Starting over, the NEW new form of government thread

That’s one way to deal with the difficulty. Though I don’t think you’ve got a right to keep throwing punches that stop just short of my nose, either – Mommy, I didn’t touch my sibling! I just kept jumping in front of them and acting like I was about to punch them! – so you’re going to have arguments about where the line belongs. Is the preacher free to say they know the only right way to behave and everyone else is going to Hell? Is the preacher free to preach that everyone else should be helped along the way to Hell, as long as they don’t actually raise a posse? How about requiring all members of that religion to refuse to sell or rent to sinners?

But in any case, even if everyone agrees precisely that fists must stay at least six feet away from other people’s noses unless consent is given, that still means that one person’s right not to be punched conflicts with the other person’s right to put their fists anywhere they please.

The thread’s about government. Any government has to decide how to deal with conflicting rights: both as to by what sort of process, and in terms of specific instances. Pretending that the conflicts don’t exist is indeed often part of the process; but I don’t think it’s a good idea.

In Scandinavia, they have a thing called a right to roam. It’s an established legal right to hike across any tract of wilderness as long as you don’t take anything, damage the land, or litter. People there consider this a basic fundamental right; nobody can tell you where you can walk.

But here in America, we have a right of property that says the owner of a piece of property can prohibit people from stepping on to his property without being given prior permission. So if you enter a forest without permission, you’re trespassing. And we regard this as a basic fundamental right.

I’m not arguing that one position is right and the other is wrong. But it’s clear that people have different views of what constitutes a basic fundamental right and these views can be incompatible with each other. There’s no such thing as a set of basic fundamental rights that everyone agrees on.

Little_Nemo, that’s an excellent example.

Here’s another interesting alternative viewpoint. There are a lot of people who have an absolutist view of the right of property. They often justify this by quoting John Locke and how he said the rights of life, liberty, and property were fundamental. But a lot them haven’t read Locke and aren’t aware Locke had a different view of the right of property than the modern one.

Locke didn’t believe that the right of property was established by title; he felt it was established by usage. Locke argued that if you owned a piece of land but were just letting it remain wild and unused then you were essentially renouncing your right to that property. Somebody else could come along and start working the land and by doing so they would establish a true right to the property. Property belonged to the person who was doing something useful with the land not to the person who might have a piece of paper saying they owned the land.

Now Locke didn’t make this argument out of the abstract. He was writing at a time when Europeans were claiming ownership of lots of land that was occupied by native people. Locke was developing a theory that justified this. He was essentially saying it was okay for England to take land away from the Native Americans who were living on it because they weren’t using it the way English settlers would.

But go forward three hundred years and try to tell some libertarian that it’s okay to claim some land and build a house on it if its owner of record wasn’t using it.

As for the debate about parliamentary versus presidential systems, my personal view is that I prefer the parliamentary system, because it avoids the risk of a deadlock (mentioned already by others) between the executive and the legislative branch if the two are mutually hostile. Now in this regard, there seems to be a bit of American exceptionalism: The potential for this deadlock in the American system is massive, but by and large it doesn’t happen. The Senate, for instance, could seriously sabotage the work of the executive by rejecting all or most presidential nominees that require Senate approval (which, mind you, applies not only to judges but to lots of other appointments as well - for instance all cabinet secretaries and ambassadors). This does not occur; there seems to be an unwritten consensus in American politics that even in a very polarised time, the Senate doesn’t reject presidential appointees for purely partisan reasons unless there is a stron reason in a particular candidate that makes that candidate appear unqualified. It’s unwritten conventions like this that make the system work, much more importantly than the black-letter text in the constitution. And that is why you could copy the text of the constitution and other statutes verbatim to other countries but still get a very different outcome, if these unwritten conventions are not there. Most of Latin America has copied the U.S. model quite faithfully, but not managed to get it to provide even remotely the same degree of stability. So to sum this up, I think the presidential model has worked well for the U.S., but the parliamentary system is, in case of doubt, the safer bet. The French-style semi-presidential system is the worst, in my view; it it blurs responsibilities and leaves it unclear who is, actually, in charge - the independently elected president or the parliamentarily responsibile prime minister.

As for the structure of the parliament itself, I can see the point of bicameralism in a federal system where one chamber represents the individual components of the federation, but in a unitary system I would be strongly in favour of monocameralism. There really is no point in having two chambers represent the same electorate. The British House of Lords works only because its powers have been reduced to a largely ceremonial role; and the fact that almost all individual states in the U.S. have, at state level, both a senate and a house of representatives is, in my view, an oddity that comes from a desire to mimic the federal level, rather than provide anything meaningful in substance.

As for entrenchment clauses, I’m skeptical about their usefulness. They can work in a system with a strong tradition of judicial review and of respect among elected politicians for the rulings of the courts (as far as Germany is concerned, I’d like to make a minor correction of what has been said above: In Germany, only basic principles such as federalism, democracy and rule of law, as well as the right to human dignity, are entrenched, but the other individual rights in the German bill of rights are not). Then again, I suppose that once there is sufficiently wide political consensus in a society to adopt a constitutional amendment that would run contrary to an entrenchment clause, that clause won’t be worth much; politicians and courts will find a way to argue around it. So here, too, the decisive thing is not so much the written constitutional text but rather an unwritten but shared consensus within a society that there are some things which you “just shouldn’t do”.

Methinks you refer to a different country.



~Max

Sure, these are the high-profile cases. But as I pointed out, lots of appointments other than judges also require Senate consent. That includes, importantly, cabinet secretaries and ambassadors - all positions that are firmly part of the executive branch, and which need to be filled for the executive branch to function. The Senate could bring the executive to a standstill by simply refusing to consent to filling these positions. But that’s not happening.

In 2013, the Senate was having serious trouble confirming nominees to the executive and judicial branch. The Democratic majority faced “unbelievable, unprecedented obstruction” from the minority party, based on rules that allowed the minority to tie up floor proceedings by refusing to yield the floor. (In practice, the mere threat of a filibuster was enough to prevent consideration of nominees)

President Obama described it as “[a] deliberate and determined effort to obstruct everything, no matter what the merits, just to refight the results of an election”. He was referring to what the New York Times reported as “59 nominees to executive branch positions and 17 nominees to the federal judiciary awaiting confirmation votes”.

So, it did happen.

~Max

Sounds like Amway. Or maybe Scientology?

That system, at least the basic outline of what you describe, has a name; it’s a soviet republic. The word “soviet” simply means “council” in Russian. In the Russian revolution of 1905, revolutionaries organised themselves by electing governing councils at local levels first; these local level councils would then elect representatives to the council at the next superordinated level, which would then elect yet another council, all the way to the top of the pyramid at the national level. Even though the 1905 revolution failed, the idea was, for a long time, fashionable among socialists, especially during the many revolutions across Europe after WW1. The Soviet Union, formally the Union of Soviet Socialist Republics, got its name because it was initially planned to be a federation of republic that were individually organised along these lines, even though, in reality, it turned out to be much more centralised and top-down.