Should the US Supreme Court Decide Cases Based on the Constitution or on Fairness?

[lucy]

What you describe wouldn't be pure democracy because there are restraints on the Mob (majority) to protect the rights of the individual and judicial oversight -- but I'm curious to hear more about how it works.

I think i already agreed that a pure democracy isn't something i would like to have.

In the US, in addition to elected legislators, many States have something called "citizens initiatives" or something similar where citizens can get measures on the ballot to, typically, amend the State Constitution to impose laws -- bypassing the legislature.

We've got that too, on every level from commune to province right to federal initiatives. Before you can start such an initiative, it must be cleared by the government whether it's against the constitution or international laws, whether all the people in the supporting comittee (those are the people who can decide on whether to take an initiative back or not) are Swiss and things like that. If that's ok, you start collecting the signatures. For a federal initiative you need to collect 100'000 valid signatures in 18 months. The latest initiative to be sent to the government is one that demands a ban for offroaders. Now it will go to the two chambers of parlament, whose members will decide whether they're pro or against, or whether they want to work out a "countering law". Then it will be put on the vote, somewhen in the next 1 to 4 years. If it's approved, we will have an article written into our constitution which says "Hummers are not allowed" (of course it's a bit more elaborate)
That is pretty stupid (not that i favour offroaders, as a cyclist, but stuff like that shouldn't be in a constitution), but there is no way to change an existing law, only the constitution. So we have quite some crappy articles in the constitution already

The language is typically reviewed by the courts before making it to the ballot, to ensure that it doesn't violate some other part of the Constitution, so it's not typically a problem that one of these is approved and then struck down by the courts.

That's the same here. However, since the final validation is done by the parlament only after the signatures are collected, it's possible that an initiative is invalidated although there are enough signatures. So far, parlament was very conservative, when it came to vote for invalidity. (Another initiative was approved by the voters which demanded that sexual offenders which are not responding to therapy must be locked up forever, without the right for reassessment of their case. However, it turns out now that that goes against several international laws, and cannot be done like it was supposed to be done.)

What is a problem is that anyone with enough time to gather the petition signatures can amend the State Constitution -- which is how Florida's Constitution wound up with an Amendment dictating the minimum size of the enclosure in which a citizen may keep a pregnant pig (male and barren piggies were, apparently, considered not important enough to include).

Of course. If you don't have the time, you can do it with money too. That's definitely not cool. But i think the possibility that some idiots with time and/or money abuse the right to start an initiative doesn't make the whole idea of participation a bad one.

How do measures in Switzerland make it to the ballot in the first place and is there any judicial review ahead of time?

Yup, but as i said, they are conservative in their reviews. Which i find sometimes irritating, in other instances just right. But as a liberal treehugger i'm heavily biased, of course

And do you have the same problem with frivolous measures being proposed and voted on?

Such cases are very rare here, and usually don't stand a snowballs' chance in hell at the ballots.

Right after 9/11, you probably would have had a majority of Americans willing to put heavy restrictions on Muslims in this country. If it had been put to a vote, it would have passed -- and there's nothing they (the Muslims) could do about it in a pure democracy, because they'd be in the minority. Without protection from the majority, the minority is typically screwed.

Yeah, being in a minority sucks, agreed. And it needs safety catches to protect them.

Another problem pure democracy has is that the typical citizen doesn't have the time to research and understand the intricacies of every bit of proposed legislation -- so they would tend to make decisions based on limited, possibly faulty, information, and within their own self-interest.

Ummm, yes, agreed. But do you prefer one single person, who is maybe/possibly/likely just as misinformed, to make that decision? And what about your upcoming elections? Do you think a majority of the voters are well informed about the goals and believes of McCain and Obam?
And what is wrong with self-interest? Sorry, but when i vote, be it an election, or a vote on a certain topic, i cannot but keep in mind my self-interest. I'm a student, i finance my studies with working as a journalist/corrector, but can't work more than i do because then i couldnt finish my studies. So, right now i can't make ends meet, however hard i try to save money. And with the line of study i'm in, this won't change very much, (i guess i'll never make a fortune with working as a journalist
So, when i vote or elect, should i do so with the interests of some rich and heavily overpaid banker or a guy living off his heritage on my mind? Or should i vote within my own-interests?
Of course, there are also the interests of a larger community (as in "don't ask what your county can do for you, but what you can do for your country), but everytime i keep that on my mind, i get f***** big time. That's apart from feeling very lonely in those cases. * imagine cynical and despaired laughter here*

So, yes, I did just call most people stupid, greedy and bigoted.

hehehe, i don't really disagree on that

I'm also curious how you handle the NIMBY problem -- "not in my backyard" where people want the new sewage plant, but nobody wants it near their neighborhood.

Does everybody in a city vote on the location?

Yep, that's indeed a problem. Usually the plans are finished, when we got to vote on them. We actually don't vote about the sewage plant or it's location, but about the money. The legal process should by then be finished.

Oh, just forgot another thing (this is gonna be one lengthy post): When parlament passes a new law, we can collect signatures for a referendum, so people have the chance to vote on that law. Some laws are automatically brought to the vote, some need the signatures. I don't know details, though. And every change of the constitution must be brought to the ballots too, of course.
All in all, it's good system, i think. However, sometimes it's too slow, but it makes rather sure that the majority isn't fucking with a minority, because the minorities have the chance to start initiatives or referendums too. Hence new laws tend to be crafted the way that most minorities are more or less content with them.

But i think we don't really have a majority here, at least not a stable one. Swiss society is pretty fragmentized, between German/French/Italian parts, cities and countryside, workers and and employers, young and old, educated and less educated, religious and areligious, conservative and progressive and possibly quite some more i can't name right now.
That leads to shifting minorities and majorities, and majorities are usually only found by making alliances, however temporary or even unlikely they might be.