Why is the US Constitution so open to interpretation compared to constitutions of European countries? Why is the US Constitution so open to interpretation compared to constitutions of European countries? Supreme Court justices are de-facto unelected policymakers in the US, whereas in western European countries typically the composition of respective judicial bodies, whether they hold &quot;conservative&quot; or &quot;progressive&quot; personal opinions don't influence the state of affairs much. Why is it so? Is it because the US Constitution generally older and is written in an old-fashioned, more linguistically obscure fashion? Is it because of the filibustered gridlock in the legislature so it's the only way the Americans can change anything on the federal level (they can't pass laws so they pass judicial precedents instead with the help of general elections and presidentially appointed opinionated judges)?
There are several reasons. But a major one is the difference between the civil-law and common-law legal systems. Most European legal systems are civil-law systems, and were significantly influenced by the Napoleonic Code. In this tradition, laws, including constitutions, tend to spell out rights, obligations, and procedures in relatively precise detail, and there is mush less need for or tolerance of judicial interpretation. The European civil law system, at least in its modern form, arose long after the common-law system. It is a historical accident, or rather the result of a good many historical accidents, that the common-law system arose and was maintained in England, and then spread to the UK, North America, Australia, and other places where the British Empire ruled or had influence, while the modern civil-law system arose particularly in France and influenced systems throughout Europe. The French Revolution swept away most of the legal legacies of the medieval system, and particularly of social privilege of law in France. Napoleon, building on this, created a detailed and systematized set of laws, the Code Napoléon or Napoleonic Code. This was imposed on much of Europe under the French Empire. As the Wikipedia article says of the Code: The Code, with its stress on clearly written and accessible law, was a major step in replacing the previous patchwork of feudal laws. Historian Robert Holtman regards it as one of the few documents that have influenced the whole world. The Napoleonic Code was not the first legal code to be established in a European country with a civil-law legal system; it was preceded by the Codex Maximilianeus bavaricus civilis (Bavaria, 1756), the Allgemeines Landrecht (Prussia, 1794), and the West Galician Code (Galicia, then part of Austria, 1797). It was, however, the first modern legal code to be adopted with a pan-European scope, and it strongly influenced the law of many of the countries formed during and after the Napoleonic Wars. The Napoleonic Code did not normally permit the kind of wide interpretation and judicial law-making characteristic of the common-law system. Note that all the codes mentioned in the Wikipedia article quote above are much more recent than the common-law tradition, which has roots going back before the Norman Conquest of England in 1066. The US Constitution grew from a common-law system. Many of the Framers were lawyers practicing under such a system, and all the rest had lived under this system all their lives. In the English system and those systems derived from it, including the colonial systems in North America, judges made new law and interpreted statutes quite freely. It would not be correct to say, as a comment did, that the founders readopted the common law system, or indeed that it had been adopted in England. The common-law system was slowly developed in England, over the course of hundreds of years. it was never designed. At the time that the US Federal Constitution was drafted, there was a common-law system in full force and effect in the United States, and had been for several generations. Few of the Founders had ever lived under any other system, (well, Hamilton spent his early years under a modified French system) and many would have taken a common-law system as natural and inevitable, as Blackstone described it. Those more aware of the legal systems then in place in Europe (including Hamilton and Madison) would probably have seen them as inferior, a patchwork of medieval relics, theoretical principles derived from analyzing Roman law, traditional customary law from various sources, and recent legislation and decrees. (This attitude is evident in The Federalist.) The first of the civil law codes were only starting to be issued, and the unifying force of the Napoleonic Code was still more than a decade in the future (18 years, 1787 to 1805). The founders had no thought of replacing or modifying the common law system or the common law in general. There was no need to &quot;readopt&quot; the common law. Blackstone was considered the foremost legal authority in the early US, and all lawyers studied his Commentaries. (Citations to the Commentaries occur in quite a few Marshall court cases.) Early US Supreme Court decisions confirmed and solidified this pattern, especially those of the Marshall Court. It was that court which decided Marbury vs Madison first exercising the power of declaring federal laws void for unconstitutionality. It was that court which decided McCulloch v. Maryland determining that the Federal Government could establish a bank in the absence of any explicit power to do so, and that once established, it was not subject to state taxation. It was that court which decided Fletcher v. Peck in which the Court for the first time ruled that a state law was unconstitutional, and that a contract, even one made via a corruptly passed law, could not be voided by a later law. It was that court which decided Martin v. Hunter's Lessee, holding that Federal courts may hear and decide appeals of state court decisions when they rest on federal law or the federal Constitution, and that those decisions are binding. It was that court which decided Cohens v. Virginia holding that state laws inconsistent with valid Federal laws are void, and that people convicted of crime may appeal to Federal courts if they claim violations of Federal Constitutional rights. That court decided Wheaton v. Peters holding that there could be no copyright in federal judicial opinions, upholding the power of Congress to grant copyrights, and rejecting the concept of a common-;aw copyright for unpublished works. That court decided Gibbons v. Ogden holding that regulation of interstate water navigation was a power of the federal Government under the Commerce clause. Many of these cases effectively made policy decisions and shaped the structure of US Federalism. The Marshall Court had a particular dislike for bankruptcy laws, and held several state laws that discharged debts in bankruptcy void as violations of the Contract Clause. This had significant effects on the industrial policy of the early 1800s. Marshall's long tenure as Chief Justice (1801-1835, still the longest serving Chief Justice in US history) and his dominant position on the court (he wrote more than 75% of the decisions in most terms, and unanimous decisions were far more common at that time than they have been since) enabled him to strongly influence the pattern of the Supreme court as an institution. Since then this tradition of Constitutional rights and powers, and Court decisions interpreting them as major policy influences has persisted. This tradition arose while the Constitution was still relatively new, and its language was the ordinary legal language of the day. It has persisted through periods without anything like the current political partisan gridlock. (Although the partisan heat between the Federalists and the early Democrats, particularly over the election of 1800, was at least as hot as today's, IMO. It should be noted that Marshall was a firm Federalist.) It may have been influenced by the comparative novelty of a written constitution superior to ordinary laws, and not subject to easy alteration. The tradition has persisted in significant part by what might be called historical inertia. Once the pattern was set by the founders and solidified by the decisions of the Marshall Court, it would have required a major effort to change it, in some ways greater than the effort that drafting and ratifying the Constitution took. Changing the way the Supreme Court interprets the Constitution would probably have required significant changes in the way US lawyers in general thought of and practiced their profession, and might well have cast doubt on many of the Marshall Court decisions. Most of those working =under the system were at least roughly satisfied with it, even when they strongly disliked particular decisions. (For example, the Dred Scott decision of the Taney Court {Taney was Marshall's successor}. This, in effect, held that Negros could never become US citizens and had no rights that needed to be respected, and that a free state could not free slaves brought in from a slave state.) There was not the wide consensus and heavy pressure for change that would have been needed for such a major upheaval. Occasional periods of partisan gridlock, such as the Federalist/Democratic conflict of roughly 1795-1815, and the Republican/Democratic conflict of 1845-1861 may have reinforces this patterns to some degree, but it persisted even though periods of greater bipartisan cooperation. By the mid-20th century it had become so strongly set that the Roosevelt &quot;court-packing&quot; plan never had a chance of being passed, even though New-Deal activists were highly frustrated with what they saw as obstruction by the Court. The current episode of partisan gridlock, has its roots in the 1980s, but did not become dully developed until the late 1990s or later. By then the style of Supreme Court interpretation of the Constitution had been set for over 150 years, and there was no realistic prospect of a change.
In most US states such rules are set by the state's highest court, often but not always known as the State Supreme Court. The legislature could set such rules, but normally does not. It may authorize the court to do so. Mote that the Oregon rules (on a page easy to reach for the one linked above) say: Proposed changes to the Uniform Trial Court Rules (UTCR) and Supplementary Local Rules (SLR) are reviewed annually by the UTCR Committee. The committee makes recommendations to approve, disapprove or modify these proposals. After considering these recommendations, the Chief Justice or the entire Supreme Court, reaches a final decision on whether to approve or disapprove a proposed change. The Georgia rules state: **Rule 1. PREAMBLE **- Pursuant to the inherent powers of the Court and Article VI, Section IX, Paragraph I of the Georgia Constitution of 1983, and in order to provide for the speedy, efficient and inexpensive resolution of disputes and prosecutions, these rules are promulgated. Rule 1.6 The Council of Superior Court Judges shall have a permanent committee to recommend to the Supreme Court such changes and additions to these rules as may from time to time appear necessary or desirable. [Emphasis added] Many other states have somewhat similar procedures. Others including NY and California, set more of the rules by statute. On the Federal level, the various Federal Rules of Procedure (Civil, Criminal, and Supreme Court, perhaps others) are set by the Supreme Court, although they are usually drafted by an ABA committee Court appointed advisory committee and submitted to the Court for approval, I understand. Many (but not all) state rules closely imitate the Federal rules, down to the numbering and wording in many cases.
The Supreme Court's order is not official and binding until it is &quot;delivered in open Court.&quot; See uscourts.gov, &quot;Supreme Court Procedures.&quot; Until that point in time, the Court has not produced any legal information for lower courts to follow or disregard. When the Court hears an appeal on the merits, it will generally delay issuing its order until the reasons are prepared. On emergency motions (e.g. requesting a stay of execution), these orders are often released immediately after the Court votes, and often without reasons. If there were an urgent matter requiring an order as soon as possible after hearing, I do not see anything that would prevent the Court from announcing the order and delaying written reasons until later, but even in Bush v. Gore, they were able to decide the case and produce written reasons in one day. There is also a narrow and seldom-used ground for the Court to revisit a final order by petition for rehearing (see Rule 44 and Brian De Vito, &quot;When U.S. Supreme Court Decisions Are Not Final: An Examination of the Rehearing Rule and the Court's Application of it in Kennedy v. Louisiana&quot; (2010)).
Generally speaking the &quot;blessings of liberty&quot; phrase from the preamble to the US Constitution is not relied on for anything. It does not grant additional power to Congress or the Federal government as a whole, neither does it restrict the Federal government beyond the restrictions already included in the body of the Constitution. Congress often accepts hearsay when it takes testimony before a committee. Such testimony need not comply with the rules of evidence that apply in court. I am not clear what you mean by &quot;to pretext privacy and the right to try&quot;, please clarify this. I am not aware of any &quot;right to try&quot; under the Federal or State governments. The word &quot;pretext&quot; is not usually used as a verb in this way. Edit The link on &quot;right to try&quot; goes to a Quora question about laws passed by Congress later being held to be unconstitutional. That does happen. but I have never herd it called &quot;the right to try&quot;. The link on &quot;pretext&quot; goes to a security.se question about a &quot;convict internet&quot;. I don't see what that has to to with the preamble to the Constitution. 2nd Edit The &quot;blessings of liberty&quot; phrase from the preamble has nothing to do with laws against discrimination, neither authorizing nor restricting such laws.
The UK has parliamentary sovereignty, not separation of powers Unlike, say, the United States, where the legislature, the judiciary, and the executive have co-equal power in their respective spheres, in the UK, the judiciary and the executive are subordinate to Parliament. The courts have no power to nullify an Act of Parliament for being unconstitutional like they do in jurisdictions where a written constitution gives them such a power like the USA, Canada, or Australia. The purpose of the Declaration of Incompatibility is to advise Parliament that the law they have passed contradicts the HRA and they should think about that and decide if that’s what they really wanted to do. That means that the UK Parliament could pass the Arbitrary Bollock Removal Act 2023 (ABRA) tomorrow and it would be valid law. The courts can still provide judicial review of the actions of the executive under ABRA but they cannot declare the law a nullity. That is, the Minister’s actions can be scrutinised to ensure they followed the ABRA and other established principles such as procedural fairness and, if they didn’t, declare the executive actions void. However, if they did follow the law, off come your nuts.
No The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. Any courts the Congress creates are, by definition, inferior. Of course, Congress can overrule a SCOTUS decision by passing a law to that effect,unless the decision defines a right under the Constitution. So they couldn’t overturn Roe but they could overturn Dobbs. It’s largely the gutlessness of Congress in grappling with controversial issues that has put SCOTUS in the position of lawmaker.
See this working paper by Silvia Ferreri for an excellent write-up of this issue. The key point is that because each linguistic version of legislation is equally authentic, none can be taken as the authentic version. The court then resolves this by applying two principles: comparing the linguistic versions and giving deference to legislative intent. This is necessarily a case-by-case analysis. The paper calls attention to Case C‑445/09 arising from the Netherlands, where 9 different linguistic versions are compared and shows that the straightforward Dutch reading of the legislation in question isn't compatible with the other linguistic versions or legislative intent. In paragraph 25, the decision also contains a concise summary of the general principle of interpreting laws in multiple languages: According to settled case-law, the need for uniform application and, accordingly, for uniform interpretation of an EU measure makes it impossible to consider one version of the text in isolation, but requires that it be interpreted on the basis of both the real intention of its author and the aim which the latter seeks to achieve, in the light, in particular, of the versions in all languages (see, inter alia, Case 29/69 Stauder [1969] ECR 419, paragraph 3; Joined Cases C‑261/08 and C‑348/08 Zurita García and Choque Cabrera [2009] ECR I‑10143, paragraph 54; and Case C‑473/08 Eulitz [2010] ECR I‑0000, paragraph 22).
Yes The only accurate thing in the linked article is: &quot;I am not a Constitutional lawyer.&quot; That could be taken further into &quot;I have no real idea how our legal and political systems work.&quot; One of the tasks of the Massachusetts Supreme Judicial Court is to interpret the laws of Massachusetts including the Massachusetts Constitution. In Goodridge v. Department of Public Health the court decided that the Constitution provided for equal protection and due process and that if the state wished to discriminate against people on the basis of sex they needed a good reason. The reasons the state put forward were: providing a 'favorable setting for procreation'; ensuring the optimal setting for child rearing, which the department defines as 'a two-parent family with one parent of each sex'; and preserving scarce State and private financial resources. On 1. the court said marriage is irrelevant for procreation and vice-versa. On 2. they said Massachusetts law on child welfare dealt with the &quot;best interests of the child&quot; and that it is not in those interests for the state to deprive the child of benefits because it doesn't like the sexual orientation of the parents. On 3. they said equal protection means equal protection. In a common law legal system like Massachusetts where courts have the power to strike down legislation then that takes effect as soon as the decision is published. The law ceases to exist without the legislature or the executive doing anything. Now, the people of Massachusetts are free to amend their constitution to outlaw same-sex marriage or remove equal protection rights if they want. However, at the time and subsequently, the majority don't want.