I think pretty accurate. Isn't this how it works with the National Security letters as well? You can't even tell a lawyer if the Government is coming after you. One by one the law enforcement agencies are lobbying for laws that strip down the Constitution of all its worth.
It might be time for Americans to pass a system where every new law has to be reviewed by the Supreme Court, like it happens in other countries.
> Isn't this how it works with the National Security letters as well? You can't even tell a lawyer if the Government is coming after you.
In 2006, the USA PATRIOT Improvement and Reauthorization Act rewrote the disclosure rules for NSLs. You can both consult an attorney and challenge the NSL in court.
Consequently, the number of NSLs issued declined and the number of FISA surveillance requests increased after that change.
> It might be time for Americans to pass a system where every new law has to be reviewed by the Supreme Court, like it happens in other countries.
I've always wondered why it is that we don't do that here. It's very much in line with the 'checks and balances' concept of the government's structure.
"I've always wondered why it is that we don't do that here. It's very much in line with the 'checks and balances' concept of the government's structure."
Well, you can look at a country that does and where that leads. In Iran, their Supreme Court is called the "Council of Guardians" and they get to do a lot of pre-passage stuff, including strike the law down pre-emptively, declare that some candidates are not eligible to run, etc. and they get to do all this sua sponte. While it is a fair point that they also have their own police force, I don't think that's the only issue here. It means the judiciary is an explicitly political force accountable to the Assembly of Experts, and hence theoretically to the people, but with a voice powerful enough to shape the terms of that accountability.
I think a better solution would be to relax standing issues regarding particularity of injury where widespread Constitutional violations are alleged. For example, if it becomes illegal to criticize the President tomorrow, I would hate to think that voters registered Democrats could not challenge the law on the basis that their injury is not particularized enough. Similarly where wide-ranging searches are alleged and everyone is injured, the particularity requirement should be relaxed.
Would this tend to politicize the court? As it is, the court can at least ostensibly maintain some distance from the political lawmaking process. If it was an integral part, judges would be subject to a lot more political pressure.
As it stands, the court is the arbiter for whether a law (or section of a law) is legitimate and how it's applied. All this would do is remove the latency between legislation being written and it being 'tested'.
It probably wouldn't be practical, given that they currently don't review anywhere near 100% of legislation (but maybe that is a feature).
I would be concerned about the situation where the court effectively ends up with a veto and maybe decides that they should be the ones in charge. The only way out of that pickle is to reject the constitution.
I don't see how pressure can be applied to a position with a lifetime appointment. You could say, perhaps, that the powers that be could try to extract some pledge of allegiance before nominating/confirming a new justice, but what's to stop the justice from immediately reneging on a clearly unethical / unenforceable agreement?
Edit: I think the argument could be made that it weakens the checks and balances though. As it stands the court can overrule lawmakers, but it takes a long time generally for laws to wind up there. If they have a more immediate veto power who checks them? Not the lower courts which, to some extent, acts as a filter today.
> "I don't see how pressure can be applied to a position with a lifetime appointment."
People don't have to be forced to do things to make effectively political decisions. Being incentivized also works. And social incentive seems to work at least as well as monetary incentive.
People have families and lives and friends.
Consider that the "broccoli" argument against the PPACA's personal mandate -- an argument broadly laughed off by constitutional scholars -- was echoed verbatim by justices with mere social connections to the groups who originally espoused said laughable argument.
I think the SC already has a tough enough workload as it is. If we made them review every single law, then they would just do a half-assed job in both their traditional role and their new role.
Perhaps, but isn't the current workload in some cases the result of not reviewing new laws. So with a system of reviewing new laws before their passage it seems likely that what makes up the court's current workload would decrease over time.
You would also prevent many legitimate but controversial laws, and dramatically reduce the impact of electoral decisions -- what is the point of voting when you know that any representative will probably be unable to pass almost any law? At this point, i don't think more disenfranchisement is the way forward.
> require 80% support to make a new law and 20% support to remove any law currently on the books
That's simply brilliant. Did you come up with that yourself, by the way?
I think that people could be persuaded that this should be a fundamental principle like democracy or free speech. It sufficiently meta that it wouldn't carry a lot of political baggage. For example, a person who ardently supports a particular law might accept this 80/20 principle even knowing that his favorite law could get stuck down.
This idea should be given a catchy name so it can spread as a meme.
I'm unaware of a specific name, but it's not a new idea. See The Moon is a Harsh Mistress by Robert Heinlein. (link to Google Books reference http://goo.gl/IdBoU)
My own wish is for a "balanced budget" amendment for complexity: the government gets a finite amount of complexity they can spend on laws & bureaucracy, and to enact more laws they must first remove others. But you'd need a way to quantify complexity. Your solution is much more practical.
I don't get this complaint. NSA "warrantless wiretapping" intercepts fall into two categories:
- Intercepts where at least one participant is a foreign party and thus are 100% constitutional without a warrant, under well-established national security powers.
- Intercepts where both participants are U.S. nationals.
Obviously, the latter would be unconstitutional to collect deliberately. But the whole point of these systems is to avoid collecting these communications, and to delete them as soon as they're discovered. It is, I think, fair to say that it's nearly impossible to devise a system that will collect what you want out of the first category while being absolutely certain not to intrude on the second. The revised FISA law was designed to ensure that there's judicial review of the process by which communications of the second category are identified and their intercepts destroyed. That judicial review has gone forward, as far as I know, and the program, with the current administration's blessing, continues to this day.
What's the injury to citizens and their rights? You don't trust the executive, under the supervision of both Congress and the judiciary, to follow the law and delete any intercepts with your name on them? Well, then you have bigger problems.
