degree of general acceptance.

So maybe a less extreme change could bring a solution: Why not making the Supreme Court a genuine authority that is generally accepted, and not considered prone to partisanship? In order to do so, the process of appointing judges could be changed. No longer should the President appoint the judges, but instead, maybe Congress could do so with a 2/3rds, or even 3/4ths majority -- so that both current parties will have to agree on a judge, or he/she will not be appointed.

When both parties have to cooperate to nominate a SC judge, they would no longer be able to chose them for their partisan stances, but instead, their professional qualification would move into the focus. Ideally, the public would then again respect the SC as a fair, independent, non-partisan authority whose judgment can be trusted. And if that's the case, questions about controversial policies could finally be settled: When this new SC rules a law is unconstitutional, there is no debate, it must be cancelled. Or when it rules it is fine, opponents of that law no longer have the right to question its authority.

What do you think?

Is this analysis of the situation correct, or have I missed important things from the picture? And do you think this solution would be feasible?

 

[CaptainObvious]

Well, to be fair, the partisan bickering has been going on since the election of 1800. I would even argue the fighting between Adams and Jefferson was worse than the fighting is now. And yet the country has still survived.

I disagree that a fundamental interpretation of the Constitution translates to it is as if it is God's own law. It is an interpretation of what was meant by the framers, after all they framed (thus why they are referred to as framers) the Constitution and this country, and it is important to remember this is a country of laws, not of men. They of course added an amendment process for any changes should change be desired.

I don't think rewriting the Constitution needs to be done and I don't agree with your solution. The problem I have is interpreting the Constitution as we see fit has led to many of the problems you address. Instead of trying to amend the Constitution thus guaranteeing it has public support, we have a society that files lawsuits and has 9 unelected judges make public policy, the job of the legislature. So the problem to me is not that the Constitution is flawed, the way we have let the SCOTUS make public policy is.

When this new SC rules a law is unconstitutional, there is no debate, it must be cancelled. Or when it rules it is fine, opponents of that law no longer have the right to question its authority.

This is already true to some extent but it does away with dissent, which to me is one of the most important freedoms we have.

 

[Sim]

I don't think rewriting the Constitution needs to be done and I don't agree with your solution. The problem I have is interpreting the Constitution as we see fit has led to many of the problems you address. Instead of trying to amend the Constitution thus guaranteeing it has public support, we have a society that files lawsuits and has 9 unelected judges make public policy, the job of the legislature. So the problem to me is not that the Constitution is flawed, the way we have let the SCOTUS make public policy is.

What do you propose to change that?

This is already true to some extent but it does away with dissent, which to me is one of the most important freedoms we have.

If you believe I oppose dissent, you have completely misunderstood what I wrote. I agree dissent is vital and necessary. What I believe, though, is that beyond this dissent, there must be a frame of rules respected by everybody. And when a decision you disagree with has been achieved by respecting these rules, you are free to oppose it, of course, but not free to question it's legitimacy.

There is a difference between saying "Obama violates the Constitution, thus he is like Hitler and even taking up arms against his government is fair deal" and saying "I disagree with Obama's policy, but he has been elected and it's constitutional, so I have to accept it, but I will do my best to vote him out of office and to organize democratic opposition against this law".

 

[CaptainObvious]

What do you propose to change that?

I honestly don't know. This is what was feared by the Four Horsemen (the four SC justices who opposed much of the expansion allowed during the FDR administration) and I don't know how we can turn back the clock. Unfortunately as a society we've given into the "living document" nonsense (as that term has been interpreted, not that it can't be amended) and thus it would be pretty much impossible to go back. I don't see how rewriting a new Constitution would change that.

If you believe I oppose dissent, you have completely misunderstood what I wrote. I agree dissent is vital and necessary. What I believe, though, is that beyond this dissent, there must be a frame of rules respected by everybody. And when a decision you disagree with has been achieved by respecting these rules, you are free to oppose it, of course, but not free to question it's legitimacy.

There is a difference between saying "Obama violates the Constitution, thus he is like Hitler and even taking up arms against his government is fair deal" and saying "I disagree with Obama's policy, but he has been elected and it's constitutional, so I have to accept it, but I will do my best to vote him out of office and to organize democratic opposition against this law".

Fair enough, I must have.

 

[Sim]

I honestly don't know. This is what was feared by the Four Horsemen (the four SC justices who opposed much of the expansion allowed during the FDR administration) and I don't know how we can turn back the clock. Unfortunately as a society we've given into the "living document" nonsense (as that term has been interpreted, not that it can't be amended) and thus it would be pretty much impossible to go back. I don't see how rewriting a new Constitution would change that.

Now I'm not saying that to claim Germany is anyhow better than the US, just that it has a system I am familiar with and which I think works: The highest German court is generally considered non-partisan and a fair authority above party bickering. That's because their judges are not appointed by a party politician, but elected by a 2/3rd majority of the parliament, which causes a situation where at least the two large parties have always to agree on a candidate, before he/she is appointed. Thus the court is a generally respected authority.

Because of that, debate hardly ever becomes so heated that people question their opponents legitimacy, by stating "what you do is unconstitional!". When you believe so, you can actually do something about it: Sue it at the highest court, and this court will rule a law constitutional or unconstitutional. In the latter case, the issue is settled, you are right and the government has to skip this law. Or, in the former case, the supporters of the governing party can tell you: "You have to respect this ruling -- the law is constitutional, so stop claiming it isn't!" and the issue is settled too.

I just wondered if such a system would be feasible in the US too.

Fair enough, I must have.

Maybe I should add another example, to make sure I don't exclude myself here, and I don't deny my partisan sympathies:

For example, I would have a much easier time accepting the Patriot Act and other of Bush's policies, if I believed the Supreme Court would not just be an extension of party politics, but reliably rule about the constitutionality of these laws. Because my impression is, when you don't twist the law and employ shisters do make black mean white legally, some of these policies would clearly be ruled unconstitutional.

But since I have the impression the Supreme Court is not doing that job, but instead is just another institution where the Republicans had a majority, I question Bush's authority in the first place.

And to some extent, I understand when people on the right now do the same regarding Obama's laws, although I may generally think many of them are a good idea: When you cannot trust the SC, or legal experts in general, the next step into questioning the legitimacy of that entire government is patent. That's not satisfying, because when taking this to the extreme, it could serve to justify violence against the respective government -- and even civil war.

That's why I wondered what can be done to get back our trust in the system, on both sides. For me, a powerful Supreme Court that plausibly gives reason to believe they are non-partisan and independent, and which boldly upholds constitutional values open for everybody to see, may achieve that. At least I would have a much easier time to accept Bush's legitimacy, if the SC had cancelled some of his laws, but ruled more of them constitutional -- in that case, my trust in the SC and the system would be restored. And I suspect many Obama opponents think similarly about Obama.

At least, it would be nice if we no longer villified the "other side" so much, if we actually had good reasons not to do so, because of better systemic checks against it.

 

[ExpectantlyIronic]

One of America's Constitutional Framers who later became the Vice President, was killed in a duel motivated in part by differences over how the Constitution should be interpreted. The document was cobbled together by bitter political rivals, and so understandably is a source of contention amongst bitter political rivals to this day, even as the political landscape has changed drastically. Any significant change to our Constitution seems impossible given how especially heated political differences are at the moment. Anything suggested without any obvious political ramifications favoring one party or another, would be suspected as a stealth attempt by one or the other to gain an edge.

Cynicism aside, though, anything that might give us more neutral judges should probably be considered, though I doubt it would do much to abate the current temperature in Washington and the rest of the country, as far as politics and culture is concerned. Furthermore, I think many people hold the idea that there is no objective or neutral grounds on which a judge or anyone else can stand; and I recently heard the somewhat radical suggestion from a conservative commentator that the media should not even aim for objectivity, but rather just make bias known. Ironically, it seems many conservatives in America have either wittingly or unwittingly embraced relativism over descriptive matters, though maybe it has been that way all along (a subject deserving of its own thread, really).

As for the debate over how the Constitution should be interpreted, honestly, the whole thing is a completely transparent attempt to advance political agendas by both sides. Notions of allegiance to a particular school of thought regarding its interpretation go straight out the window, it seems, when it stops being convenient to a judge trying to advance his/her agenda. The whole thing's just lipstick on a pig.

In many ways, I think the heated political fighting might be an unfortunate but ultimately tolerable side-effect of living in a large, diverse, and multicultural society. I would like the national debate here to seem more like rational discussion held under the realization that none of our political factions will be "defeated" anytime soon, than a whole lot of yelling, shit-slinging, and cynical political maneuvering; but it's telling and not exactly inspiring that people here can't even agree on that much.

To try and not be so cynical for a second, though, I will say America has held up pretty well for all this sort of stuff going on. We can consider that when the Japanese attacked Pearl Harbor they thought America was too divided as a nation to stand up to them, but we proved otherwise when we sieged their shores and dropped fire and nuclear death down on their cities. It's maybe a funny thing to be proud of, but hell, it's something I guess.

 

[CaptainObvious]

Now I'm not saying that to claim Germany is anyhow better than the US, just that it has a system I am familiar with and which I think works: The highest German court is generally considered non-partisan and a fair authority above party bickering. That's because their judges are not appointed by a party politician, but elected by a 2/3rd majority of the parliament, which causes a situation where at least the two large parties have always to agree on a candidate, before he/she is appointed. Thus the court is a generally respected authority.

Because of that, debate hardly ever becomes so heated that people question their opponents legitimacy, by stating "what you do is unconstitional!". When you believe so, you can actually do something about it: Sue it at the highest court, and this court will rule a law constitutional or unconstitutional. In the latter case, the issue is settled, you are right and the government has to skip this law. Or, in the former case, the supporters of the governing party can tell you: "You have to respect this ruling -- the law is constitutional, so stop claiming it isn't!" and the issue is settled too.

I just wondered if such a system would be feasible in the US too.

I don't know, maybe. I can just imagine the fighting that would go on in redoing this constitution.

I agree with EI in that this is to be expected in a country this large and diverse, and I actually like the political fighting. It sometimes leads to change. And we've been able to survive despite it.

Maybe I should add another example, to make sure I don't exclude myself here, and I don't deny my partisan sympathies:

For example, I would have a much easier time accepting the Patriot Act and other of Bush's policies, if I believed the Supreme Court would not just be an extension of party politics, but reliably rule about the constitutionality of these laws. Because my impression is, when you don't twist the law and employ shisters do make black mean white legally, some of these policies would clearly be ruled unconstitutional.

But since I have the impression the Supreme Court is not doing that job, but instead is just another institution where the Republicans had a majority, I question Bush's authority in the first place.

And to some extent, I understand when people on the right now do the same regarding Obama's laws, although I may generally think many of them are a good idea: When you cannot trust the SC, or legal experts in general, the next step into questioning the legitimacy of that entire government is patent. That's not satisfying, because when taking this to the extreme, it could serve to justify violence against the respective government -- and even civil war.

That's why I wondered what can be done to get back our trust in the system, on both sides. For me, a powerful Supreme Court that plausibly gives reason to believe they are non-partisan and independent, and which boldly upholds constitutional values open for everybody to see, may achieve that. At least I would have a much easier time to accept Bush's legitimacy, if the SC had cancelled some of his laws, but ruled more of them constitutional -- in that case, my trust in the SC and the system would be restored. And I suspect many Obama opponents think similarly about Obama.

At least, it would be nice if we no longer villified the "other side" so much, if we actually had good reasons not to do so, because of better systemic checks against it.

The problem I have is, if you're going to accept the notion that the Constitution is a "living document" to be interpreted as you wish instead of adhering to it's intent, then for example when we have a President or a SC who broadens the Commander-in-Chief Clause to include wiretapping for example we can't cry foul. Either it's to be read broadly or it's to be read narrowly. We can't pick and choose depending on which clause we like or dislike.

As a sidenote, Alexander Hamilton, who was killed in that duel, was never vice-president. Aaron Burr, who was VP, shot and killed Hamilton.

 

[Sim]

I don't know, maybe. I can just imagine the fighting that would go on in redoing this constitution.

Yes, that's what assumed too above. But would it really be necessary to rewrite the Constitution, in order to change the nomination process of SC judges? I'd guess you don't need a new Constitution to turn the power for nomination from the President to Congress or so.

I agree with EI in that this is to be expected in a country this large and diverse, and I actually like the political fighting. It sometimes leads to change. And we've been able to survive despite it.

But you don't like Presidents violating the Constitution, if I get you right, so I thought you would appreciate making the Supreme Court more efficient again when it comes to protecting it. Maybe changing the nomination of judges in a manner that makes them less partisan could help, in these regards. When both parties have to agree on a candidate before he becomes judge, their professional qualities would be in the focus, rather than their partisan stances.

And as I tried to explain above, I don't have a problem with fighting or strong disagreement, I just have a problem with a legitimacy deficit. It shouldn't be questionable whether a respective President violates the Constitution, because partisan lawyers twist the Constitution, but it might be preferable when this job is done by generally accepted, neutral judges. But maybe I am missing something from the picture.

The problem I have is, if you're going to accept the notion that the Constitution is a "living document" to be interpreted as you wish instead of adhering to it's intent, then for example when we have a President or a SC who broadens the Commander-in-Chief Clause to include wiretapping for example we can't cry foul. Either it's to be read broadly or it's to be read narrowly. We can't pick and choose depending on which clause we like or dislike.

I don't have an opinion on American law interpretations. It just seems bad to me that there is this fundamental disagreement about such a vital thing as the Constitution in the first place.

Ideally, a Constitution should be clear cut enough not to be arbitrarily twisted or ignored, but flexible enough to stand the test of time. And there should be a truly independent judicative that is beyond the parties, to protect the Constitution.

Maybe it's just because I am not used to it, but I'd feel it would be really frustrating to see a President in power (be it Bush or Obama) who, as many believe, violates the Constitution, supported by SC judges who twist the law, because they are partisan too, rather than an independent non-partisan SC that has effective power to sack unconstitutional laws, which can settle the issue.

 

[ExpectantlyIronic]

The problem I have is, if you're going to accept the notion that the Constitution is a "living document" to be interpreted as you wish instead of adhering to it's intent, then for example when we have a President or a SC who broadens the Commander-in-Chief Clause to include wiretapping for example we can't cry foul. Either it's to be read broadly or it's to be read narrowly. We can't pick and choose depending on which clause we like or dislike.

I'm not saying people should interpret the Constitution however they want, but I am saying that the intents of different parts of the Constitution are far less clear cut than they're often made out to be.

As a sidenote, Alexander Hamilton, who was killed in that duel, was never vice-president. Aaron Burr, who was VP, shot and killed Hamilton.

Oh damn, you're right. Good catch.