April 27, 2005

Law, Tradition and Government: America versus Britain

The Democratic filibusters of judicial nominees go against 200-some years of Senate practice, precedent and tradition that saw such a practice shunned and apparently never practiced. Even when Eisenhower judicial appointments starting enforcing civil rights protections in the Jim Crow South, there were not (from any evidence I've seen) judicial filibusters.

This was a strong tradition, but it was not a law. If anything, the written rules seem to allow the filibuster pretty clearly. There's always been some grousing about whether the filibuster is constitutional - almost always from the side holding the majority - but it's clearly in the Senate rules.

The Democrats can't be accused of breaking the law, only of breaking tradition. That's definitely something that can carry weight in this country, since you won't see these popular phrases anywhere in the Constitution: judicial independence, checks and balances, balance of powers, separation of church and state. These are traditions supported by the law and they communicate the intent behind our laws, but these concepts are not themselves found written in law.

Tradition is a poor substitute for simply putting something down on paper. We are a nation of laws, of dynamism, and of innovation. We love new things, new inventions, new prosperity, expansion and energy. We tire of old people, old methods and old ways unless they provide a common sense benefit to us (and even sometimes we tire of them despite what they provide).

In this land of dynamism with a government based on laws, we should not be surprised when tradition puts up a poor defense. If we want to protect something with the force of law, we can't use tradition as a suitable proxy. Codification is the name of the game, because any decent lawyer will tell you he prefers going into court with a citation to support his argument, rather than just a well-known concept.

The English system is heavily undergirded by tradition, custom and practice. Burkean to the core, they don't even have a written constitution. In fact, Britain is the poster child for a more classically liberal code of laws, since their legal system has been so shrouded in confusing and little-known laws that it's often difficult to know just what is and isn't the law. They don't centralize their laws and they don't have a founding document as such that contains the provisions of what the Parliament may and may not do. In fact, the Parliament can pretty much do whatever it wants, because they don't have a Supreme Court to strike their laws down (though they do have judicial review of a sort) and the royalty is not going to do anything substantive these days. The only thing preventing them from doing just whatever they want is tradition and political constraints.

They value certain traditions and so they don't overrule them. If political winds shoudl shift, however, it would be supremely easy for the majority party in Parliament to do... well, anything.

This mass of traditions serves the English well in part because they respect tradition for its own sake. In America, we have some of that English reverence for tradition, but we have a strong preference given to innovation, creativity and the natural progression of ideas. We expect cars, televisions, houses and clothing to be different and improve over time - and we have a subtle but persistent expectation that governance will also continue to improve over time.

We are a country of laws. Asking tradition to stand up against statute in an environment where law is almost always preferred is a heavy task.

If we want practices and customs to become de facto rules, then we ought to make them de jure rules. It's that simple.

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