I like the way that the German Supreme Court works. They can decide that a law is wrong or unethical....but after that....all they can do is hand it back to the Parliament and say that the law must be changed within the next year, and it must reflect the problem they identified being changed. They can’t make law....they can only enforce the law or say it won’t work....that’s it.
I always thought that was the way our SC was SUPPOSED to work
This is a good idea although it actual works the other way around. The power of the Federal court to end unconstitutional laws is called the power of nullification and it derives from their oath to uphold the Federal Constitution. The same oath every other federal and State official takes.
Under this power as the court itself defined it 200 years ago when first asserting it, the Court can refuses to enforce a law (by a party finding guilty of breaking it) that the court finds unconstitutional. The Federal court cannot repeal the law but just render it null and void. Hence the name nullification.
The court furthermore cannot demand other branches or officials take any particular action on the account of what they say the law is, as that is outside of their power just as it is outside of the case they are deciding. Doing so as has been pointed out countless time would make them supreme not only over the law but all other branches and levels of the Government. Thus obliterating the entire system of checks and balances, along with in time the rest of the Constitution.
Insolently checks and balances and the enforcement of the Federal constitution for which those checks exist requires all parity’s that take the oath retain the power.
What Federal politicians regularly forget and like to freak out about is that the Federal Government isn’t designed to consistently function. Indeed it’s designed so that should an issue become too divisive or questionable in its legality the Government would be unable to act on it at all.
Inaction or as they call it in congress Gridlock is the very lynchpin to the design of our system of Free Constitutional Government.
Any other system including the German system can be hijacked into lawlessness as easily as the dominate power’s will to do so. The German solution is thus really shifting that power to the elected branch rather than abolishing it all together.
In our system which is built around freedom and the now alien to Washington politicians idea that nothing our Government can or should do is so important that it cannot be shut down for years should it lack the consent of the Governed.
Gridlock IS the KEY feature of Free constitutional Government, this is by design because as our founders understood, freedom comes not from Government but our creator.
Government is merely the fire we use to help protect it from others, But like any other fire it is a dangerous tool as capable of harming us as our enemies.