Timeline for A country without judicial oversight (over the constitution)
Current License: CC BY-SA 4.0
23 events
| when toggle format | what | by | license | comment | |
|---|---|---|---|---|---|
| Feb 14, 2023 at 13:50 | comment | added | hszmv | @Gouvernathor The two cases are not alike. They aren't reviewing the amendment on it's language is sound, but rather the rejection of the amendment due to a sunset clause. | |
| Feb 14, 2023 at 4:51 | comment | added | 264 champagne bottles on ice | I'm also reminded that in some cases the Supreme Court has formally given up that kind of authority, e.g. when Pakistan's SC admitted the "doctrine of necessity" sanctioning Zia's coup, i.e.. making the military formally the ultimate decider. | |
| Feb 14, 2023 at 4:39 | comment | added | 264 champagne bottles on ice | According to one source freedomhouse.org/country/eritrea/freedom-world/2021 the Supreme Court of Eritrea envisaged by the 1997 constitution has never actually been appointed. It seems that the president has instead instituted a Special Court which he more directly controls iijd.org/2021/06/01/eritreas-not-so-special-court | |
| Feb 14, 2023 at 4:25 | comment | added | 264 champagne bottles on ice | There's also the issue when the constitution says one thing, but something else happens in practice, see Eritrea for instance nyulawglobal.org/globalex/Eritrea1.html but that probably applies to many dictatorships that nominally are something else. | |
| Feb 14, 2023 at 4:19 | comment | added | 264 champagne bottles on ice | Somewhat related politics.stackexchange.com/questions/33781/… and politics.stackexchange.com/questions/18249/… | |
| Feb 14, 2023 at 1:23 | history | became hot network question | |||
| Feb 14, 2023 at 0:11 | vote | accept | Gouvernathor | ||
| Feb 14, 2023 at 0:07 | answer | added | JJJ♦ | timeline score: 9 | |
| Feb 13, 2023 at 23:17 | answer | added | ohwilleke♦ | timeline score: 4 | |
| Feb 13, 2023 at 18:16 | comment | added | Gouvernathor | @hszmv also there's no real "ordinarily" in this matter. This is not the first time the US judicial system has been asked whether particular amendments are valid parts of the constitution or not. It was the case, for example, when a consortium of alcohol sellers challenged the 18th amendment's validity (beforethe 21st repealed it ofc). SCOTUS heard that case (I forgot the name) and accepted standing and review authority, even though it did not (and currently never has) overturn the amendment. | |
| Feb 13, 2023 at 18:13 | comment | added | Gouvernathor | @Barmar that's right, but in addition to what you said there's 1) the fact that the judiciary is the final authority over what the law is (although not what it will be), and 2) in a common-law perspective, what the law/constitution is starts and ends at what it means, in other words the text has no meaning until and unless a judge interprets it. | |
| Feb 13, 2023 at 18:09 | comment | added | Gouvernathor | @hszmv I know what the background of the case is, the fact of the matter is (in part) whether the amendment is part of the constitution or not, and the court system (SCOTUS or not) accepted judicial review on this matter - and they could hardly not to without letting go judicial review over the constitution altogether. | |
| Feb 13, 2023 at 17:53 | comment | added | hszmv | @Gouvernathor Ordinarily SCOTUS would not have any say at any stage. This is the first time a proposed amendment with a sunset clause to passage failed to meet the requirements until after the sunset date, and thus the question is "Is the Archivist right for rejecting it OR do they need to be instructed by the court mandamus to accept the amendment regardless. | |
| Feb 13, 2023 at 17:50 | comment | added | Barmar | @hszmv I think they're using "is" to mean "means", i.e. the courts interpret the words of the Constitution. When deciding Roe they interpreted them to mean that the privacy rights in the 14th Amendment protected abortion, while when deciding Dobbs they reversed that interpretation. | |
| Feb 13, 2023 at 17:50 | comment | added | hszmv | @Gouvernathor, In this case, the Supreme Court hasn't heard it. And the ruling is on a matter of whether the amendment, which had a sunset clause attached to it (has meet the required number of states passing it before the date passes or it fails) which is a novel question for the courts to hear on. Essentially, the archivists is the final stamp for passing an amendment, and he reject this one because Virgina passed it well after the sunset clause lapsed. They are now suing to rule if sunset clauses on amendment proposals are constitutional.+ | |
| Feb 13, 2023 at 15:51 | history | edited | Gouvernathor | CC BY-SA 4.0 |
added 48 characters in body
|
| Feb 13, 2023 at 15:50 | comment | added | Gouvernathor | @hszmv one of the common ways of describing the US system is that "the constitution is what the courts say it is". It's a very common-law point of view, and I can understand seeing it as a wider power than reality, but it's one of the phrases actually used to describe it. As for the amendment power, the courts say what the law is, not what it will be, so they have no say in drafting one ; however they do have a review power over amending the constitution, see Virginia v. Ferriero for a recent example. | |
| Feb 13, 2023 at 15:41 | comment | added | hszmv | I would also say that OP's first paragraph gets the general idea of the relationship between the Judiciary and the Constitution wrong. The courts will decide if a law is compliant with the Constitution, and if it is not, strikes the law in part or in full. They do not dictate what "the Constitution is" and have no say in the amendment process (Only the Legislature has any say in the the steps to amend the constitution and is a check on the Judiciary for making bad rulings.). | |
| Feb 13, 2023 at 15:37 | comment | added | hszmv | New Zealand and Israel are similarly structured with respect to the courts and having no codified constitution. Australia does not count as it's Constitution is found in several documents but is Codified. | |
| Feb 13, 2023 at 14:24 | comment | added | origimbo | Don't forget Parliament itself. UK courts can't declare properly passed Acts of the UK Parliament invalid (that's not how judicial review works in the various legal systems in the UK), and new constitutional law can be passed by simple majority in both houses (except in some weird cases where there are extra steps). | |
| Feb 13, 2023 at 12:15 | comment | added | Gouvernathor | Hmm, good point. In the UK's case, I'd argue that oversight over the constitution is dissolved between the sovereign (for obvious reasons), the speaker, the prime minister and the courts (i.e when Boris tried to prorogate parliament and couldn't, the speaker had a hand in overturning it and the final say went to some sort of supreme court). So while the judiciary doesn't have sole oversight, I wouldn't agree it's an example of oversight being entrusted in the popular representatives alone. Still a very good example, though. | |
| Feb 13, 2023 at 11:36 | comment | added | origimbo | Answers to this are liable to run into definition problems (or at least differences). Do you consider a constitution to be a single document, or do uncodified constitutions count? Similarly, if a constitution (or basic laws) aren't entrenched, do you still care. If you answer yes to both the above, someone will start talking about the UK. | |
| Feb 13, 2023 at 11:01 | history | asked | Gouvernathor | CC BY-SA 4.0 |