Subject: AH Challenge: Judiciary Branch Strongest Date: Sun, 30 Sep 2001 20:44:18 -0400 From: Logan Ferree Organization: MindSpring Enterprises Newsgroups: soc.history.what-if Here's an curve ball challenge. Have the idea of separation of powers between three branches develop as on OTL, but with the end result being the Judiciary branch being the most powerful in most countries that have separate branches of government. Each branch will have the same duties and abilities as OTL, roughly, but somewhere in the development of the early states such as the US, the Judiciary expands its power faster than the others, and reigns supreme. Being American I mostly am thinking of the United States, but having the Judiciary supreme globally would be interesting to. Here are some thoughts: * The Judiciary's ability to rule certain laws unconstitutional develops into a direct veto that the legislature cannot over-ride. Instead of waiting for challenges to the laws, the Judiciary branch has the ability to strike down laws when they are passed. * Building on an alternate result of 1793 or a similar incident, the Supreme Court gives advisory opinions and not just deciding on specific cases. European Courts usually do this, so this isn't that implausible if applied to America. * After trying people in absentia, the Judiciary branch develops a Bounty Hunter like branch that works to track down people who have already been tried and bring them to justice. * Ideas about a social contract between the government and the people are reinforced with Constitutions taking on the form of a corporate contract more and more. The Judiciary is the branch that decides in cases where the people believe there has been a breach of contract, but don't really want to start a revolution just yet. Thoughts? Logan Ferree Subject: Re: AH Challenge: Judiciary Branch Strongest Date: Mon, 1 Oct 2001 12:25:56 -0400 From: "Randy Appleton" Organization: Posted via Supernews, http://www.supernews.com Newsgroups: soc.history.what-if References: 1 "Logan Ferree" wrote in message news:3BB7BC62.E6A63B3A@roanoke.infi.net... > Here's an curve ball challenge. Have the idea of separation of > powers between three branches develop as on OTL, but with the end result > being the Judiciary branch being the most powerful in most countries > that have separate branches of government. > Thoughts? > > Logan Ferree > Interesting .... Imagine a world where the list of rights is expanded by the supreme court. We have a right to medical care, education, safety, etc. Now imagine that the court system is forced to balance these rights one against another. "No. You may not spend that money on road repair until you have met your obligation to the school system." Such a system could produce LOTS of judicial interference in the political system. Further, the result would be judges arguing for particular problems being solved, which might make them quite popular. The judge who increased spenidng on schools might just get himself re-elected/re-apointed. -Randy Subject: Re: AH Challenge: Judiciary Branch Strongest Date: Mon, 01 Oct 2001 19:18:39 -0400 From: Logan Ferree Organization: MindSpring Enterprises Newsgroups: soc.history.what-if References: 1 , 2 Randy Appleton wrote: > Interesting .... I try so hard to make it so. > Imagine a world where the list of rights is expanded by the supreme > court. We have a right to medical care, education, safety, etc. Which is what I was hinting at in the Social Contract scenario. It might be difficult in the US today to argue that the Constitution creates a right to medical care, but suppose that it worked like a contract and in return for allowing for what could be seen as invasions of freedoms and the like, the people are granted universal medical care. Or in return for agreeing to universal conscription and a mandatory one year term in the military, universal free education through the university level. > Now imagine that the court system is forced to balance these rights > one against another. "No. You may not spend that money on road > repair until you have met your obligation to the school system." Interesting. But I was thinking more like "Yes, the government has violated its contract to provide universal medical care." If the government doesn't work to fix that, a revolution or overthrow of the government might be justified. Breaching of the Social Contract can get very violent. However this would be in a world where we had the idea of Social Contracts and the right to rebel going to the extreme. Still interesting though. > Such a system could produce LOTS of judicial interference > in the political system. Further, the result would be judges arguing > for particular problems being solved, which might make them > quite popular. > > The judge who increased spenidng on schools might just get > himself re-elected/re-apointed. Very true. Logan Ferree Subject: Re: AH Challenge: Judiciary Branch Strongest Date: 1 Oct 2001 20:28:14 -0700 From: Jonathan I. Edelstein Organization: Newsguy News Service [http://newsguy.com] Newsgroups: soc.history.what-if References: 1 , 2 On 1 October 2001, Randy Appleton wrote: [deletia] > Imagine a world where the list of rights is expanded by the supreme > court. We have a right to medical care, education, safety, etc. > Now imagine that the court system is forced to balance these rights > one against another. "No. You may not spend that money on road > repair until you have met your obligation to the school system." > Such a system could produce LOTS of judicial interference in the > political system. Taken to extremes, such a system could result in the judiciary, rather than one of the political branches, being the arbiter of the budget process. The court would announce the services that every citizen had a right to expect from the government, take evidence concerning the amount of money necessary to provide those services, and then set the tax rate at the level necessary to raise the required funds. There wouldn't be any legislative budget process - presentation of evidence by advocates of various spending priorities would take the place of political debate. I'm assuming, BTW, that there would be some sort of constitution - I can't imagine anyone agreeing to a system like this without _some_ limits on judicial discretion, not to mention a definite hierarchy of courts and a regularized process for selecting judges and executive- branch officials. Presumably, then, the people would be able to make binding law by amending the constitution, but this would be the _only_ way (other than convincing a court to revisit its precedent) to overrule a judicial decision. I would anticipate that constitutional conventions would be more frequent in this timeline - even assuming that the people were satisfied with the concept of judge-made law, the courts would occasionally render decisions bad enough for the people to want to overturn. Jonathan I. Edelstein in Kew Gardens, NY "Who is wise? He who learns from all." - Ben Zoma, Pirkei Avot 4:1 Subject: Re: AH Challenge: Judiciary Branch Strongest Date: Wed, 03 Oct 2001 02:03:44 GMT From: "Doug Hoff" Organization: Prodigy Internet http://www.prodigy.com Newsgroups: soc.history.what-if References: 1 , 2 , 3 "Jonathan I. Edelstein" wrote in message news:9pbc8e0ou8@drn.newsguy.com... > On 1 October 2001, Randy Appleton wrote: > > [deletia] > > > Imagine a world where the list of rights is expanded by the supreme > > court. We have a right to medical care, education, safety, etc. > > Now imagine that the court system is forced to balance these rights > > one against another. "No. You may not spend that money on road > > repair until you have met your obligation to the school system." > > Such a system could produce LOTS of judicial interference in the > > political system. > > Taken to extremes, such a system could result in the judiciary, > rather than one of the political branches, being the arbiter of the > budget process. The court would announce the services that every > citizen had a right to expect from the government, take evidence > concerning the amount of money necessary to provide those services, > and then set the tax rate at the level necessary to raise the > required funds. There wouldn't be any legislative budget process - > presentation of evidence by advocates of various spending priorities > would take the place of political debate. This would also require an expansion of the concept of 'rights' beyond the conventional concept embodied in the US constitution. All are rights to be free from some governmental action, rather than a requirement that the government provide something. Even the right to appointed counsel in criminal cases is really a negative right - the right not to be tried for an offense without counsel. IIRC, something like you described happened in the case of the Kansas City school deseg case. The government pleaded poverty, and the court ordered it to come up with the money. -- __________ Doug www.althist.com Subject: Re: AH Challenge: Judiciary Branch Strongest Date: 1 Oct 2001 13:28:58 -0700 From: sarcastic_jew@yahoo.com (Ivan Hodes) Organization: http://groups.google.com/ Newsgroups: soc.history.what-if References: 1 Logan Ferree wrote in message news:<3BB7BC62.E6A63B3A@roanoke.infi.net>... > * The Judiciary's ability to rule certain laws unconstitutional > develops into a direct veto that the legislature cannot over-ride. > Instead of waiting for challenges to the laws, This is intriguing, but the trouble is, the judiciary is, well, a court. How would a judge ever be able to rule on the constitutionality of an issue if it wasn't before his court? And how could it get to his court if there wasn't a petitioner with standing? > * Building on an alternate result of 1793 or a similar incident, the > Supreme Court gives advisory opinions and not just deciding on specific > cases. European Courts But what about British courts? You have to remember that American law is descended from British common law (unless you're in, say, Louisiana). There are probably ways to make American law differ more substantially from common law, but it takes more than "Hey, this would be a neat idea." > * After trying people in absentia, the Judiciary branch develops a > Bounty Hunter like branch that works to track down people who have > already been tried and bring them to justice. I think they've had bounty hunters for a long time, but a more powerful version of the same is a neat idea. But does this really give power to the courts versus the other two branches, or simply increase governmental power as a whole? Ivan Hodes Subject: Re: AH Challenge: Judiciary Branch Strongest Date: Mon, 01 Oct 2001 20:59:56 GMT From: Alfred Hailey Organization: Excite@Home - The Leader in Broadband http://home.com/faster Newsgroups: soc.history.what-if References: 1 , 2 > > * The Judiciary's ability to rule certain laws unconstitutional > > develops into a direct veto that the legislature cannot over-ride. > > Instead of waiting for challenges to the laws, > > This is intriguing, but the trouble is, the judiciary is, well, a > court. How would a judge ever be able to rule on the > constitutionality of an issue if it wasn't before his court? And how > could it get to his court if there wasn't a petitioner with standing? Presumably a judge would have the authority to bring matters before himself of his own initiative, rather than waiting for someone else to. -- | Neutronium Dragon | Dragon Code: DC2.D* Gm L+++ W T+++! Phfwlt Sks | | neutroniumdragon@ | Cwh^ Bpl A+++! Fr+++ N^ M--- O/ H+++! $---! | | home.com | Fo--- R+ Ac+++ J+ S+ U! I-- V+++! Q--- Tc+ | |--------------------------------------------------------------------| | Quoth the necromancer: How dare you infringe upon my wights! | Subject: Re: AH Challenge: Judiciary Branch Strongest Date: 1 Oct 2001 14:45:34 -0700 From: Jonathan I. Edelstein Organization: Newsguy News Service [http://newsguy.com] Newsgroups: soc.history.what-if References: 1 , 2 On 1 October 2001, Ivan Hodes wrote: [deletia] >> * The Judiciary's ability to rule certain laws unconstitutional >> develops into a direct veto that the legislature cannot over-ride. This assumes, of course, that there will be a legislature. It's possible to imagine a government with two branches rather than three, where the judiciary is the _only_ source of law and where the executive is responsible for enforcement and management. >> Instead of waiting for challenges to the laws, > This is intriguing, but the trouble is, the judiciary is, well, > a court. How would a judge ever be able to rule on the > constitutionality of an issue if it wasn't before his court? "No party asked that it be heard. 'Sua sponte,' whispered a small black bird." [FN1] > And how could it get to his court if there wasn't a petitioner > with standing? By relaxing the rules of standing so that a petitioner could bring a case before the court without showing an injury in fact. The rules of the Hungarian Constitutional Court, for instance, allow cases to be submitted in any form by any citizen of Hungary, and the court once decided a major constitutional matter because a little old lady in Szeged mailed it a letter. The Hungarian court, BTW, is very nearly as powerful as what Mr. Ferree suggests, and IMO any similarly powerful court in the United States would have similar rules and organization. >> * Building on an alternate result of 1793 or a similar incident, >> the Supreme Court gives advisory opinions and not just deciding >> on specific cases. European Courts > But what about British courts? You have to remember that American > law is descended from British common law Advisory opinions are not foreign to the common law or even to the American legal system. A number of state constitutions, including some dating from the era of the Founders, explicitly allow them. A Federal constitutional provision allowing advisory opinions, or a Supreme Court interpretation of the "case or controversy" requirement to allow the same, wouldn't be all that implausible. [FN1] _In re Love_, 61 B.R. 558 (Bankr. S.D. Fla. 1986). Jonathan I. Edelstein in Kew Gardens, NY "Who is wise? He who learns from all." - Ben Zoma, Pirkei Avot 4:1 Subject: Re: AH Challenge: Judiciary Branch Strongest Date: Mon, 01 Oct 2001 22:36:06 GMT From: dtenner@ameritech.net (David Tenner) Organization: Prodigy Internet http://www.prodigy.com Newsgroups: soc.history.what-if References: 1 , 2 , 3 Jonathan I. Edelstein wrote in <9pao5u02ao4@drn.newsguy.com>: > >Advisory opinions are not foreign to the common law or even to the >American legal system. A number of state constitutions, including >some dating from the era of the Founders, explicitly allow them. >A Federal constitutional provision allowing advisory opinions, or >a Supreme Court interpretation of the "case or controversy" >requirement to allow the same, wouldn't be all that implausible. > I have something on that at http://groups.google.com/groups?hl=en&th=69af9be6c7718648 (though I still haven't gotten around to reading Stewart Jay's *Most Humble Servants*...) -- David Tenner dtenner@ameritech.net Subject: Re: AH Challenge: Judiciary Branch Strongest Date: Mon, 01 Oct 2001 19:14:04 -0400 From: Logan Ferree Organization: MindSpring Enterprises Newsgroups: soc.history.what-if References: 1 , 2 Ivan Hodes wrote: > Logan Ferree wrote in message news:<3BB7BC62.E6A63B3A@roanoke.infi.net>... > > > * The Judiciary's ability to rule certain laws unconstitutional > > develops into a direct veto that the legislature cannot over-ride. > > Instead of waiting for challenges to the laws, > > This is intriguing, but the trouble is, the judiciary is, well, a > court. How would a judge ever be able to rule on the > constitutionality of an issue if it wasn't before his court? And how > could it get to his court if there wasn't a petitioner with standing? By extending the courts power. If the court has the ability to interpret laws on if they are constitutional or not, why wait for someone to challenge the law. If the court sees clearly that the bill is going to be unconstitutional, they could intervene to veto its passage with an explanation of what it is unconstitutional. These are just ideas on how to expand the Court's power. I suppose you could have this worked into the Constitution, for one way of getting this to happen. > > * Building on an alternate result of 1793 or a similar incident, the > > Supreme Court gives advisory opinions and not just deciding on specific > > cases. European Courts > > But what about British courts? > You have to remember that American law is descended from British > common law (unless you're in, say, Louisiana). There are probably > ways to make American law differ more substantially from common law, > but it takes more than "Hey, this would be a neat idea." Actually I was under the impression that British courts do give advisory opinions, or what could be seen as them. I am not sure however if this developed after the Revolution. I note that out of this advisory opinion tradition, and the judicial review, could develop my first proposed idea of a veto over bills. To be blunt though, all it takes is a slightly alternate 1793, which has been mentioned before in this group, to have the tradition of advisory opinion established. > > * After trying people in absentia, the Judiciary branch develops a > > Bounty Hunter like branch that works to track down people who have > > already been tried and bring them to justice. > > I think they've had bounty hunters for a long time, but a more > powerful version of the same is a neat idea. But does this really > give power to the courts versus the other two branches, or simply > increase governmental power as a whole? The Bounty Hunters and the like I assume in this scenario would be under the Judicial Branch and not the other two. Overall perhaps it does increase government power, but it because it focuses on the Judicial Branch more than the other two it does at least create a stronger Judiciary. Perhaps if it pulled away some parts of law enforcement over time, the executive at least would be weakened. Logan Ferree Subject: Re: AH Challenge: Judiciary Branch Strongest Date: Mon, 01 Oct 2001 17:09:43 -0400 From: "Robert J. Kolker" Newsgroups: soc.history.what-if References: 1 Logan Ferree wrote: > Here's an curve ball challenge. Have the idea of separation of > powers between three branches develop as on OTL, but with the end result > being the Judiciary branch being the most powerful in most countries > that have separate branches of government. Each branch will have the > same duties and abilities as OTL, roughly, but somewhere in the > development of the early states such as the US, the Judiciary expands > its power faster than the others, and reigns supreme. Having the most powerful branch of government * unelected * is a sure fire recipe for tyranny. A thoroughly bad idea, not lost on the Founders. There is virtually no chance that such an outcome would be possible. The people of the former colonies just got through fighting a revolution against a nation ruled by unaccountable folk. It is not likely that it would immitate such a system. Bob Kolker Subject: Re: AH Challenge: Judiciary Branch Strongest Date: 1 Oct 2001 14:51:24 -0700 From: Jonathan I. Edelstein Organization: Newsguy News Service [http://newsguy.com] Newsgroups: soc.history.what-if References: 1 , 2 On 1 October 2001, Robert J. Kolker wrote: [deletia] > Having the most powerful branch of government * unelected * > is a sure fire recipe for tyranny. This doesn't seem to have happened in Hungary, although the Constitutional Court there is just about as powerful as what Mr. Ferree is suggesting. The Hungarian method of judicial selection, which ensures that all viewpoints are taken into account when picking judges (every party represented in Parliament, regardless of size, gets one vote) might account for the court's relatively benign use of its power. Jonathan I. Edelstein in Kew Gardens, NY "Who is wise?" He who learns from all." - Ben Zoma, Pirkei Avot 4:1 Subject: Re: AH Challenge: Judiciary Branch Strongest Date: Mon, 01 Oct 2001 18:24:34 -0400 From: "Robert J. Kolker" Newsgroups: soc.history.what-if References: 1 , 2 , 3 "Jonathan I. Edelstein" wrote: > On 1 October 2001, Robert J. Kolker wrote: > > [deletia] > > > Having the most powerful branch of government * unelected * > > is a sure fire recipe for tyranny. > > This doesn't seem to have happened in Hungary It might have worked for Hungary, but not for the anglo saxons. Making the judiciary top branch will produce repressive government. The problem is that judges are appointed for * life *. Unless there is some mechanism for removing stupid judges, only trouble can ensue. They had something like that in California and it was used to pry Judge Rose Bird loose from the bench. Now she lives in a cabin somewhere in the Sierra Mountains and talks to her dandelions. Bob Kolker Subject: Re: AH Challenge: Judiciary Branch Strongest Date: 1 Oct 2001 19:54:00 -0700 From: Jargon19abc@hotmail.com (Shawn) Organization: http://groups.google.com/ Newsgroups: soc.history.what-if References: 1 , 2 , 3 , 4 "Robert J. Kolker" wrote in message news:<3BB8ED22.E6FD72EA@mediaone.net>... > "Jonathan I. Edelstein" wrote: > > > On 1 October 2001, Robert J. Kolker wrote: > > > > [deletia] > > > > > Having the most powerful branch of government * unelected * > > > is a sure fire recipe for tyranny. > > > > This doesn't seem to have happened in Hungary > > It might have worked for Hungary, but not for the > anglo saxons. Making the judiciary top branch will > produce repressive government. The problem is > that judges are appointed for * life *. Unless there > is some mechanism for removing stupid judges, only > trouble can ensue. > > They had something like that in California and it was > used to pry Judge Rose Bird loose from the bench. > Now she lives in a cabin somewhere in the Sierra > Mountains and talks to her dandelions. > > Bob Kolker Federal judges are on the bench for life, resignation and impeachment are the only way off. State judges are either appointed or elected but must stand for retention elections every so many years. Rose Bird lost her retention election in 1986. From what I heard, she was extremely activist. Shawn Subject: Re: AH Challenge: Judiciary Branch Strongest Date: Mon, 01 Oct 2001 23:53:50 -0400 From: "Robert J. Kolker" Newsgroups: soc.history.what-if References: 1 , 2 , 3 , 4 , 5 Shawn wrote: > > Federal judges are on the bench for life, resignation and impeachment > are the only way off. State judges are either appointed or elected > but must stand for retention elections every so many years. Rose Bird > lost her retention election in 1986. From what I heard, she was > extremely activist. That she was. There never was a felon who appeared before The Bird, whom she did not pity. She let a lot of them go, poor fellows, victims of society. Now she is a recluse and she talks to the trees and the flowers. Which is too bad. If anyone deserved to be drawn and quartered it was The Bird. Bob Kolker Subject: Re: AH Challenge: Judiciary Branch Strongest Date: 2 Oct 2001 08:53:38 -0700 From: Jargon19abc@hotmail.com (Shawn) Organization: http://groups.google.com/ Newsgroups: soc.history.what-if References: 1 , 2 , 3 , 4 , 5 , 6 "Robert J. Kolker" wrote in message news:<3BB93A4E.1DD224A@mediaone.net>... > Shawn wrote: > > > > > Federal judges are on the bench for life, resignation and impeachment > > are the only way off. State judges are either appointed or elected > > but must stand for retention elections every so many years. Rose Bird > > lost her retention election in 1986. From what I heard, she was > > extremely activist. > > That she was. There never was a felon who appeared before The > Bird, whom she did not pity. She let a lot of them go, poor fellows, > victims of society. Now she is a recluse and she talks to the trees > and the flowers. Which is too bad. If anyone deserved to be drawn > and quartered it was The Bird. > > Bob Kolker Actually she died out of cancer in 1999, IIRC. Shawn Subject: Re: AH Challenge: Judiciary Branch Strongest Date: Tue, 02 Oct 2001 13:36:01 -0400 From: "Robert J. Kolker" Newsgroups: soc.history.what-if References: 1 , 2 , 3 , 4 , 5 , 6 , 7 Shawn wrote: > > Actually she died out of cancer in 1999, IIRC.\ Delighted to hear it. I hope she went Out in wracking pain. Bob Kolker Subject: Re: AH Challenge: Judiciary Branch Strongest Date: Mon, 01 Oct 2001 21:56:34 GMT From: "Doug Hoff" Organization: Prodigy Internet http://www.prodigy.com Newsgroups: soc.history.what-if References: 1 "Logan Ferree" wrote in message news:3BB7BC62.E6A63B3A@roanoke.infi.net... > Thoughts? An interesting question. In the Federal context, one has to deal with the fact that Congress & President controll the purse-strings and the composition of the Courts, both Supreme and inferior, as well as their jurisdiction. If the other branches think the Courts are getting too uppity, they can slap them down pretty good. (IMHO, the subtext of the self-imposed limitations on the courts is the knowledge that, if they overstep their bounds, they could be very effectively precluded from doing much of anything important). So, some tinkering with the Constitution would be needed to make the Courts self-funding and of fixed composition and jurisdiction _plus_ confidence in the courts would have to be so high from an early period that they become the paramount repostitory of the public's trust. Can anyone do a POD in which the courts, not the Continental Congress, take the lead in the AmRev? Preferably one with Patrick Henry at the bar or on the bench . . . . . -- __________ Doug www.althist.com Subject: Re: AH Challenge: Judiciary Branch Strongest Date: Mon, 01 Oct 2001 19:04:04 -0400 From: Logan Ferree Organization: MindSpring Enterprises Newsgroups: soc.history.what-if References: 1 , 2 Doug Hoff wrote: > So, some tinkering with the Constitution would be needed to make the Courts > self-funding and of fixed composition and jurisdiction _plus_ confidence in > the courts would have to be so high from an early period that they become > the paramount repostitory of the public's trust. Can anyone do a POD in > which the courts, not the Continental Congress, take the lead in the AmRev? There is, or perhaps was, in Vermont an interesting situation that I think might fit the bill. Assistant Judges are rather interesting in the history of Vermont. They are two lay citizens elected by the freemen who flank the regular lawyer judge and can 'correct' any rulings that they think would offend the common sense of the state of Vermont. Additionally, they have the executive power to maintain/administer the court house and hire assistant court clerks, and legislative power to levy a countywide property tax to finance the county's share of superior court expenses. Would something like that, the Court given the ability to levy a tax to support it and have some, if not all, of the Judges elected? This might need to have some changes in the development of government and the judiciary in Britain. Logan Ferree Subject: Re: AH Challenge: Judiciary Branch Strongest Date: Tue, 02 Oct 2001 21:32:52 GMT From: "Doug Hoff" Organization: Prodigy Internet http://www.prodigy.com Newsgroups: soc.history.what-if References: 1 , 2 , 3 "Logan Ferree" wrote in message news:3BB8F664.9EF6BB19@roanoke.infi.net... > Doug Hoff wrote: > > > So, some tinkering with the Constitution would be needed to make the Courts > > self-funding and of fixed composition and jurisdiction _plus_ confidence in > > the courts would have to be so high from an early period that they become > > the paramount repostitory of the public's trust. Can anyone do a POD in > > which the courts, not the Continental Congress, take the lead in the AmRev? > > There is, or perhaps was, in Vermont an interesting situation that I think > might fit the bill. Assistant Judges are rather interesting in the history of > Vermont. They are two lay citizens elected by the freemen who flank the > regular lawyer judge and can 'correct' any rulings that they think would offend > the common sense of the state of Vermont. Additionally, they have the > executive power to maintain/administer the court house and hire assistant court > clerks, and legislative power to levy a countywide property tax to finance the > county's share of superior court expenses. Would something like that, the > Court given the ability to levy a tax to support it and have some, if not all, > of the Judges elected? This might need to have some changes in the development > of government and the judiciary in Britain. That is interesting. I did not know that Vermont had this sort of tradition, which could certainly serve as a check on excessively legalistic rulings by the regular judges. Sounds like a good New England common-sense solution. I wonder how much administrative power circuit-level judges had in 18thC America? I have read snippets here and there that sherriffs were charged with collecting property taxes on behalf of the county, so it would make sense that judges would have similar powers. Undoubtably, we are dealing with a situation in which the administrative apparatus of the Colony/State was pretty primitive by todays standards. Suppose this: the British Parliament (in one of its numerous miscalculations) figures that its Stamp Act, Tea Act, etc, taxes will go down smoother if collected by locals. Thus, enforcement of these Acts falls upon the elected American judges. Said judges, faced with the situation, form a Committe of Correspondence to coordinate their response, although many are already nullifying the Acts. Numerous opinions are issued from benches all over the colonies that the Acts are invalid under British constitutional principles, including the Colonies' relationship to the Crown and Parliament [insert Colonial constitutional arguments here]. While the various legislatures dither, the judges are de facto, in the vanguard of the independance movement . . . . . -- __________ Doug www.althist.com Subject: Re: AH Challenge: Judiciary Branch Strongest Date: 1 Oct 2001 19:49:08 -0700 From: Jargon19abc@hotmail.com (Shawn) Organization: http://groups.google.com/ Newsgroups: soc.history.what-if References: 1 Logan Ferree wrote in message news:<3BB7BC62.E6A63B3A@roanoke.infi.net>... > Here's an curve ball challenge. Have the idea of separation of > powers between three branches develop as on OTL, but with the end result > being the Judiciary branch being the most powerful in most countries > that have separate branches of government. Each branch will have the > same duties and abilities as OTL, roughly, but somewhere in the > development of the early states such as the US, the Judiciary expands > its power faster than the others, and reigns supreme. Being American I > mostly am thinking of the United States, but having the Judiciary > supreme globally would be interesting to. Here are some thoughts: > * The Judiciary's ability to rule certain laws unconstitutional > develops into a direct veto that the legislature cannot over-ride. > Instead of waiting for challenges to the laws, the Judiciary branch has > the ability to strike down laws when they are passed. > * Building on an alternate result of 1793 or a similar incident, the > Supreme Court gives advisory opinions and not just deciding on specific > cases. European Courts usually do this, so this isn't that implausible > if applied to America. > * After trying people in absentia, the Judiciary branch develops a > Bounty Hunter like branch that works to track down people who have > already been tried and bring them to justice. > * Ideas about a social contract between the government and the > people are reinforced with Constitutions taking on the form of a > corporate contract more and more. The Judiciary is the branch that > decides in cases where the people believe there has been a breach of > contract, but don't really want to start a revolution just yet. > Thoughts? > > Logan Ferree Thank God, no. Unfortunately, there have been times that the judiciary has thrust itself in places where it shouldn't. This has happened from both liberal and conservative judges. I think the judiciary should defer to the other two branches whenever possible, and should not issue very broad rulings. For example, Roe v Wade, if the court found a problem with the law, it should strike the law down only, not come up with a broad principle when abortion restrictions are allowed and not. Mandating the trimester scheme was an abuse of judicial authority, but saying the Texas law was unconstitutionally vague, for instance might not be. Even Justice Ruth Bader Ginsberg, who is generally liberal, thought that Roe v. Wade went too far. Thanks, Shawn