An "irreconcilable variance" standard for striking down laws in the U.S.

CaliGuy

Banned
In Federalist Paper No. 78, Alexander Hamilton envisioned the courts only striking down laws which are at an "irreconcilable variance" with the U.S. Constitution.

What would have happened had Hamilton's view on this issue become the law of the land (as in, if this "irreconcilable variance" standard would have been put either into a federal statute or into the U.S. Constitution)?

As for my own thoughts on this (and assuming that the courts would have genuinely been willing to follow this rule), here goes:

-The rise of the Republican Party might be delayed a bit due to the fact that there will be no atrocious Dred Scott ruling in this TL.
-Desegregation and integration would begin much earlier in this TL since the 1875 Civil Rights Act will survive here. Also, desegregation and integration will be exclusively Congress's--rather than the courts'--job in this TL.
-The courts would be less politicized in general as controversial issues such as abortion, same-sex marriage, euthanasia, campaign finance reform, et cetera will be exclusively fought over in the political sphere.

Anyway, what exactly am I missing here?
 

CaliGuy

Banned
Would you mind laying out exactly what that means, and how it compares to OTL doctrine?
An "irreconcilable variance" standard means that if a law/statute and the U.S. Constitution can be reconciled, then they should be reconciled (as opposed to having this law/statute be struck down as being unconstitutional).

In contrast, right now, judges can declare a law/statute to be unconstitutional even if it is possible to reconcile this law/statute with the U.S. Constitution. For instance, abortion bans have been struck down by the courts even though abortion bans can certainly be reconciled with the U.S. Constitution; after all, the 14th Amendment can be reasonably interpreted as not creating a fundamental right to abortion.
 
Taney clearly had an axe to grind against abolitionism; he'll find some way to create a sweeping pro-slavery precedent even with a looser standard.
 

CaliGuy

Banned
Taney clearly had an axe to grind against abolitionism; he'll find some way to create a sweeping pro-slavery precedent even with a looser standard.
If so, then there would probably be an attempt to impeach him afterwards. Indeed, even if this impeachment attempt would have failed, the U.S. Civil War and its aftermath would have very likely restored the "irreconcilable variance" standard--with Taney's ruling being perceived as an aberration which should never be repeated.
 
The "verfassungskonforme Auslegung" (constitutional interpretation) is an accepted interpretation used by the German Federal Constitutional Court. If there are different possibilites to interpret a law, the verfassungskonforme Auslegung recommends to chose the constitutional interpretation, thus to reconcile a law with th constitution.

For instance, abortion bans have been struck down by the courts even though abortion bans can certainly be reconciled with the U.S. Constitution; after all, the 14th Amendment can be reasonably interpreted as not creating a fundamental right to abortion

I didn't study American law, but I think you made a mistake here. I think the SCOTUS would reconcile abortion bans with the constitution if both could be reconciled. It's not a question of Statutory interpretation, but of interpretation the constitution.

The SCOTUS ruled in Roe v. Wade that there is a right to privacy provided by the 14th amendment. And when you accepted a right to privacy, it's impossible to reconcile a law violating this right with the constitution.

Meanwhile, if they can't reconcile, then and only then do they declare a law/statute to be unconstitutional.

That's why they declared so many abortion laws inconstitutional. These laws violated the right to privacy and were thus insconstitutional.
 

Skallagrim

Banned
...does it exclusively mean that they "can only strike down laws that clash with the constitution" (as opposed to also striking down ones that don't have to clash)... or does it also mean that the courts must strike down all laws that clash with the constitution?

Because if it's the latter, and there's still a tenth amendment just like the OTL one, Hamilton has shot himself in the foot by turning this ATL into a total states' rights wank. Which would be highly ironic and therefore amusing, of course.
 

CaliGuy

Banned
The "verfassungskonforme Auslegung" (constitutional interpretation) is an accepted interpretation used by the German Federal Constitutional Court. If there are different possibilites to interpret a law, the verfassungskonforme Auslegung recommends to chose the constitutional interpretation, thus to reconcile a law with th constitution.



I didn't study American law, but I think you made a mistake here. I think the SCOTUS would reconcile abortion bans with the constitution if both could be reconciled. It's not a question of Statutory interpretation, but of interpretation the constitution.

The SCOTUS ruled in Roe v. Wade that there is a right to privacy provided by the 14th amendment. And when you accepted a right to privacy, it's impossible to reconcile a law violating this right with the constitution.



That's why they declared so many abortion laws inconstitutional. These laws violated the right to privacy and were thus insconstitutional.
The thing is, though, that one can reasonably read the 14th Amendment not to include a right to privacy. After all, the authors and ratifiers of the 14th Amendment didn't believe that the 14th Amendment included a right to privacy.
 

CaliGuy

Banned
...does it exclusively mean that they "can only strike down laws that clash with the constitution" (as opposed to also striking down ones that don't have to clash)...

Yes.

or does it also mean that the courts must strike down all laws that clash with the constitution?

If there's no reasonable way to reconcile a law with the U.S. Constitution and courts are asked to rule on the constitutionality on this law, then Yes, courts would have to strike down this law.

Because if it's the latter, and there's still a tenth amendment just like the OTL one, Hamilton has shot himself in the foot by turning this ATL into a total states' rights wank. Which would be highly ironic and therefore amusing, of course.

Can you please elaborate on this part?
 

CaliGuy

Banned
How do they reconcile?
By adopting a reasonable reading of the U.S. Constitution that doesn't conflict with the law that they are reviewing. For instance, in Roe v. Wade, that would mean adopting a reading of the 14th Amendment that doesn't include a right to privacy/right to abortion.
 

Skallagrim

Banned
Can you please elaborate on this part?

The tenth amendment entails that any power not delegated by the constitution to the federal government is reserved to the states, or (in case a state doesn't legislate) to individuall people. Obviously, in OTL, since there is no legal provision such as the one you suggest, the tenth amendment just gets ignored... a lot. I'd say the vast, vast majority of what the federal government does in modern times involves powers that are not actually delegated to the federal government by the constitution. So I imagine a lot of OTL laws - specifically those granting powers to Washington - would in this AL have to be struck down (or altered) based on the fact that they simply cannot be reconciled with the tenth amendment.

Now, if this kind of provision just means the courts can strike down irreconcilable laws, the whole problem gets avoided. But if it means the courts have to strike down any law that conflicts with the constitution... well, that means that lots and lots of laws passed in OTL will be scrapped in this ATL, because they all clash with the tenth amendment. Hamilton would absolutely hate that outcome of his proposal, since he didn't really want the bill of rights to be passed in the first place (he considered it superfluous), and he wanted the federal government to be less limited, not more constrained. Hence the fact that it turning out like that would be very ironic.
 
By adopting a reasonable reading of the U.S. Constitution that doesn't conflict with the law that they are reviewing. For instance, in Roe v. Wade, that would mean adopting a reading of the 14th Amendment that doesn't include a right to privacy/right to abortion.

So, they're making the Constitution fit the law, rather than the other way around?
 
Taney clearly had an axe to grind against abolitionism; he'll find some way to create a sweeping pro-slavery precedent even with a looser standard.

I agree with this. Even with such a standard, there will be judges who ignore the irreconcilable variance to uphold a law, or make up an irreconcilable variance to strike down a law.

You can't get any more blatant than civil asset forfeiture in terms of a law being at odds with the Constitution, but we have both it and other shameful rulings like Kaley and Korematsu. Meanwhile, irreconcilable variance would legitimize rulings like Buck v Bell. We're safer if we restrict government.
 

CaliGuy

Banned
So, they're making the Constitution fit the law, rather than the other way around?
If there's a reasonable way to make the Constitution fit the law, then Yes.

Basically, this type of system would be one where there is massive deference to legislative bodies. Thus, while the courts would be unable to make a ruling such as Brown v. Board of Education in this TL, Congress would be able to pass a law which desegregates schools nationwide and the courts would have to uphold this law since this law can reasonably be reconciled with the 14th Amendment.
 

CaliGuy

Banned
The tenth amendment entails that any power not delegated by the constitution to the federal government is reserved to the states, or (in case a state doesn't legislate) to individuall people. Obviously, in OTL, since there is no legal provision such as the one you suggest, the tenth amendment just gets ignored... a lot. I'd say the vast, vast majority of what the federal government does in modern times involves powers that are not actually delegated to the federal government by the constitution. So I imagine a lot of OTL laws - specifically those granting powers to Washington - would in this AL have to be struck down (or altered) based on the fact that they simply cannot be reconciled with the tenth amendment.

Now, if this kind of provision just means the courts can strike down irreconcilable laws, the whole problem gets avoided. But if it means the courts have to strike down any law that conflicts with the constitution... well, that means that lots and lots of laws passed in OTL will be scrapped in this ATL, because they all clash with the tenth amendment. Hamilton would absolutely hate that outcome of his proposal, since he didn't really want the bill of rights to be passed in the first place (he considered it superfluous), and he wanted the federal government to be less limited, not more constrained. Hence the fact that it turning out like that would be very ironic.
Out of curiosity--how exactly do the courts reconcile the Tenth Amendment and things such as Social Security in our TL?
 
If there's a reasonable way to make the Constitution fit the law, then Yes.

Basically, this type of system would be one where there is massive deference to legislative bodies. Thus, while the courts would be unable to make a ruling such as Brown v. Board of Education in this TL, Congress would be able to pass a law which desegregates schools nationwide and the courts would have to uphold this law since this law can reasonably be reconciled with the 14th Amendment.

I'd say that this would weaken the Court too much.
 
It's not the SCOTUS' job to "reconcile" anything. They are supposed to be determining whether or not the case (or law) before them is valid or in violation of the constitution of the USA. Legislators 'reconcile' laws/bills, etc.
 
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