Reply #11: I don't know what you mean by "statute" [View All]

[tocqueville]

but a law can be declared "constitutional" by a court. The advantage of leaving a certain amount of liberty (to the electors through Congresses or Parliaments) is that the law can be easily amended and changed in a democratic process, since humans evolve. In the future, abortion might not be needed or regulated differently due to progress in science. Is the constitution to be "amended" again ?

According to you (pure logic) the death penalty can't never be removed because it's "constitutional" on a federal level. But tomorrow a court could declare the contrary (if you can find a "right to privacy" that permits abortion, you can find an interpretation of the constitution that says that life is sacred, thus death penalty unconstitutional). With semantics everything is possible. And you are back to 9 old men deciding what is good or bad for people or not.

The US are pretty alone among democracies with the Supreme Court system, specially with one with so few counter-powers and so much power. All the nomination procedure and discussion today shows that the court is only a political instrument and not a real independent entity.

IMHO the best solution from a democratic point of view is to have the supreme legislative power to an elected body. A supreme court should only rule in civil and criminal matters as the last level of appeal, but NOT on constitutional matters (separation of powers). The constitutionality of laws could be delegated to a special "council" with both lawyers and elected laymen.

For me a constitution is only a frame that presents the rules of the game. It cannot replace law. I have read that many European lawyers are concerned (from a general standpoint) by the fact that judicial discussion in the States replaces lawmaking. It's like making the referee DURING the football game dictate the rules and even invent new ones. But the referees role is to apply the rules, not to invent them.