> because we’re better in one or two or so ways, we can’t say that the bad things are comparable
The existence of an independent judiciary makes the two incomparable. The American executive is constrained in his actions by the law. That gives the landscape a degree of predictability (albeit less than I’d like).
Comparing this to China, where the law begins and ends with the party’s whims, is a slippery slope fallacy.
Make no mistake, the US judiciary is also fully captured by the two parties. Just because one person doesn't have total power means nothing, Xi Jinping doesn't have total power either.
But the the two US parties and sometimes even one party alone can totally make anything legal. The judiciary is independent only instantenaousely, not long term.
Mind you, this is because the US political system is not made to deal with parties. When you add a duopoly of power every single check and balance of the US political system breaks down.
> Just because one person doesn't have total power means nothing
Straw man. Power is always several amongst elites. The question is one of degree and checks. Xi’s China has no rule of law. In America, no person nor public servant is reliably above the law.
Moreover, rulers can be challenged in fair courts. The U.S. government loses in court. Xi never loses in a CCP court.
> When you add a duopoly of power every single check and balance of the US political system breaks down
Judges are not loyal to their parties. Almost every nominee has prominent cases where they rule against their party (e.g. Gorsuch on gay rights).
>Straw man. Power is always several amongst elites. The question is one of degree and checks. Xi’s China has no rule of law. In America, no person nor public servant is reliably above the law.
> Moreover, rulers can be challenged in fair courts. The U.S. government loses in court. Xi never loses in a CCP court.
>>>>>>>>>>>>one person doesn't have total power means nothing
>>>>>>>>>>Straw man
>>>>>>>>>>no person or public servant is reliably above the law
First, I don't think you can call my argument a straw man then restate the argument I was arguing in the very same sentence.
Second, Xi Jinping can easily lose in a CCP court, he just has to go against the will of the party members of the CCP enough. Xi Jinping is below the Politburo as well as the National People's Congress. He simply is kindly advised not to act in ways that would lead to his removal, just as other Chinese presidents often had their hands tied. He is not reliably above the law.
Also, the Department of Justice in the US de facto affirmed that the US president is above federal law.
> Moreover, rulers can be challenged in fair courts. The U.S. government loses in court. Xi never loses in a CCP court.
This absurd conflation. Xi <=!=> the US government. An apt comparison is to claim that the Chinese State never loses in court.
Now, to the core of the claim, the US State cannot lose in courts, because the US State is the courts.
More so, the US government can only ever, ever be sued with its agreement. Indeed, as Wikipedia puts it:
>In the United States, the federal government has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit.[7] The United States as a sovereign is immune from suit unless it unequivocally consents to being sued.[8] The United States Supreme Court in Price v. United States observed: "It is an axiom of our jurisprudence. The government is not liable to suit unless it consents thereto, and its liability in suit cannot be extended beyond the plain language of the statute authorizing it."[9]
In conclusion, the U.S. government only ever loses to a non-state entity in court when it consents to, and even then liability is severely restrained.
This is, ironically, exactly the same standard as in China. The Chinese Basic Law forbids the state from legal liability unless it specifically agrees to it and states it's liability, which is stated under the Administative Litigation Law : https://en.wikipedia.org/wiki/Administrative_law_in_China#Ad...
In practice, this means that you can sue the Chinese State, the CCP, Xi Jinping, or any other administrative body in China, and win, as long as the Chinese State agrees to the litigation. So, yes, Xi Jinping's government can, and does lose in Chinese courts (which technically are not affiliated with the CCP or any party, in theory). In fact, there have been many cases of such loses, which can be easily googled.
However, if the government ever loses, both in China and the US!, under the doctrine of Sovereign Immunity, they can simply change the law and absolve themselves of liability.
>Judges are not loyal to their parties. Almost every nominee has prominent cases where they rule against their party (e.g. Gorsuch on gay rights).
Cases of Federal judges ruling against their parties are few and far between, judges nominated by the same party vote together the vast majority of the time, especially Republican judges. As for the cases where they do, they almost always differ on points of heterogeneity in their party. Which you'd be surprised to hear, is also the case in China - there is massive heterogeneity within the party and judges sometimes go against the dominant position and are protected because are amongst a large faction.
In conclusion, there is still no real difference that can discerned.
> the Department of Justice in the US de facto affirmed that the US president is above federal law
Incorrect. DoJ have an administrative rule that a sitting President cannot be charged by them. As for official acts by the government, they’re subject to judicial review. No analogous process exists in China.
> the US State cannot lose in courts, because the US State is the courts
This betrays ignorance of the American Constitutional system. The U.S. government routinely loses in court. Prior rulings are overturned. The legislature is checked. The President stayed.
> under the doctrine of Sovereign Immunity
Sovereign immunity is a courtesy granted to other nations under common law. It does not exist per se and makes no sense to be invoked with respect to a state without the rule of law.
With respect to American courts, the U.S. government has broadly consented to being sued by virtue of the Constitution. To claim sovereign immunity, a creature of the law, limits the legal system is to misunderstand one of the basic tenets of the system.
Sovereign immunity is a courtesy granted to other nations under common law
Sovereign immunity is recognized in the US (and all Western countries). However, the gov't has intentionally waived that immunity in most circumstances.
>Incorrect. DoJ have an administrative rule that a sitting President cannot be charged by them. As for official acts by the government, they’re subject to judicial review. No analogous process exists in China.
Judicial review is simply enforcement of laws that are found to have primacy. Chinese retired officials have been charged, found guilty, and found liable hundreds of times. As for the analogous process of "judicial review" in China, it's called... Judicial Review. It has many flaws in practice due to partisanship of the judges, they are all also present in the US. The procedure for Chinese judicial review is codified under the Administrative Procedure Law I mentioned in my previous comment. The main difference is that Chinese judicial review applies only to acts and not to laws, because the Chinese constitution mandates primacy of the National People's Congress, therefore any power to strike laws would ironically enough be unconstitutional.
Moreover, former officials frequently get sued in China for crimes performed during their tenure.
>This betrays ignorance of the American Constitutional system. The U.S. government routinely loses in court. Prior rulings are overturned. The legislature is checked. The President stayed.
The legislative is checked, but not the State. I don't understand why you keep confusing the U.S. Government sometimes with the US legislative branch and sometimes with the US executive branch. Courts are part of the State. This should be evident after an analysis of the US Constitution, not just a cursory reading, and is indeed the interpretation taken by the Supreme Court as well as the basis for Sovereign immunity. See the last paragraph pf the next quotation of ever-helpful Wikipedia.
>Sovereign immunity is a courtesy granted to other nations under common law. It does not exist per se
Incorrect :
In the United States, the federal government has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit.[7] The United States as a sovereign is immune from suit unless it unequivocally consents to being sued.[8] The United States Supreme Court in Price v. United States observed: "It is an axiom of our jurisprudence. The government is not liable to suit unless it consents thereto, and its liability in suit cannot be extended beyond the plain language of the statute authorizing it."[9]
The principle was not mentioned in the original United States Constitution. The courts have recognized it both as a principle that was inherited from English common law, and as a practical, logical inference (that the government cannot be compelled by the courts because it is the power of the government that creates the courts in the first place).[10]
You seem to be confusing Sovereign Immunity, which only applies to the Federal and Local governments of the United States, with State Immunity, which is much weaker than Sovereign Immunity : https://en.wikipedia.org/wiki/State_immunity
> makes no sense to be invoked with respect to a state without the rule of law
This is a circular argument as it the conclusion is also a premise.
>With respect to American courts, the U.S. government has broadly consented to being sued by virtue of the Constitution. To claim sovereign immunity, a creature of the law, limits the legal system is to misunderstand one of the basic tenets of the system.
> the Chinese constitution mandates primacy of the National People's Congress, therefore any power to strike laws would ironically enough be unconstitutional
This is the core difference. No single body can exercise the U.S. state’s power with such primacy.
There are a lot of other errors in this comment, but your sources should are good and are worth reading together with their references.
> A ratifying convention of the states has the power to amend the US constitution.
No, it does not. Article V allows two-thirds of the state to call for a convention of the states to be assembled to propose amendments; three-fourths of the state legislatures, or three-fourths of state conventions assembled for the purpose, must ratify any proposals made.
So in the current setup, 67 legislative bodies are required to call for the assembly of a single body that can write up amendment proposals, but then 75 legislative bodies (or 75 conventions) then have to vote to ratify those proposals.
That is a far cry from a single body ratifying amendments.
The full text of Article V, for reference (emphasis mine):
> The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
> Second, Xi Jinping can easily lose in a CCP court, he just has to go against the will of the party members of the CCP enough. Xi Jinping is below the Politburo as well as the National People's Congress. He simply is kindly advised not to act in ways that would lead to his removal, just as other Chinese presidents often had their hands tied. He is not reliably above the law.
Xi can certainly lose power, but the actions that would cause this lack much relationship to the stuff written down in books labeled "Chinese Law". Xi's power is a bit less absolute than a traditional dictator's (and that dictator still answers to the will of the military, of the business elites, of the citizens overall, or of anyone else who with sufficient motivation might assemble a coup), but not by much and with similar form.
The limits on Xi's power are primarily from that informal consensus of people capable of directing and exercising hard power, not any expectation that those people will behave according to their best, good-faith interpretation of written law. That written law always has ambiguities, and the need for judges to resolve those ambiguities creates a political element in any judicial system; but if you think the extent of that political influence is in any way comparable between the USA and PRC, then you're simply mistaken.
What is your experience with China and the USA? Have you dealt practically with either legal system, or business at a level that involves political considerations? I've seen lots of people develop views like yours based on stuff they've read on the Internet, but I've never seen such views survive actual contact with the respective systems.
He probably doesn't, but the CCP does. One entity having the ultimate powers, just like the Supreme leader of Iran, makes them incomparable to the US where Congress/Judiciary can take actions against the President.
My argument is that the judiciary has instantaneous independence but not real independence.
If the DNC and the RNC decided that they really wanted it to be passed, they have to power to solely elect judges to the Supreme Court which would uphold it.
If your standard is that a single act of minor importance refused by the judiciary is enough to mean indépendance of judiciary, an equal application of the standard results in the conclusion that the Chinese judiciary and judicial review process is independent. Which is a conclusion I disagree with, not only because I disagree with the standard.
If the DNC and the RNC decided that they really wanted it to be passed, they have to power to solely elect judges to the Supreme Court which would uphold it.
Considering most judicial positions (with some exceptions where they are locally elected) are life time positions, yes, theoretically the gov't could nominate judges that are aligned with their view, that would be almost impossible to execute.
In addition, they are nominated by the party in power, but need to be approved by a committee comprised of both parties.
Whether it's independence in some cosmic sense doesn't seem like a tremendously interesting question. (Is anyone independent from anything on a scale of decades?)
> If the DNC and the RNC decided that they really wanted it to be passed, they have to power to solely elect judges to the Supreme Court which would uphold it.
That's a bit of a stretch. First off, SCOTUS justices are appointed (through a nomination and confirmation process), not elected.
In order for either the DNC or RNC, or both of them surprisingly working together, to pull this off, it'd wouldn't be trivial. Let's assume for a moment the "easy" case: out of 9 justices, 4 of them are in favor of this thing, 5 against. The DNC+RNC then have to get one of those 5 justices to retire, or they have to get lucky, and one of them dies. Then they have to get that appointee to the president. Next we have to assume that the president agrees with this thing they want. If so, cool, the president makes the nomination. Then it goes to the Senate. Does the DNC+RNC have 51 senators that agree? Ok, cool, justice gets confirmed.
Issue goes to court, makes its way up to SCOTUS, and the ruling is 5-4 in favor of whatever the DNC+RNC wants... unless someone has changed their mind and switched sides during all this. I feel like that's already happened! If you believe that the RNC alone has managed to get Gorsuch and Kavanaugh on the court in order to do nefarious things, they've largely failed. Both justices have been reasonably moderate (so far, at least), when compared to what Trump and McConnell wanted.
Now, this isn't a completely implausible scenario. I'll grant you that, certainly. But: if the DNC+RNC really want something this much, then they presumably have the support of a bunch of constituents and, critically, state legislatures. It would seem to maybe be a better idea to go for a constitutional amendment. In reality, I'd say that's crazy; the three-fourths of the states agreeing on something of constitutional importance is pretty unlikely. But if we're in this bizarro world where the DNC and RNC agree that something unconstitutional really needs to get passed, this is probably a better path to take than trying to engineer some light judicial subversion.
So while I think your hypothetical is an interesting thought experiment, it's not really important in practice. SCOTUS is independent in the ways that actually matter. If there's bi-partisan support among government and citizens for something, it probably should be law. Yes, there's the possibility that this hypothetical unconstitutional thing they want to make into law is tyranny of the majority of the worst sort. But at the end of the day you can only make the system so robust, and I think our system is decently ok in that regard, the past 3.5 years notwithstanding.
I never said that the judiciary was controlled by the president, I said it was controlled by the parties through nomination. If you have control over the parties for long enough, you get total control over the judiciary. Therefore, the judiciaries are not truly independent.
In the same way, Xi Jinping doesn't have total control over China - the National People's Congress has the authority to remove the President at any time. But because the CCP is by far the most popular party in China, the party is truly in charge, and the checks and balances do not really work.
Both China and the US, are in theory democracies with an unlimited amount of parties and separation of power! And actually, 20% of congressional representatives in China are independent. But in practice, it's mathematically unlikely that another party would achieve a majority. In the US, too, it's mathematically unlikely that either of the two parties get replaced by a third party.
So in China, to have effective absolute power, you need to control the CCP and discourage people from running as independents. In the US, to have effective absolute power, you need to control both the DNC and the RNC, and independents naturally cannot win. So in both cases, separation of power is theoretic.
But, in practice, the US has more diversity between the two parties, while in China there is more diversity inside one party. In both cases, the judiciary, executive and legislative are indirectly dependent because they are all dependent on the same parties.
Therefore, the judiciaries are not truly independent.
That's like saying that, because you were brought up by your parents, you will always behave exactly as they wanted you to, removing all agency. SCOTUS justices' decisions, against what their proponents desired, prove they work independently. They can be flawed, but that's why there's more than one.
the CCP is by far the most popular party in China
The CCP is the only party in china.
Both China and the US, are in theory democracies
No, they're not. And I'm not nit picking with the US is a Republic. It's that is a joke to even attempt to place China at the same level.
So in China, to have effective absolute power, you need to control the CCP and discourage people from running as independents. In the US, to have effective absolute power, you need to control both the DNC and the RNC, and independents naturally cannot win. So in both cases, separation of power is theoretic.
I don't even know where to start with this one. The CCP controls China. Maybe not down to the most local level, but almost. Nor in their wettest dreams the DNC/RNC would ever achieve the level of control and oppression the CCP has. And I'm pretty sure many on both sides wouldn't even allow it.
the judiciary, executive and legislative are indirectly dependent because they are all dependent on the same parties.
And back to square one. No. By a million miles. Not even close. With all its flaws, the US judiciary, and its Rule of Law, are orders of magnitude above the Chinese, if we can even start comparing apples to oranges.
>That's like saying that, because you were brought up by your parents, you will always behave exactly as they wanted you to, removing all agency. SCOTUS justices' decisions, against what their proponents desired, prove they work independently. They can be flawed, but that's why there's more than one.
If your parents could swap your identity out for any of their choosing every decade or so, I would make the case, yes.
>SCOTUS justices' decisions, against what their proponents desired, prove they work independently. They can be flawed, but that's why there's more than one.
They rarely do, and party affiliation is by far the strongest predictor of voting. And even when they do vote against their proponents, they do so in points of ideological heterogeneity. In any case, there are also times when Chinese judges vote against the dominant will of the CCP, it is just quite rare, and is among points of ideological heterogeneity.
>The CCP is the only party in china.
Only in practice. There are multiple registered parties in China you can vote for, though the vast majority are under CCP control. About 20% of the congressional seats are held by independents, not members of the CCP nor any other party.
>No, they're not. And I'm not nit picking with the US is a Republic. It's that is a joke to even attempt to place China at the same level.
This is completely besides the point. China, in theory, is a democracy. In that, there are elections every so often, and you can run as a representative, and then vote for the president. So far, there have not been any reports of violation of electoral process. This is because the Chinese electoral system is flawed to confer massive amounts of power to the incumbent. In the same way, the US electoral system is flawed in that it completely destroys any power outside the two parties. Analysis of US political decisions show that popular will has a very slim influence on policy : https://scholar.princeton.edu/sites/default/files/mgilens/fi....
>I don't even know where to start with this one. The CCP controls China. Maybe not down to the most local level, but almost. Nor in their wettest dreams the DNC/RNC would ever achieve the level of control and oppression the CCP has. And I'm pretty sure many on both sides wouldn't even allow it.
Good thesis, now let's try to prove it, shall we? If this was true, it should be possible for you to give me recent (last 100 years) examples of major decisions that were outside the control of both the DNC and RNC in both process and outcome.
>And back to square one. No. By a million miles. Not even close. With all its flaws, the US judiciary, and its Rule of Law, are orders of magnitude above the Chinese, if we can even start comparing apples to oranges.
Please evaluate claims on their merits. Are the judiciary, executive and legislative branches not dependent on the aggregate of the DNC and RNC, directly or indirectly?
> Are the judiciary, executive and legislative branches not dependent on the aggregate of the DNC and RNC, directly or indirectly?
Yeah, but so what? That reduces to approximately "the judiciary, executive, and legislative branches are dependent on the aggregate of the American people"... which is exactly how it should be.
Yes, I know that there are other minor parties, and I know that there are many, many people in the US who do not identify as Democrat or Republican (I'm one of them, even though I will generally only vote Democrat in national races). But it is true that the two major parties, when put together, represent the political desires of the vast majority of voters, to whatever order of approximation is realistically possible.
The Chinese government, on the contrary, is controlled by the CCP, which is controlled by party leadership, which does not take any meaningful input from those who are not party leadership, inasmuch as the military and law enforcement apparatus supports them. You know, like any other authoritarian dictatorship.
> Please evaluate claims on their merits. Are the judiciary, executive and legislative branches not dependent on the aggregate of the DNC and RNC, directly or indirectly?
The structure of the US government naturally creates a two-party system; but the reason why those two parties are the Democrats and Republicans (and not the Whigs and Libertarians or whatever) is that those two parties outcompeted all the others for votes. Minor parties are constantly trying to break through. They usually fail, though not always--we don't have Whigs anymore. But even when they fail, the major parties are constantly watching for this threat, and adjusting their positions in an effort to keep their dominance. The dominance of the DNC and RNC doesn't mean the people who control those two parties can do whatever they want; it just means those people want to keep their jobs, know the only way to do so is to behave in a way that wins elections, and are pretty good at figuring out what those behaviors are.
That's probably not the best imaginable way to translate the will of the people into a government, but the path is clearly there. No remotely comparable path exists in the PRC.
Finally, I believe you've misunderstood the paper you linked. Quoting:
> As noted, our evidence does not indicate that in U.S. policy making the average citizen always loses out. Since the preferences of ordinary citizens tend to be positively correlated with the preferences of economic elites, ordinary citizens often win the policies they want, even if they are more or less coincidental beneficiaries rather than causes of the victory.
In other words, let's say the elites want A, B, C, and D, and the average citizens want A, B, C, and not D. We actually get A, B, C, and D. Then the will of the elites has perfect explanatory power (which they've described using the word "cause", though obviously nothing here shows causality), and the will of the average citizens contributes no further information; but the average citizens are still getting most of what they want. It can't be otherwise, or else the average citizens would vote a third party in. That doesn't need to actually happen to affect policy--if the current major parties are run by skilled politicians who want to keep their dominance, then the threat is enough.
At the margin, I do agree the two-party system gives the two incumbents considerable independent power--there's a coordination problem in choosing what third party to vote for, so an incumbent has to diverge significantly from the will of the people to lose. This is in no way comparable to the absolute power that the CCP enjoys over China, though.
It's not diversity of differences that matters but rather the magnitude of those differences. Being different in one substantive way is infinitely better than being different in a myriad of little ways.
