The reference to discrimination laws was not intended as a reference to the US Constitution, but as another example of a group of US laws which everybody knows (between movies and US companies insisting in training their foreign employees in foreign locations on US law rather than local law) and which is seen as “not necesarily the best option.”
AFAIK, a country’s form of government isn’t limited to what its Constitution says, but by its whole body of law, its application and the mechanisms for changing and updating the law.
In the US, lawyers seem to have to be able to cite the case which established a given precedent. In Spain, if there is a point of law which is unclear, then either the lawyers and judges request clarification (and 99% of times a new law is edited) or a judge does some boutade which, again, leads to a new law, or the government figures out there is a big loophole: again new law. So the lawyers are expected to keep up with the latest law, not to remember which cases led to a change in interpretation of law or established a possible interpretation. This is something else in which the two systems of government differ, and AFAIK it’s not indicated in either Constitution.
:shrug: No argument here. Different places and different populations certainly benefit from different sets of laws, and enforced homogeneity would certainly lead to nothing but grief or wouldn’t you agree 2scents?
I’m not sure whether it was actually true, but in one episode of the West Wing (yeah I know it’s only TV, but I always thought they were pretty ok with their research) they are talking about a constitution for Belarus. The white house guys propose a proportional system and when questioned about the Us system they claim that most (maybe they even say all) other countries that tried it had their democracy colapse within 30 years.
So maybe the reason is just that experience has shown that in many countries it just doesn’t work and it isn’t worth risking it. And the fact that the US does pull it off makes them truly exceptional;)
Missed edit window to repond to your later addition:
In the US, I don’t think it’s ever the explicit function of the courts ever to create a new law: that’s left to the Legislative branch. And I’m not a lawyer, but AFAIK it would be logically impossible for any new case law to emerge in open defiance of the Constitution, as the Constitution is the basis for the case law.
And anyway, no court decision would ever modify our basic system of government. Nor for that matter would any act of Congress, nor any decision by the President. No case law would ever change Congress to a unicameral body, or eliminate the Electoral College for example.
Yes, I think that’s a big part of it. Sometimes the American constitution appears quaint and proto-democratic. Especially the role of the strongman surrogate king president is a bit odd. In a way it seems even more archaic than contemporary constitutional monarchies.
There is no reason why you can’t have federalism in a parliamentary system.
the exact distribution of powers is a bit different, but we have all that, too.
The precedent-based legal system is not unique to the U.S. - it’s based on English law, and is found in several countries with varying systems of government, including the U.S., the U.K and Israel.
I think this is the key point - the timing, before the parliamentary systems had become very democratic. The Founding Fathers seem to have based the structure on they were used to: Executive, Legislature, and Judiciary, but with what they regarded as the balance restored, all backed up with a strong sense of Enlightenment idealism.
One thing to remember about more recent constitutions - in former colonies and following revolutions and wars - is that the politicians (sorry Statesmen!) drafting the new constitutions assumed that they would be the new political leadership. Given this and their natural assumption that they knew what was best for their country, they had very little incentive to set up a system as finely balanced as that of the USA. Heaven forbid! - they might not have been able to take the firm measures needed.
I think a look at the German Democracy is enlightening since the Basic Law is very recent - established 1949 and confirmed in 1990 after the reunification.
It was also made considering the failed Weimar democracy where the executive had gained unchecked power in the end with disastrous consequences.
The federal system with two legislative branches and the Checks and Balances structure were adopted from the US with some improvements like the separate head of state (it seems to me that the US suffers from an excess in executive power recently; also, criticizing the Chancellor is much less “unpatriotic” as criticizing the US President).
But I guess the most important modern element is the consideration of political parties, setting the rules of how they can behave in the Fraktionen and the Mixed member proportional representation where you can both vote for a local politician and the complete party which you prefer, which is IMHO much more democratic than winner-takes-all.
It is not a function of Spanish courts either. But if Spanish courts and/or the College of Lawyers (similar to the bar associations in that you need to be a registered member to work as a lawyer, only no bar entrance exam) say a law is incorrect or confusing, the Legislative has to change it.
Both Canada and Australia are federal states with a parliamentary system, and both countries have survived as democracies for over 100 years, so the system can work if people want it to.
The Australian Constitution borrowed rather a lot from the US Constitution, unsurprisingly, since it was a democratic federal constitution that had (in the 1890s) survived 100 years. However, it did not use the presidential model, because Australian politicians had used the Westminster system for up to 50 years in the self-governing Australian colonies, so they were used to it, and it worked for them.
In that system, the colonial governors were vice-roys, appointed by the Queen, and carrying out the same functions as her; and the colonial premiers were the real heads of the government. After federation in 1901, they became state governors and state premiers, and at the federal level there was a governor-general and prime minister. So, although the state governors in Australia and the US come from the same British institution, they have evolved into rather different functions.
As others have said, if the American colonies had waited a few decades, they probably would have followed the Westminster system, but they instead chose a mixture of a republican government and the British 18th-century monarchy: George Washington becoming a democratically elected King George of the US. The US system works reasonably well, because Americans fundamentally believe in democracy rather than dictatorship, but in the wrong hands it becomes easy to convert into dictatorship.
A parliamentary system, even in a monarchy, is harder to turn into a dictatorship, even though the prime minister seems to have unlimited day-to-day powers, because the PM must keep the support of the lower house, and the members of the lower house always have to think about whether they can survive the next election.
Nah, it’s just unpatriotic to the most rabid partisans of the president’s party. The rest of us tell those guys to shut up, it’s a free country, and that we didn’t vote for that jerk and and we’ll criticize him if we want.
OTOH, some of us take offense when outsiders insult our president. Even I defended Dubya a couple times against some furriners, at least until he became completely indefensible.
It seems to me that one of the strikes against the US model is that it has devolved into a perpetual political campaign. People (at least people from whichever party’s nominee loses next month) will begin running for the 2012 presidential election about a day or two after November 4, 2008. Contrast this with the parliamentary system, where election campaigns are much shorter and much less expensive.
I think that’s right, but why are election campaigns shorter in a parliamentary system? I think it’s because in the US system, emphasis is on the individual candidates, so each candidate has to campaign for individual recognition, both for the Congress and for President. In the parliamentary system, party solidarity is stronger, and voters generally vote for a party and for its platform. And you show why your party is better either by actually carrying out your platform (when in government), or by criticising how the others are doing it and saying your way would be better (when in opposition). No one cares much if the prime minister or the leader of the opposition associated with communists when at university, or has a mistress currently: what’s important is the party’s policy and how it’s implemented.
This is partly true, but I would point out that this is not an inherent aspect fo the U.S. system. For most of U.S. history, campaigns were party affairs, and party platforms mattered. I mean, these were things which they really, seriously meant to do rather than being a series of talking poitns which are largely ignored. Party structure was quite different from, say, Britain or Germany or whereever, but parties were still stronger.
Why that has changed is a huge heaping mess of a problem to wade through, because there were a lot of factors going into it. And it’s only partly related to the “constant campaign” issue.
That state has a written constitution older than the federal one. And Great Britain has an “unwritten” constitution that is older than ours. I was commenting upon the qualifiers necessary to sustain the Most Venerable Constitution idea. You know, I’m the oldest person in the world… if you only count the people in my household.
Since there would no longer be any smaller states, of course they couldn’t be exploited. You can’t exploit something that doesn’t exist. Certainly the people would still be there but your premise is flawed. If you start from the idea that groups of people can’t coexist under the same government without exploitation then where does that leave you? People aren’t all the same.
Why would it need to be enforced? People are social animals. They will tend to homogenize themselves to a certain degree with those they are associated with. Remove the distinctions between Alabamans and Massachusettsites and they’ll become more alike. Certainly that’s likely to cause major problems with groups like Croats and Serbs but we are all Americans, are we not?
I’m not certain you understand yet. The idea is that America needs our unique checks and balances or else the country would fall into tyranny. No doubt you are familiar with it.
I don’t think I understated the situation but yes, as you allude to the Constitution was designed to reduce participation in government by ordinary people. Given our more enlightened view of democracy (which was almost a dirty word back then) why would other countries want to adopt a system built upon antiquated assumptions?