The importance of the Supreme Court

[Valmy]

They didn't anticipate the need for protestant groups to circle the wagon & throw their undying religious faith behind 1 party.

It's not a secular government, it's a christian government.

They didn't anticipate the formation of political parties period, which is kind of funny in retrospect since they all formed them, and all the stuff that goes with that, very quickly.

And ok so there are Christian people in the government forming coalitions, what kind of government should they have designed to prevent that? Besides most Democrats are also Christian and plenty of non-Protestants carry a torch for the Republicans. Hans is a Catholic.

I don't get the LOLZ smiley there.

[Grey Fox]

They didn't anticipate the need for protestant groups to circle the wagon & throw their undying religious faith behind 1 party.

It's not a secular government, it's a christian government.

They didn't anticipate the formation of political parties period, which is kind of funny in retrospect since they all formed them, and all the stuff that goes with that, very quickly.

And ok so there are Christian people in the government forming coalitions, what kind of government should they have designed to prevent that? Besides most Democrats are also Christian and plenty of non-Protestants carry a torch for the Republicans. Hans is a Catholic.

I don't get the LOLZ smiley there.

The lolz smiley is my reaction to my misunderstanding of your question.

I don't think they were anyway to do prevent it in the 1770s.

That's not the same thing. The Founding fathers designed a system of government for Christians by Christians. It be unfair to ask them to do anything but as it was their reality.

[crazy canuck]

Berkut, you have identified one of the most troubling things for me.  I have been educated and trained to support the Rule of Law as one of the pillars of a strong Liberal Democracy.   But what happens when the institutions which are charged to uphold the Rule of Law are corrupted?

I would like to hear Oex on this one.  I think this is something his particular area of expertise can helpfully inform. 

I think it is actually even a bit worse than that.

It isn't just a lack of respect for law, which is bad enough. It is a lack of respect for custom which is worse. Laws can be changed, and honestly, they are a rather blunt tool anyway.

The lack of respect for the customs of power that exist outside the law is worse. Because there isn't any "law" those supporting the violation can just say "Hah, but he didn't break the law so its ok!". And this means that if we want to constrain power, we have to go write a law to do so - but if the unwritten law has already been broken, why does anyone want to limit *themselves* when they have power?

If a Democrat is elected, and lets even say they take the Senate as well. What we would LIKE to see happen is that all those customs that Trump threw out get written into law so they won't get thrown out anymore. Like divestuture, declaring your financial situation openly, etc., etc.

Two problems with that:

1. It just sucks that we ahve to write blunt laws to handle subtle and nuanced issues that were previously handled by precedence, custom, and political punishment for their violation. It is, by definition, almost impossible to violate the spirit of a convention, since it is all spirit. But if your law is not well written, or even if it is but just doesn't anticipate some corner case, it becomes easy to meet the letter of the law while flouting its spirit completely.
2. The Dems will be sorely tempted, especially if they really crush the right, to not institute those rules. After all, the last guy didn't ahve to follow them, so why should we? *We* are the good guys, and will be in power for a long time....surely we can deal with that later....

A bit of a quibble which goes to a common misconception which confuses the Rule of Law with Rule by Law.  Rule by Law is the very problem the US is now in.  The Rule of Law is not the rule of laws passed by the government of the day.  If that were so then the adherence to the Rule of Law would mean that one must follow laws which are passed no matter how draconian or arbitrary.  That is the antithesis of The Rule of Law.  It is one of those concepts that is difficult to define but it requires a number of things, including that laws be fair, equally applied to all and, in the context we are discussing, the courts ensure that everyone is accountable to those fairly and equally applied laws.  As such the Rule of Law has a lot more to do with the norms you are talking about and so I think we are essentially saying the same thing.   

[Malthus]

A bit of a quibble which goes to a common misconception which confuses the Rule of Law with Rule by Law.  Rule by Law is the very problem the US is now in.  The Rule of Law is not the rule of laws passed by the government of the day.  If that were so then the adherence to the Rule of Law would mean that one must follow laws which are passed no matter how draconian or arbitrary.  That is the antithesis of The Rule of Law.  It is one of those concepts that is difficult to define but it requires a number of things, including that laws be fair, equally applied to all and, in the context we are discussing, the courts ensure that everyone is accountable to those fairly and equally applied laws.  As such the Rule of Law has a lot more to do with the norms you are talking about and so I think we are essentially saying the same thing.   

Yeah, some people hear "rule of law" and respond "what about the laws in Nazi Germany?"

The Rule of Law, to be meaningful, has to mean much more than 'following the laws'.

I like the approach taken by the World Justice Institute:

Accountability
The government as well as private actors are accountable under the law.

Just Laws
The laws are clear, publicized, and stable; are applied evenly; and protect fundamental rights, including the security of persons and contract, property, and human rights.

Open Government
The processes by which the laws are enacted, administered, and enforced are accessible, fair, and efficient.

Accessible & Impartial Dispute Resolution
Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the makeup of the communities they serve.

https://worldjusticeproject.org/about-us/overview/what-rule-law

Compare 'stacking the Supreme Court to support the President, right or wrong' to these principles ...

[The Brain]

I don't see how the Rule of Law means more than just that, Rule of Law. Surely democracy and freedom of speech (which are separate from the Rule of Law) are ways to ensure that the laws are reasonably OK and not Nazi Germany-esque. The WJI version sounds like lawyers trying to make the law more than it is.

[crazy canuck]

I don't see how the Rule of Law means more than just that, Rule of Law. Surely democracy and freedom of speech (which are separate from the Rule of Law) are ways to ensure that the laws are reasonably OK and not Nazi Germany-esque. The WJI version sounds like lawyers trying to make the law more than it is.

Democracy is not separate from the Rule of Law.  Rather the Rule of Law is essential to a healthy democracy.  I am not sure what you mean by "the law' being made more than what it is.  Without the Rule of Law there can be no democracy.

I wonder whether that is the real problem with Liberal Democracy.  People have forgotten what it is.  This sort of thing was taught in grade school back in the day.

[Malthus]

I don't see how the Rule of Law means more than just that, Rule of Law. Surely democracy and freedom of speech (which are separate from the Rule of Law) are ways to ensure that the laws are reasonably OK and not Nazi Germany-esque. The WJI version sounds like lawyers trying to make the law more than it is.

The Rule of Law has always meant more than simply being law-abiding. The contrast is between rule of law, and rule by law. The former holds that the law acts as a brake upon the arbitrary exercise of power; the latter, that it is the tool of power to get its way.

[The Brain]

I don't see how the Rule of Law means more than just that, Rule of Law. Surely democracy and freedom of speech (which are separate from the Rule of Law) are ways to ensure that the laws are reasonably OK and not Nazi Germany-esque. The WJI version sounds like lawyers trying to make the law more than it is.

Democracy is not separate from the Rule of Law.  Rather the Rule of Law is essential to a healthy democracy.  I am not sure what you mean by "the law' being made more than what it is.  Without the Rule of Law there can be no democracy.

lolwut

[The Brain]

I don't see how the Rule of Law means more than just that, Rule of Law. Surely democracy and freedom of speech (which are separate from the Rule of Law) are ways to ensure that the laws are reasonably OK and not Nazi Germany-esque. The WJI version sounds like lawyers trying to make the law more than it is.

The Rule of Law has always meant more than simply being law-abiding. The contrast is between rule of law, and rule by law. The former holds that the law acts as a brake upon the arbitrary exercise of power; the latter, that it is the tool of power to get its way.

I don't see it. Sounds like a power grab by lawyers.

[Malthus]

I don't see it. Sounds like a power grab by lawyers.

That's the beauty of being a lawyer: we get power under both the "rule of law" and the "rule by law". 

However, lawyer or not - I know which set of principles makes for a better society.

[Barrister]

I don't see how the Rule of Law means more than just that, Rule of Law. Surely democracy and freedom of speech (which are separate from the Rule of Law) are ways to ensure that the laws are reasonably OK and not Nazi Germany-esque. The WJI version sounds like lawyers trying to make the law more than it is.

The Rule of Law has always meant more than simply being law-abiding. The contrast is between rule of law, and rule by law. The former holds that the law acts as a brake upon the arbitrary exercise of power; the latter, that it is the tool of power to get its way.

I don't see it. Sounds like a power grab by lawyers.

[crazy canuck]

I don't see how the Rule of Law means more than just that, Rule of Law. Surely democracy and freedom of speech (which are separate from the Rule of Law) are ways to ensure that the laws are reasonably OK and not Nazi Germany-esque. The WJI version sounds like lawyers trying to make the law more than it is.

Democracy is not separate from the Rule of Law.  Rather the Rule of Law is essential to a healthy democracy.  I am not sure what you mean by "the law' being made more than what it is.  Without the Rule of Law there can be no democracy.

lolwut

Right back at you.  This is pretty basic stuff.

[Eddie Teach]

Seems to me you are redefining democracy to be something more specific than it is. It just means rule by the people. A democracy doesn't necessarily mean all people will be treated equally.

[crazy canuck]

Seems to me you are redefining democracy to be something more specific than it is. It just means rule by the people. A democracy doesn't necessarily mean all people will be treated equally.

At its most reductive form, yes.  But we are talking about Liberal Democracy here.  That does necessarily mean that all people will be treated equally before the law.

[Sheilbh]

The UK doesn't seem to have a similar problem?  What's the difference in the two systems?

Totally different constitutional order, approach to civil service/government work are probably the two big ones I'd flag.

One thing I would think is maybe good to transfer over to the US (but is unilateral disarmament so impossible) is more diverse professional background of lawyers. This all could be nonsense but I think all SCOTUS justices have previously worked through the government at some level which I think is the career ladder for a judge in the US, which means political appointment?