> One of the three co-equal branches of the US Government, and guardian of the US Constitution
This is incorrect on both counts. First, the branches are not co-equal by any stretch of the imagination. They are created in order of their intended level of power. The Article I branch, Congress, manifestly has far greater enumerated power than the other branches, including being the only branch with the ability to remove members of the other two branches. The dominant check on Congress's power is really Congress itself, although admittedly the other branches have some ability to curtail abuses of Congressional power. Even so, Congress can overrule both a veto and a finding that a law is unconstitutional. It can also pack the courts, and all kinds of other things. The Article II and II branches, Executive and Judicial respectively, have progressively fewer enumerated powers.
As for the second point, the Constitution explicitly gives Congress and the States the sole power to amend the Constitution, but the Judiciary has arrogated that power to itself. That's not guarding the Constitution, it's mutilating it. Likewise, Congress has ceded much of its authority to the executive.
Anyhow this is all moot because the reality is that how the US Federal Government is run has about as much to do with the Constitution as it does with Schoolhouse Rock[1]. Some of the trappings remain, but that's all. It's observably true that none of the branches is in any way a guardian of the Constitution.
"co-equal" doesn't mean "equal". We all know that the 3 branches have different powers and different numbers of powers.
Oxford dictionary definition of "co-equal":
> equal with one another; having the same rank or importance.[1]
The point of "co-equal branches" is to say that they are separate entities and none is subordinate to the others. The "checks" are only really enforced by norms.
Congress can remove the Executive, any Justice or Judge, or eliminate every inferior Article III court altogether. It also controls the number of Justices. If one party can lawfully fire or destroy the other party, the latter is subordinate.
Subordinates always have a certain measure of power over their superiors. Sometimes idiots come back to the office with a gun because they're mad they got fired. However, when the US Constitutional system is working as it was intended to by its framers, Congress is the preeminent branch, precisely because it requires a great degree of consensus to exercise that power, unlike the other two branches. The bicameral legislature really is a great design.
Also it would be pretty amusing for the Supreme Court to attempt to rule that impeaching a Justice is unlawful. I'd love to see the creative "interpretation" in that ruling.
The judiciary is not the ultimate arbiter of what is lawful; that is congress. Not only can congress simply impeach the entire court, it can also replace almost all articles of the constitution* (and the few that formally cannot be replaced are highly problematic and likely not relevant here anyhow, and congress could do an end-run around those too - formally - by a multistep amendment). * This is of course ignoring states (which would need to side with congress), but much more importantly:
All of this is of course misleading, because far before this point, we'd have guns blazing civil war. When the government is so deeply untrusting of itself - we're talking a level that makes dems and repubs look like best buddies here - what matters is practical power, not formalities (which is also why the constitutional limits on congressional power are unwise). And let's hope we never have to find out what would happen then, because it's unlikely to be pretty.
Frankly: any limits on congress's power (and specifically the house) are hugely problematic, and contribute to side-stepping democracy in favor of other forms of currying favor. There shouldn't be any question about congress's supremacy; these questions should be fought in the court of public opinion via representative democracy, rather than historical happenstance or legal quirks. It's fine to require some high bar for dramatic changes, but it's not fine to have giants like California, Texas and Florida on the same level as Vermont and Wyoming when it comes to real, impactful issues; and just as critically - it's not OK for the constitution to make it all but impossible in practice to be altered even when a large majority in favor can be found. The current system might require lots of different phases including convincing 75% of states, meaning states with just 4% of the population have a veto, and in those you only need a majority - so, say 3% of the population needed for a veto - and additionally people don't get a say directly, so you also need to run the risk of considerable lobbying; since vested interests generally oppose change - that makes it even harder. The final nail in the coffin of change is partisanship; itself a consequence of flaws in how voting works in the US it would need the kind of constitutional amendments to fix that partisanship makes almost impossible - since anything one side propose is invariable a step too far (or not far enough, or somehow a little in the wrong way) for the other side. Unsurprisingly, there have been virtually no amendments since the very early days that actually affect the way the country is run or democratic rights as opposed to publicly impactful but hot air in terms of power stuff like the prohibition. Voters are captured by a system designed to deal with realities of its day, which is by now almost unrecognizably far away, with no route for permanent improvement.
The exceptional amendment that did pass late and influence actual democratic rights (e.g. women's right to vote) kind of proves the point - because the only reason that passed is because by human biology all states have roughly the same proportion; and political parties find it very difficult to use partisanship against them since they would have been in the vast majority of households regardless of which partisan "team" they adhere to.
They are not co-equal in the sense of equivalence. Because they have different roles and responsibilities with some minor overlap.
Congress cannot make administrative law or enforce law.
The Executive cannot appropriate money.
The Judiciary cannot enforce law or make laws.
For example: courts can issue contempt orders against the Executive branch (and many have) but the Executive branch can ignore them (as many have); Congress can pass as many laws as it wants, but unless the executive branch enforces those laws they mean little; the Executive can refuse to appoint/nominate Judges and Justices, nothing Congress or the Judiciary can do about that; and so on.
They could, but it would be kind of pointless (that is, Congress could adopt a statute giving an executive officer a non-discretionary ministerial duty to issue administrative regulation with precisely specified content, but it's just easy to pass a statute law with the same effect. Administrative lawmaking is not an independent power.)
> or enforce law.
What are the offices of Sergeant at Arms of each the House and Senate, if they aren’t law enforcement bodies directly controlled by the respective Houses of Congress?
Congress can remove any Justice or Judge. Congress can in fact altogether abolish every single inferior Article III court, because they were all created by act of Congress. Congress can change the number of Justices on the Supreme Court.
Congress can remove the Executive.
Two given parties are not "co-equal" when one and only one party can fire the other party.
> Even so, Congress can overrule both a veto and a finding that a law is unconstitutional
Congress cannot overturn a Supreme Court constitutional ruling all by itself. To enact a constitutional amendment, it needs the support of 75% of state legislatures (or, in an alternate procedure only once ever used, separately elected state ratifying conventions). Overturning a Supreme Court ruling by constitutional amendment requires cooperation of the states
(Other indirect schemes for overturning a Supreme Court constitutional ruling also need the cooperation of other parties - court packing, for example, requires cooperation of Congress and the President)
You're right, congress has given up power to other branches of government. Judicialization of government is a clear problem that has come to weaken the democratic system, despite some high profile wins by progressive groups. For example, the citizen's united decision has been a major blow on democratic representation inflicted by the judiciary in favor or the wealthy elite. This has even promoted the international influence on elections we see today, since companies may have international conflicts of interest that are much more complex than individuals.
Observably false. The Judiciary decides what they want the Constitution to say, and then engages in whatever tortuous reasoning is required to get the desired "reading." The most well known example is when the Judiciary amended the Constitution to forbid the States from outlawing abortion, but there are plenty of others. So, to get technical, Judicial interpretation as it is now practiced is pragmatically equivalent to Congress and the States' amendment power. This is obviously much more than merely striking down an unconstitutional statute.
But, as I said, the U.S. Federal Government just uses the Constitution as a fig leaf at this point. It would be nice if there were a good reference book on how the country is actually governed from an operational standpoint, including who actually writes bills, how junkets are used, the role of lobbying and blackmail, and so on. I don't imagine such a work will see the light of day until long after the end of this government, but it would be interesting.
This seems like an unfair characterization. Whether or not judicial review formally exists[1], in any system where the courts are functionally independent of the legislature it stands to reason that having the lastsay in a matter puts one in a rather consequential position that's vulnerable to easy criticism.
That's why people who think Textualism is a check on the judicial power are mistaken, IMO. Notwithstanding that the first and usually only step in traditional statutory interpretation is to apply the text of a statute according to its facial meaning, the underlying principle is to give effect to the intention of the legislature or the purpose of the law. (Most scholars will tell you those--intention vs purpose--are distinct philosophies, but I personally think it's a distinction without a difference.) Textualism doesn't care about intention or purpose and will gladly apply an interpretation that would have seemed absurd to anyone who drafted or voted for the law before the implications (i.e. the insanity of the world) laid bare the ambiguity. And because no self-professed textualist applies this method with perfect consistency (including and, especially IMO, Scalia), expressions of partisan bias can be even greater as the fiction of textualism provides an effective cover, both for the judge and his critics; discretion is disguised because nobody cares when you apply a meaning with which everybody agrees--or at least which seems reasonably consonant with the application of intent or purpose--yet which is nonetheless at odds with the text on its face. Recognizing one's own inconsistencies in this regard, or proving the inconsistencies of others, is far more work than identifying and calling out specific instances of obvious partisanship--especially when the latter are admitted, like during the Warren Court years.
[1] In Western legal philosophy it's usually considered a violation of separation of powers and of justice more generally for a legislature to directly overturn the result of a particular case, as distinguished from changing the law for future cases. Because the buck stops with the courts, of course they get all the flak for disagreeable decisions, and it's convenient to attribute subversive or even malicious motivations. This dynamic is exaggerated in systems with formal stare decisis because the courts effectively only get one bite at the apple. Without stare decisis courts can apply the law differently in different cases, often in response to partisan or popular reactions, which while lowering the stakes and defusing tension has its own obvious problems regarding consistency and discretion. Indeed, even in civil law countries I think there's a direct correlation between the maturity and strength of the judiciary and de facto application of stare decisis--pretense of a lack of discretion. In terms of obeyance to precedent, French or Italian courts are far more consistent than, e.g., Russian courts. Discretion invites corruption. It's no coincidence you never hear stories about how a Russian judicial opinion substantially frustrated the government or legislature. Likewise for Chinese courts, though in the commercial sphere they're far more independent than in Russia, AFAIU. Similar criticisms have been leveled at Japanese courts--e.g. the Supreme Court of Japan has only once or twice overturned a law even though it nominally has the same power as in the U.S. and there's a strong academic consensus it should have done so in many more instances. Though, the peculiarity of Japanese culture makes it difficult to ascribe it to corruption.
> Textualism doesn't care about intention or purpose and will gladly apply an interpretation that would have seemed absurd to anyone who drafted or voted for the law before the implications (e.g. the insanity of the world) laid bare the ambiguity.
This is probably why originalism is more what one hears about these days. One could argue that it's just textualism with the serial numbers filed off in practice, but in theory at least an originalist would reject an absurd interpretation that was obviously counter to original legislative intent. But my cynical side agrees that textualism or originalism is just another tortuous path to reach conclusions that have already been decided on before hand.
> In Western legal philosophy it's usually considered a violation of separation of powers and of justice more generally for a legislature to directly overturn the result of a particular case, as distinguished from changing the law for future cases.
There are various laws passed that granted veteran's benefits to specific individuals. There's also the Palm Sunday Compromise[1]. The latter was certainly politically controversial, and raised criticism along the lines you mention, but it was within Congress's power.
> This is probably why originalism is more what one hears about these days.
I agree. I think most conservatives tend to identify more with self-styled Originalist scholarship and perspectives. But Scalia made a name for himself academically by coining Original Meaning, which is a twist on strict textualism in the context of constitutional interpretation intended to mitigate the harmful consequences--a legislature can't resolve textual ambiguities in constitutional text as easily as it can statutes. Scalia and others spilled much ink distinguishing Originalism from Original Meaning. At least in terms of scholarship Scalia was consistent that way.
Regarding the Terry Schiavo case (which is a good point, BTW): that the Congress is empowered to do something doesn't mean using that power isn't a violation of general principles of the law. As the Trump years have proved, and which bitter partisanship was already making clear, much of the law as we understand it is normative even in the U.S. And while I think Congress' intervention in the Schiavo case was wrong on almost every level, it's also true that violations of general principles can be used to prevent an injustice. There's often a tension between equity (i.e. fairness) as it regards particular individuals, and the maintenance of general rules and principles. Justice can be a matter of perspective and priorities. That's one reason why courts can and should jealously guard certain discretions (see, e.g., the Michael Flynn, Judge Sullivan Rule 48(a) debate) and independent powers. (EDIT: I realized after the fact that by referencing the Flynn/Sullivan dispute it's ambiguous which discretion I'm referring to--the court's or the government's--but that ambiguity kinda drives home the point regarding the importance and role of discretion. For the record I support Sullivan's position, but it's a very technical debate.) Circling back to Originalism: resolving that tension is one reason behind the emergence and support of so-called Substantive Due Process, which can be construed as the court giving effect to a right (newly discovered or simply never before honored, depending on your perspective) by refusing to give effect to the government's nominal power to violate it--i.e. by procedurally blocking the government. Which is why it's unfair to characterize Substantive Due Process as an oxymoron, at least as it was originally developed by abolitionists at the turn of the 19th century. (Since then courts have been more aggressive at using their equitable powers, which means more than procedurally blocking government actions by, e.g., refusing to hear a prosecution for sodomy or a replevin action regarding an escaped slave, courts affirmatively give effect to a right by enjoining government actions that aren't gated behind a judicial process.)
> that the Congress is empowered to do something doesn't mean using that power isn't a violation of general principles of the law
"Lack of elegance" or "violation of social norms" or similar would (IMO) be a better wording. I see the fact that a united congress is all powerful (can freely amend the constitution, remake the government, etc) as being perfectly in line with (even essential to) the general principles of US law - that the will of the people should rule.
In a Common Law system, which the US has by design, the system formally admits that laws must be interpreted, that they can't say absolutely everything which needs to be said, and that precedent is an important part of that interpretation.
For example: Point to where the US Constitution says you have a right to privacy. Not a right to be free from "unreasonable search and seizure", but a right to be private. It isn't in there. If that means the Founders intended all medical documents to be public, then the Founders were wrong and need to be ignored on this issue; more likely, however, the Founders never felt the need to state the obvious, leaving it to the courts in case it ever came up.
Which it did. Griswold v. Connecticut was decided on the basis of a right to privacy, and that basis is what Roe v. Wade is founded on. Did the Court "amend the Constitution" by deciding that Americans have a right to privacy in medical matters? Was that something it should not have done? Modern morality would say the Court did the right thing, and privacy is an essential human right which any government worthy of the name must recognize.
This is incorrect on both counts. First, the branches are not co-equal by any stretch of the imagination. They are created in order of their intended level of power. The Article I branch, Congress, manifestly has far greater enumerated power than the other branches, including being the only branch with the ability to remove members of the other two branches. The dominant check on Congress's power is really Congress itself, although admittedly the other branches have some ability to curtail abuses of Congressional power. Even so, Congress can overrule both a veto and a finding that a law is unconstitutional. It can also pack the courts, and all kinds of other things. The Article II and II branches, Executive and Judicial respectively, have progressively fewer enumerated powers.
As for the second point, the Constitution explicitly gives Congress and the States the sole power to amend the Constitution, but the Judiciary has arrogated that power to itself. That's not guarding the Constitution, it's mutilating it. Likewise, Congress has ceded much of its authority to the executive.
Anyhow this is all moot because the reality is that how the US Federal Government is run has about as much to do with the Constitution as it does with Schoolhouse Rock[1]. Some of the trappings remain, but that's all. It's observably true that none of the branches is in any way a guardian of the Constitution.
[1] https://www.youtube.com/watch?v=FFroMQlKiag