Proposed Amendment - Referenda and SC veto of constitutional amendments

Kendra, stop stockpiling ammunition in my sinuses

No, the SC has much more power than the US judicial branch. For example, the role of censor (forum moderation) falls under the judicial branch as well. I am not familiar with the US consititution, but I do not believe that the US Supreme Court can nullify a consitutional amendment passed by congress. Am I wrong?

Certainly, in the Philippines, the Supreme Court has no power to veto a constitutional amendment (which, btw, needs to be ratified by its citizens).



The amendment in question does not allow overriding the SC veto for laws. It only allows overriding of an SC veto of a constitutional amendment.



Tempting.



What happens when the judicial branch decides to block all change and veto everything? Or even threaten a veto on laws that it does not like? Or how about if the SC writes the laws, gives it to the RA, and say it will veto any law *other* than what was written?Remember, it has been argued that the SC can ven veto impeachment of one of its members. Should there be no limits to the SC's power? (If so... well I'm on the SC! Yay!)

Seriously though. When the opinion of a super-majority of citizens clash with the opinion of 9 (maybe even just 5!), and when those differences are strong enough that a constitutional amendment is proposed... who should give way? I say the SC should give way to the will of the people.

I agree that there should be safeguards, at the very least the SC should be given the opportunity to forcefully argue its position. But if we start from the assumption that the citizens of neualtenburg are rational, moral people, we should trust the citizens of neualtenburg to do the right thing.



I'm on the SC, and would vote to reduce its power.

In any system, the buck has to stop with some group and you have to trust that the group in question won't muck things up. The crux of this discussion is the question, "In which group shall we ultimately place our trust not to muck things up?"

Those who prefer the current constitution would rather trust a small self selected group. Those proposing change prefer to trust the citizenry.. In both cases I hope we are speaking as a matter of principle. The fact that I have supported the amendment in question does not reflect mistrust of the current SC. That, in a nutshell, is the issue.

This is where most of you make your fundamental mistake. It's not the will of the majority versus the will of a small elite group (SC). It is the will of the majority versus the founding documents. The SC exists to interpret and protect the Constitution and Bill of Rights to make sure all groups are protected -- even the unpopular minorities. Do you see the difference?

In a republic the majority always gives way to the founding documents. Period. That's the difference between a republic and a direct democracy. By undermining the SC's ability to interpret and defend these documents you undermine the republic itself, reducing it to a simple democracy (mob rule).


You have to decide if you want a strong republic or rule by committee. A strong republic requires a strong and active SC.

~Ulrika~

I'm sorry, but this simply isn't accurate to the extent that most republics have built into their structures the capability to alter the founding documents without reference to them. Unless you're suggesting that the United States is not a republic, this contradicts your assertion.

For example, if all the appropriate federal and 3/4 of the state legislative entities agreed, the US could enact a constitutional amendment banning people named Claude from being senators. Regardless of the other parts of the constitution, this change would stand. It'd be hard to do. But it is constitutionally possible. Neither am I saying it's a good idea, just that it's structurally possible.

A Response

You are saying that because some republics have the ability to add unconstitutional amendments to their constitution, that N'burg should also be able to add unconstitutional amendments to their constitution?

I wrote this portion of the constitution below specifically to prevent that:
That clause was crafted to ensure that our republic is not able to add unconstitutional amendments to the constitution. More than that, the phrase "founding documents" was used to prevent the creation of constitutional amendments that could violate the bill of rights. This was done to prevent absurd laws like "people named Claude cannot be senators" and "homosexuals cannot marry".

Again, the SC does not "have too much power". It is the founding documents that have the power and they must be preserved, especially from legislation which would violate their meaning and intent. By your own admission, your amendment would allow unconstitutional amendments. Why would you want this?

A Revelation

As an aside, what I've just realized about this proposed amendment is that the amendment itself is unconstitutional, as it violates Article III, Section 8 (included above) of the Constitution. If the SC fails to veto it, they will be in violation of the Constitution. I guess it will be a good test of whether the SC is strictly interpreting the Constitution and acting as a true judicial body or if it's just a facade over a direct democracy.

~Ulrika~

Yeehaw! Was I born to write and interpret Constitutional law or what? Time to sleep.

~Ulrika~

It's late, I'll be concise.

1) The concept of an unconstitutional constitutional amendment is one of those uniquely Neualtenburg things. In the real world such a thing, presuming the amendment is enacted using appropriate procedures, simply does not exist.

2) When you wrote


I understood it as being a general statement, which would thus include real world republics which lack unconstitutional constitutional amendments (see above).

3) Your revelation also clarified things considerably. Even your choice of term was telling. I now believe that you view the original constitution of Neualtenburg as perfect, eternal, and immutable. It strikes me that those who believe in God normally ascribe such attributes to sacred scriptures.

Just for the record, how exactly do you interpret that amendment as unconstitutional? Art III, Section 8 does not contain the text you quote. I assume that you're refering to:


Should I assume that your argument is that a referendum that overrules a SC veto somehow violates the notion that the members of the SC are not bound by a strict interpretation of the documents?

That argument does not make any sense (Art. III, Sec. 8 refers to the base of knowledge that members of the SC are allowed to draw upon when emitting opinions, and specifically explains that they're not limited to documents related to Neualtenburg), so I'd like to understand exactly what your argument is.

Mind you, like Claude said, the notion that a Constitutional amendment is unconstitutional is absolutely irrational

This is false.

I'm afraid you have not understood my point, which is disturbing as you'll be voting on an amendment that will radically change the type of amendment that can exist in the constitution. Currently, only amendments that are congruous with the Constitution and Bill of Rights can be added, however with the vote any amendment can be added regardless of its congruity with the Constitution and Bill of Rights.

Please read the post below to find out why.

~Ulrika~

It does. I'm not sure how you missed it. Here is the entire section with the quoted text in bold:
You then stated:
Nope. Let me try it again.

I'll first describe the intent of the SC and then show how it's reflected in the constitution. The intent of the SC is to ensure that legislation does not violate the structures or rights provided by the founding documents. All of its power is derived from these documents. This is reflected in the Constitution in the statement "the Philosophic branch may veto or rewrite and resubmit a bill or constitutional amendment if it is in violation of any of the founding documents." Thus the Constitution conveys to the SC the power to block laws that are in logical or practical violation of the founding documents without exception.

If the new amendment passes, it would allow a democratic process to override the SC veto, creating a law or amendment which would be by definition in logical or practical violation of the founding documents! Let me say that again. Because the SC is permitted to only reject legislation that is in violation of the founding documents, then those bills which are brought in through an override must only be ones that are in violation of the Constitution or Bill of Rights.

As you can see from the argument above, this bill would function as a mechanism that creates nothing but unconstitutional constitutional amendments! It is absolutely irrational!


Finally, because this amendment itself would contradict Article III, Section 8 it is in violation of Article III, Section 8 of the constitution. It means that the SC must according to the Constitution reject this bill. Yet more interesting than that is the very section the amendment seeks to change is the section that forbids this change. Whoa! It is a true Catch 22. I've never seen one before in RL like this. I just wish I weren't the only one who can see it and its potential impact on the city.

Instead of this legislation, I'd seek mechanisms for helping the SC internally prune itself of members who fail to uphold the founding documents.

~Ulrika~

Excellent explanation, Ulrika. Thanks. I definitely misinterpreted your earlier quote.

The RA will probably have to devise another mechanism that is not in violation of the founding documents and that provides the desired lessening of powers of the SC; the veto is exercised after a majority vote among members of the SC, so I cannot antecipate the results of that vote.

Still, this means that the only tool available to the RA to override a veto based on clearly cooked-up allegations by the SC of violations of the founding documents, is plain and simple impeachment. Coming up with "cooked-up allegations" would be more than enough basis for impeachment anyway; and notice that while the SC can only impeach members of either Guild or RA for acting illegally or against the constitution, the RA does not need any reason at all to impeach members of the SC: "The RA can seek impeachment of members of the Philosophic branch by initiating an impeachment hearing." (Art I, Sec 7)

Food for thought.

Claude's proposal calls for the deletion of "or constitutional amendment" in Article III, Section 8.

Ulrika's explanation still sounds like circular reasoning to me. "You can't remove that statement in Article III, Section 8, because that will allow things to happen that Article III, Section 8 forbids." -- How exactly are we to change *anything* in the Constitution, if we follow this kind of reasoning?

Let's take a specific example. Taking Ulrika's reasoning very literally and far would suggest that the recent constitutional change (Amendment 1) reducing the minimum size of the RA from seven to five was unconstitutional because it violated the language of the constitution that said the minimum size of the RA was seven.

However, this change was made de facto without a formal alteration of the document at the beginning of RA 3, when Ulrika was still on the SC, As a matter of fact, I believe that at the time Ulrika was the SC. From the fact that the SC allowed the change to stand we can deduce that, to paraphrase Orwell, 'some bits of the constitution are more equal than others.'

This leaves you with two layers to the constitution, the bits (like minimum RA size) which can be altered and an implicit 'super constitution' of principles which cannot change and which serves as a restriction on what may actually be in the constitution. The problem is that nowhere is it indicated in writing which is which, Absent this, the current SC would in theory have the power to decide which bits of the constitution could be changed and which couldn't.

That is correct.

To be a circular argument the proposition to be proved must be assumed in the premise. Here there is no assumption, as the proposition exists in the Constitution. What you're seeing is actually a Catch 22 (explained in a prior post above).

To answer your question Flyingroc, this immutability only applies to this single piece of the Constitution. Any other component of the constitution can be changed. This sentence is the heart of the Constitution, one which conveys ultimate authority to the founding documents (not the SC) above all other governmental bodies. I hope now you see why I chose to endure all the grief associated with returning temporarily to the forums. I returned to protect the single most important sentence in all of the founding documents (and yes Claude some parts of the founding documents are more important than others).

~Ulrika~

Hmmm



This sounds almost like Sola Scriptura. Again I really don't think it makes sense. You argue here that the Neualtenburg government exists because the documents say it exists (almost like a Titular See). I argue, in a very Locke like way, that Neualtenburg exists as a sim because people voluntarily choose to pay land fee to it, and as a government because people voluntarily subject themselves to its jurisdiction.

Here's a question: Would the RA be able to vote to strike out, for example, Article VI Section 3 (Departure Ultimatums)? Suppose the RA votes to remove Article VI Section 3, that would create a constitution that allows departure ultimatums -- which is against a founding document (the constitution), because article VI Section 3 itself forbids departure ultimatums.

It seems to me, to be logically consistent, nothing of consequence can be removed from the constitution! Thankfully, as gwyn points out, the constitution also provides an out:
"Members of the Philosophic branch are not bound by a strict literal interpretation of the Bill of Rights, Founding Philosophy, Constitution, or the strict adherence to legal precedence." From the same Article III Section 8.

Actually, that is another example of the broad power of the SC, from that section, the SC can contrive to veto anything or even enforce policy not explicitly stated in the constitution (remember, the SC *also* has the role of enforcing the constitution).

So let's see... the SC:

1. Is self-selected, running the risk of becoming an old boys (and girls) club.
2. Can block any law or constitutional amendment to which the citizens have no recourse even if all but the SC believe that the law/amendment is right and just.
3. Has broad latitude in its interpretation of the constitution and the bill of rights
4. Has the power to *enforce* its own interpretation of the founding documents

I think the SC is too powerful.

As one of the primary architects of the Constitution I have the unique ability to tell you precisely what the words in the Constitution mean and why they were put there in the first place. Having done so, I have also presented my argument on why this amendment is both bad and unconstitutional in a very clear and logical fashion.

If you value the constitution above your own need to be right, you will meditate on my previous two or three posts until you understand what I'm saying. If this enlightenment eludes you and you still move forward with this amendment, I can only hope the SC can see, that that one critical sentence in the Constitution was created specifically to stop individuals like you.

I know, those are tough words but I'm going to have to ask you to put your magic marker down and step away from the document.

~Ulrika~

The SC has no power, it is the founding documents that have the power.

To answer your questions in turn:

1. The RA ratifies all SC members which prevents an old girls (and boys) club from forming.
   
2. The founding documents are used to block a law if the SC sees that they are in violation of those founding documents. That's the whole purpose of the SC.
   
3. The term "broad latitude" does not appear in the constitution. If you're referring to the fact that SC members don't have to use a "strict literal interpretation" of the founding documents, it simply means that they are supposed to look at a law's original intent rather than its language in the event that it's vague.
   
4. Yes, the SC interprets and enforces the founding documents. This is what a Judicial branch does.

Again. The SC has no power, it is the founding documents that have the power.

~Ulrika~

As a final addendum to this discussion, I would recommend that instead of removing the power the founding documents posses, that you focus instead on creating more checks and balances in the system. For instance the RA approves new SC members and has the ability to create amendments. What else could the RA (or the AC) do to influence the SC and vice versa? Perhaps you could create term limits for SC members, requiring them to be reapproved by the RA if they wish to serve another term.

There are many alternatives instead of going for the jugular.

~Ulrika~

These are the very measures I was advocating the other night in an informal conversation with other RA members.

I really see two different discussions happening here. The one Kendra refers to in which we try to come to an agreement about changes that everyone can live with that will lessen the likelihood of SC tyranny.

On the other hand, we have the much more abstract and philsophical discussion represented in the last dozen or so posts to this thread, which has included:

unconstitutional constitutional amendments
some bits of the constitution are more equal than others
documents having power.

Claude, Please try to take a step backwards and try to examine what Ulrika is really saying.
Re-characterizing her words into bits of strawmen doesn't help us all to come to an understanding.

My great fear here is that we are following a course that while it may leave us with a form of functional democracy, it will not leave us with Neualtenburg in it's essence.

First of all I believe the two different discussions I mentioned in my last post can operate in parallel. I am very much separating policy development from what I see as a distinct issue.

When I joined the city I believed it to be a coming together of those who sought a sustainable way to build community and share authority in virtual space. The discussions this amendment propoal has brought out make me aware that there are actually very different philosphical presumptions which, at least in the minds of the founders, underpin the city. These underpinnings (implicit herarchy of importance among different sections of the founding documents, in particular) are not made evident by reading the documents. In that sense I feel, a bit like Aliasi I think, that this may not be what I thought I was signing up for.

The notion that documents have intrinsic power and authority in the city is also troubling. The RL documents that repeatedly come to mind when I think of this concept are religious scriptures.

"But Claude,", you say, "don't RL constitutions have authority.?" I suppose they do, for those born under them. However, immigrants choose them, and those who created them voluntarily chose to be bound by the structures they created and gave up some of their individual liberty to do so. This understanding of constitutions as embodiments of popular sovereignty is reflected in their change provisions having no 'untouchables'.

Ulrika said:



Referring to III,8. If that is correct, then apart from the amendment under consideration, what does it mean for an amendment to be unconstitutional? If what Ulrika says is correct, why have the provision in III,8 regarding SC veto of constitutional amendments at all since it only applies to III,8?

If on the other hand, the SC has the uncircumventable power to block other changes to the constitution because they feel them to be wrong, you're back to the oligarchy problem.

I got struck by this comment of Kendra's; it made me pause for a bit to consider this perhaps very philosophical question: What is the essence of Neualtenburg?

What is it about Neualtenburg that makes it what it is? Is it the medieval bavarian build? Is it the constitution? Our laws? Is it that one piece of the constitution that says the SC can veto constitutional amendments? Is it defined by what its founders say it is?

After some reflection, I argue that the essence of Neualtenburg is none of the above. What makes Neualtenburg what it is then? I believe the answer is its people, the community. We, dear citizens of Neualtenburg, are the essence of Neualtenburg. We are Neualtenburg.

I exhort the community not to fear the loss of Neualtenburg's essence; we will not lose it, because we are it. But the task of shaping nburg, of improving it, is not over. When we see flaws in our system, we must fix it. When we see opportunity to strengthen our community, we must seize it.

We should respect tradition, and those who have come before us. But we must not fear change, if that change is good or necessary. In fact, if we are to survive, we *must* change, we *must* evolve.

After all, we are not in Anzere anymore.