The government manifesto (attached) on changing the reach of courts is in the press again (h/t @AndrewSparrow ). But some things seem off, so a thread with some clarifications. (Thread) 
@AndrewSparrow Robert Buckland, in a statement, said this
@AndrewSparrow The problem of courts resolving many issues (because we drop them on the courts), is a real one, but the conceptualisation is problematic, as is the way the US is presented. Let’s start off...
@AndrewSparrow 1) The US does not have a constitutional court. It has a supreme court. Germany and France have a constitutional court. What’s the difference? A constitutional court is dedicated to matters of constitutional law. The US Supreme Court is not. How does that work?
@AndrewSparrow The US has a system of “diffuse“ constitutional review. Every court is entitled, nay tasked to review the constitutionality of laws. That’s the heritage of that most famous US case Marbury v. Madison. That’s different from a constitutional court model - take Germany
@AndrewSparrow In Germany if a judge thinks a law is not constitutional that judge stays the proceeding and passes the question of its constitutionality on to the Constitutional Court. ONLY the Constitutional Court can review the law for its constitutionality.
@AndrewSparrow Let’s move on to “courts get involved in politics”. This raises an important question: what is the separating line of law and politics? I maintain that this line is difficult to fine. Take the US. In theory, courts stay out of politics under the “political question doctrine”
@AndrewSparrow Political questions are, in theory, not justiciable (Baker v. Carr). How do you know that it’s a political question? E.g. a lack of judicial standards or, my favourite, if the constitution commits the question to another branch of government. The problem?
@AndrewSparrow The US constitution does not really do that sort of thing. And if you think about it: what ARE the questions that a court should stay out of? What is a political question?
@AndrewSparrow The UK system has chosen that legislative acts are not reviewable. That is, if you want, an institutional answer to that question. It seems to me that going beyond that would create far more problems than it would resolve.
@AndrewSparrow (Yup, we can discuss some details, of course)
