We see in representative democracies how the constitutional court decides if this or that law is constitutional, such courts also “make new laws” in some of their decisions.
This should not happen in a democracy. In other representative democracies the supreme court, such as the US the Supreme Court, has those powers.
Through their decisions, such courts change health policies, labour laws, welfare benefits, marriage laws, abortion laws, etc.; they “legislate”.
That should not happen because it is not democratic. In a real democracy, only the voters should make such decisions.
In Switzerland’s direct democracy, they do that. It is not possible for the Swiss Supreme Court to create new laws with its decisions. Furthermore, the Swiss Supreme Court, under the Swiss Constitution, can not review any Swiss federal law to decide if the law is “constitutional”. Neither can it decide on issues such as abortion.
Greek democrats 2500 years ago made the point for all of us; ordinary people with common sense make the laws and decide on the laws; no god or gods, holy books, “special leaders”, kings, priests, aristocrats, “wise men”, the rich, the academics, the pundits, the intellectuals, or the judges, should make such decisions.
Let me give you an example of how they do it in Switzerland.
On June 2nd, 2002, the Swiss decided in a national referendum to make it easier for women to have an abortion. The Swiss Supreme Court, or the elected politicians did not decide, the voters did.
The option to make abortion more readily available won; 72% of the voters supported it. The same voters rejected the alternative proposition to ban abortion; 82% voted against.
Those who lost can argue abortion is immoral, but they have to accept the decision because it comes from the majority. It does not come from polls or from what the politicians believe is “right”, or from the judges.
The people who lost the argument know the only way to win next time is to work hard to persuade the Swiss people to vote again and to vote differently; no riots, no demonstrations, just arguments.
In contrast, in the US, many citizens fear now a conservative Supreme Court could reverse the decision to legalize abortion. If that happens, there will be riots.
In the UK and the Netherlands, they are wiser than in the US; they do not give that kind of power to their supreme courts. In those countries, the legislative power is the ultimate authority. This is better than having the judges decide, but it is even better if the people are the supreme authority.
There are other positive effects of direct democracy. Because Switzerland’s Supreme Court has no political power, politicians in Switzerland do not fight over Supreme Court nominations the way US politicians do.
In other representative democracies with Constitutional Courts, things are not much better than in the US because such courts are also politicized and have power similar to the US Supreme Court.
In Switzerland, they politicize the Swiss Supreme Court because the political parties appoint the judges. It would be better if the people elected the Swiss Supreme Court Judges. However, the situation does not create political problems for democracy because the Court has no political power to decide on the constitutionality of laws or to make decisions equivalent to new legislation.
All democracies should have, at least, the Swiss system of a Supreme Court that can not decide on national laws or make “landmark” social and political decisions.
If you believe the Supreme Court, or the Constitutional Court, in your democratic country has too much power, do something about it.
