united-states constitutional-law us-constitution us-supreme-court comparative-law
Why is the US Constitution so open to interpretation compared to constitutions of European countries?
<p>Why is the US Constitution so open to interpretation compared to constitutions of European countries? Supreme Court justices are de-facto unelected policymakers in the US, whereas in western European countries typically the composition of respective judicial bodies, whether they hold &quot;conservative&quot; or &quot;progressive&quot; personal opinions don't influence the state of affairs much. Why is it so? Is it because the US Constitution generally older and is written in an old-fashioned, more linguistically obscure fashion? Is it because of the filibustered gridlock in the legislature so it's the only way the Americans can change anything on the federal level (they can't pass laws so they pass judicial precedents instead with the help of general elections and presidentially appointed opinionated judges)?</p>

<p>There are several reasons. But a major one is the difference between the <a href="https://en.wikipedia.org/wiki/Civil_law_(legal_system)" rel="nofollow noreferrer">civil-law</a> and <a href="https://en.wikipedia.org/wiki/Common_law" rel="nofollow noreferrer">common-law</a> legal systems. Most European legal systems are civil-law systems, and were significantly influenced by the Napoleonic Code. In this tradition, laws, including constitutions, tend to spell out rights, obligations, and procedures in relatively precise detail, and there is mush less need for or tolerance of judicial interpretation.</p>
<p>The European civil law system, at least in its modern form, arose long after the common-law system. It is a historical accident, or rather the result of a good many historical accidents, that the common-law system arose and was maintained in England, and then spread to the UK, North America, Australia, and other places where the British Empire ruled or had influence, while the modern civil-law system arose particularly in France and influenced systems throughout Europe.</p>
<p>The French Revolution swept away most of the legal legacies of the medieval system, and particularly of social privilege of law in France. Napoleon, building on this, created a detailed and systematized set of laws, the <a href="https://en.wikipedia.org/wiki/Napoleonic_Code" rel="nofollow noreferrer"><em>Code Napoléon</em> or Napoleonic Code</a>. This was imposed on much of Europe under the <a href="https://en.wikipedia.org/wiki/First_French_Empire" rel="nofollow noreferrer">French Empire</a>. As the Wikipedia article says of the Code:</p>
<blockquote>
<p>The Code, with its <strong>stress on clearly written and accessible law</strong>, was a major step in replacing the previous patchwork of feudal laws. Historian Robert Holtman regards it as one of the few documents that have influenced the whole world.</p>
<p>The Napoleonic Code was not the first legal code to be established in a European country with a civil-law legal system; it was preceded by the <em>Codex Maximilianeus bavaricus civilis</em> (Bavaria, 1756), the <em>Allgemeines Landrecht</em> (Prussia, 1794), and the West Galician Code (Galicia, then part of Austria, 1797). It was, however, the first modern legal code to be adopted with a pan-European scope, and it strongly influenced the law of many of the countries formed during and after the Napoleonic Wars.</p>
</blockquote>
<p>The Napoleonic Code did not normally permit the kind of wide interpretation and judicial law-making characteristic of the common-law system. Note that all the codes mentioned in the Wikipedia article quote above are much more recent than the common-law tradition, which has roots going back before the Norman Conquest of England in 1066.</p>
<p>The US Constitution grew from a common-law system.  Many of the Framers were lawyers practicing under such a system, and all the rest had lived under this system all their lives. In the English system and those systems derived from it, including the colonial systems in North America, judges made new law and interpreted statutes quite freely.</p>
<p>It would not be correct to say, as a comment did, that the founders <strong>readopted</strong> the common law system, or indeed that it had been <strong>adopted</strong> in England.  The common-law system was slowly <strong>developed</strong> in England, over the course of hundreds of years. it was never designed. At the time that the US Federal Constitution was drafted, there was a common-law system in full force and effect in the United States, and had been for several generations. Few of the Founders had ever lived under any other system, (well, Hamilton spent his early years under a modified French system) and many would have taken a common-law system as natural and inevitable, as Blackstone described it. Those more aware of the legal systems then in place in Europe (including Hamilton and Madison) would probably have seen them as inferior, a patchwork of medieval relics, theoretical principles derived from analyzing Roman law, traditional customary law from various sources, and recent legislation and decrees. (This attitude is evident in <em>The Federalist</em>.) The first of the civil law codes were only starting to be issued, and the unifying force of the Napoleonic Code was still more than a decade in the future (18 years, 1787 to 1805).  The founders had no thought of replacing or modifying the common law system or the common law in general. There was no need to &quot;readopt&quot; the common law. Blackstone was considered the foremost legal authority in the early US, and all lawyers studied his <em>Commentaries</em>. (Citations to the <em>Commentaries</em> occur in quite a few Marshall court cases.)</p>
<p>Early US Supreme Court decisions confirmed and solidified this pattern, especially those of the <a href="https://en.wikipedia.org/wiki/Marshall_Court" rel="nofollow noreferrer">Marshall Court</a>. It was that court which decided <em>Marbury vs Madison</em> first exercising the power of declaring federal laws void for unconstitutionality. It was that court which decided <a href="https://en.wikipedia.org/wiki/McCulloch_v._Maryland" rel="nofollow noreferrer"><em>McCulloch v. Maryland</em></a> determining that the Federal Government could establish a bank in the absence of any explicit power to do so, and that once established, it was not subject to state taxation. It was that court which decided <a href="https://en.wikipedia.org/wiki/Fletcher_v._Peck" rel="nofollow noreferrer"><em>Fletcher v. Peck</em></a> in which the Court for the first time ruled that a state law was unconstitutional, and that a contract, even one made via a corruptly passed law, could not be voided by a later law. It was that court which decided <a href="https://en.wikipedia.org/wiki/Martin_v._Hunter%27s_Lessee" rel="nofollow noreferrer"><em>Martin v. Hunter's Lessee</em></a>, holding that Federal courts may hear and decide appeals of state court decisions when they rest on federal law or the federal Constitution, and that those decisions are binding.  It was that court which decided <a href="https://en.wikipedia.org/wiki/Cohens_v._Virginia" rel="nofollow noreferrer"><em>Cohens v. Virginia</em></a> holding that state laws inconsistent with valid Federal laws are void, and that people convicted of crime may appeal to Federal courts if they claim violations of Federal Constitutional rights.  That court decided <a href="https://en.wikipedia.org/wiki/Wheaton_v._Peters" rel="nofollow noreferrer"><em>Wheaton v. Peters</em></a> holding that there could be no copyright in federal judicial opinions, upholding the power of Congress to grant copyrights, and rejecting the concept of a common-;aw copyright for unpublished works. That court decided <a href="https://en.wikipedia.org/wiki/Gibbons_v._Ogden" rel="nofollow noreferrer"><em>Gibbons v. Ogden</em></a> holding that regulation of interstate water navigation was a power of the federal Government under the Commerce clause. Many of these cases effectively made policy decisions and shaped the structure of US Federalism.</p>
<p>The Marshall Court had a particular dislike for bankruptcy laws, and held several state laws that discharged debts in bankruptcy void as violations of the Contract Clause. This had significant effects on the industrial policy of the early 1800s.</p>
<p>Marshall's long tenure as Chief Justice (1801-1835, still the longest serving Chief Justice in US history) and his dominant position on the court (he wrote more than 75% of the decisions in most terms, and unanimous decisions were far more common at that time than they have been since) enabled him to strongly influence the pattern of the Supreme court as an institution.</p>
<p>Since then this tradition of Constitutional rights and powers, and Court decisions interpreting them as major policy influences has persisted. This tradition arose while the Constitution was still relatively new, and its language was the ordinary legal language of the day. It has persisted through periods without anything like the current political partisan gridlock. (Although the partisan heat between the Federalists and the early Democrats, particularly over the election of 1800, was at least as hot as today's, IMO. It should be noted that Marshall was a firm Federalist.) It may have been influenced by the comparative novelty of a written constitution superior to ordinary laws, and not subject to easy alteration.</p>
<p>The tradition has persisted in significant part by what might be called historical inertia. Once the pattern was set by the founders and solidified by the decisions of the Marshall Court, it would have required a major effort to change it, in some ways greater than the effort that drafting and ratifying the Constitution took. Changing the way the Supreme Court interprets the Constitution would probably have required significant changes in the way US lawyers in general thought of and practiced their profession, and might well have cast doubt on many of the Marshall Court decisions. Most of those working =under the system were at least roughly satisfied with it, even when they strongly disliked particular decisions. (For example, the <em>Dred Scott</em> decision of the Taney Court {Taney was Marshall's successor}. This, in effect, held that Negros could never become US citizens and had no rights that needed to be respected, and that a free state could not free slaves brought in from a slave state.) There was not the wide consensus and heavy pressure for change that would have been needed for such a major upheaval. Occasional periods of partisan gridlock, such as the Federalist/Democratic conflict of roughly 1795-1815, and the Republican/Democratic conflict of 1845-1861 may have reinforces this patterns to some degree, but it persisted even though periods of greater bipartisan cooperation. By the mid-20th century it had become so strongly set that the Roosevelt &quot;court-packing&quot; plan never had a chance of being passed, even though New-Deal activists were highly frustrated with what they saw as obstruction by the Court. The current episode of partisan gridlock, has its roots in the 1980s, but did not become dully developed until the late 1990s or later. By then the style of Supreme Court interpretation of the Constitution had been set for over 150 years, and there was no realistic prospect of a change.</p>

<p>I think that the premise of the question is overstated, because, in fact, contrary to the question's assertion that &quot;the EU the composition of respective judicial bodies, whether they hold &quot;conservative&quot; or &quot;progressive&quot; personal opinions don't influence the state of affairs much&quot;, the political makeup of constitutional courts in Europe is, if anything, more openly partisan and has a big influence. As @Amon notes in a comment:</p>
<blockquote>
<p>the German constitutional court effectively create new laws or rights
through a novel interpretation of basic rights, notably a right to
informational self-determination (privacy laws) and a right to the
future (climate policy).</p>
</blockquote>
<p>But there are some factors that are different in constitutional law and human rights law between the U.S. and European civil law countries that bear keeping in mind.</p>
<p><strong>Judicial Review Is Young In Europe</strong></p>
<p><em>The History Of Judicial Review In The U.S.</em></p>
<p>In the United States, the current constitution took effect in 1789 and the Bill of Rights took effect in 1791. The 13th to 15th Amendments (the post-Civil War Amendments) were adopted in the 1860s, the Prohibition Amendment was repealed after being adopted, and most of the remaining amendments were highly technical matters governing the fine details of Presidential succession. Everyone alive when the most litigated portions of the U.S. Constitution were drafted and adopted is dead. U.S. courts began asserting the right to strike down statutes as unconstitutional very early on, in the early 1800s. <em>See, e.g., McCulloch v. Maryland</em> (U.S. Supreme Court 1819).</p>
<p>The drafters were idealist revolutionary insurgents in a nation that had just recently rejected the system of government of its colonial master in England. The current U.S. Constitutions was adopted as one of the first national governing documents for a democratic republic of much larger than a city-state, a form of government that was very new at the time, so the people who wrote it had little idea about what to expect about how it would work without a supervising monarch.</p>
<p>No doubt the Founders would be stunned to learn that their constitution was still a living document being used on a daily basis more than 230 years after it was adopted, serving a country with 50 states, more than 330 million people, and territory extending beyond the Pacific Coast to Alaska, Hawaii and Guam, with a national government that has more than 4 million employees.</p>
<p>Indeed, one difficultly in interpreting and applying the constitution is that no one who wrote it could have contemplated that it would be applied in these circumstances of scale and technology. So, anyone trying to interpret it is engaged in an act that is more art than science.</p>
<p><em>The History of Judicial Review In Europe</em></p>
<p>In most of Continental Europe, in contrast, judicial review of legislation to evaluate its constitutionality largely dates to the post-World War II time period when most national constitutions in continental Europe were rewritten in the contemporary language of the day (which was mostly a far more detailed and technical writing style than that of the U.S. Constitution).</p>
<p>The people who wrote those constitutions, fresh from the massive bloodshed and destruction of World War II, had the benefit of more than 150 years of democratic government in constitutional monarchies with weak royal authority and in democratic republics including the United States. They also weren't revolutionaries. They were trying to get normal government running again after a wartime disruption. They were long on historical experience and comparatively less misty eyed about what was and wasn't possible or desirable in a foundational national organizing document.</p>
<p>Furthermore, the initial judges of European Constitutional Courts, which unlike the U.S. system of judicial review, typically have sole authority to find that statutes are unconstitutional, were all appointed at the same time by a group of politicians whose consensus lead to the adoption of these constitutions in the first place.</p>
<p>For most of the time that judicial review has been in existence so far, the people who originally wrote those constitutions in continental Europe were alive to tell. Often, some of the first judges on these constitutional courts helped write those constitutions.</p>
<p><strong>Ease Of Amendment</strong></p>
<p><em>The U.S. Constitution Is Very Hard To Amend So Constitutional Rulings Are Hard To Overturn</em></p>
<p>Equally important, the U.S. Constitution is extremely hard to amend and has grown harder to amend as it has grown from 13 states to 50 states plus the District of Columbia and some self-governing territories. The Civil War Amendments (the 13th to the 15th) were made possible largely because the former Confederate States had not had their political rights in the post-Civil War Constitutional system reinstated in full yet. The last three really significant constitutional amendments (the 16th establishing the power to impose an income tax, the 17th directly electing senators, and the the 19th giving women the right to vote) were adopted from 1913 to 1920, more than a century ago. The 18th and 21st Amendments imposed and then repealed prohibition and are no longer relevant. The other six amendments adopted in the last century (the 20th, 22nd, 23rd, 24th, 25th and 26th Amendments to the U.S. Constitution) have dealt with the minutia of Presidential succession, slight details in the scope of the franchise that could have been enacted by statute, and the slight tweak to the procedure of changing congressional pay.</p>
<p>This means that, in practice, a court determination of the meaning of the U.S. Constitution can't be reviewed or altered by anyone except a higher court, and in the case of a U.S. Supreme Court decision, only by a later panel of the same U.S. Supreme Court.</p>
<p>This makes the U.S. Supreme Court the final arbiter of all decisions it decides by a five vote majority to declare to be constitutional law.</p>
<p><em>European Constitutions Are Younger And Easier To Change</em></p>
<p>In contrast, the constitutions of continental Europe are universally much easier to amend in practice than the U.S. Constitution. They are more akin to state constitutions in the U.S., which are frequently amended, in this respect.</p>
<p>For example, in France, after the end of the Vichy regime at the end of World War II, a provisional government was established in 1944, the new constitution of the Fourth Republic was adopted in 1947, and that constitution was replaced with a new one giving rise to the Fifth Republic in 1959. France has had only eight Presidents since then (plus Alain Poher who served as interim President twice early on).</p>
<p>In Spain, Francisco Franco presided over a dictatorship from 1939 until his death in 1975, and constitutional monarchy with governance by elected representatives was reinstated only in 1977.</p>
<p>Italy's First Republic came into being by popular referendum in 1946 when it also adopted a new constitution, and that constitution was replaced by the one establishing the Second Republic in 1992, after decades of struggling with a system under the First Republic that consistently led to dozens of short lived coalition governments.</p>
<p>The ease with which these constitutions can be amended puts a strong democratic check on the power of any interpretations of the constitution in place at the time the decision is made to interpret it.</p>
<p><strong>European Constitutional Courts Often Lack The Final Say</strong></p>
<p>In the U.S., the buck stops at the U.S. Supreme Court. No one can gainsay it.</p>
<p>In Europe, while there are human rights protections in their constitutions (and most interesting constitutional law involves individual rights established by constitutions), most European nations are also part of the Council of Europe which adopted a treaty based set of human rights protections that are reviewed after domestic court options are exhausted by the European Court of Human Rights.</p>
<p>While this review is procedurally distinct from a simple direct appeal in U.S. Courts, the bottom line is that the European Court of Human Rights can compel any country that remains a part of the Council of Europe (a multi-lateral treaty based group larger than the E.U.) to conform its laws in the long run its its resolution of human rights issues, and it would be politically damaging for a European country to withdraw from that agreement.</p>
<p>Likewise, many individual economic rights at a high level are protected by the treaty structure surrounding the European Union and is related bodies and if domestic courts go astray from those economic individual rights obligations, after litigation in E.U. courts, member countries can be compelled in the long run to conform to these individual economic rights protections.</p>
<p>So, constitutional courts, while they are close to the final word in European constitutional jurisprudence, can be second guessed and effectively overruled in the long run, by European court rulings authorized by multilateral treaties which a great many European countries are parties to and wouldn't contemplate leaving on any serious basis. An extreme constitutional court position not in the spirit of human rights and economic rights protections under the relevant treaties are not likely to persist as law in the countries where those constitutional courts preside. This in turn, tempers the kinds of rulings that these courts make.</p>
<p><strong>Method Of Appointment</strong></p>
<p><em>Most American Judges Need Partisan Ties To Secure Their Offices And Appointments Are Rare And Random</em></p>
<p>In the U.S., while all courts can interpret the constitution, they are ultimately subject to the rulings of the U.S. Supreme Court which initially had fewer justices but now has nine justices. Every justice is a partisan appointees of the President alone, subject to U.S. Senate approval (and no say for the U.S. House). For most of recent history, Senate approval required a 60% majority in the Senate and was almost never withheld. More recently, Senate approval has required only a bare majority of Senators who are not bipartisan, and several nominees have not been approved or have been seriously contested. Accidents of death or resignations determines which Presidents get to make appointments because they serve for life, and in recent times, the candidates have been as young and healthy as possible to maximize a President's impact on the U.S. Supreme Court's decision making. Justices often serve more than twenty years.</p>
<p>In theory, in the U.S., a party with control of Congress and the Presidency can &quot;pack the court&quot; with new additional like minded justices, something that was threatened and produced significant changes in jurisprudence without having to be carried out during FDR's Presidency, and has currently been vetted by Democrats who don't have the votes they need in the Senate to make that happen right now. In practice, due to the history of the filibuster in the U.S. Senate, one political party has only rarely had the power to enact this kind of legislation, and those time periods have rarely coincided with severe conflicts between the Supreme Court and the party controlling the political branches.</p>
<p><em>European Constitutional Court Appointments Are For Shorter Terms And Intentionally Consider Political Balance</em></p>
<p>Constitutional courts also have systems in place to make them more balanced on terms of partisan divisions.</p>
<p>The <a href="https://www.conseil-constitutionnel.fr/en" rel="nofollow noreferrer">French Constitutional Council</a> (established in 1958) has nine members appointed to nine year terms, with appointments split between its President, its upper house of Parliament, and its lower house of Parliament.</p>
<p>In Italy, the Constitutional Court held its first hearing in 1956:</p>
<blockquote>
<p>The Constitutional Court is composed of 15 judges for the term of
service of nine years: 5 appointed by the President, 5 elected by the
Parliament of Italy and 5 elected by the ordinary and administrative
supreme courts. Candidates need to be either lawyers with twenty years
or more experience, full professors of law, or (former) judges of the
Supreme Administrative, Civil and Criminal tribunals.</p>
</blockquote>
<p>The <a href="https://en.wikipedia.org/wiki/Federal_Constitutional_Court" rel="nofollow noreferrer">Federal Constitutional Court in Germany</a> which was established in 1951 under a constitution established with the supervision of allied forces in West Germany, and has a total of sixteen members selected on a multi-partisan basis for limited terms of office:</p>
<blockquote>
<p>The court's judges are elected by the Bundestag (the German
parliament) and the Bundesrat (a legislative body that represents the
sixteen state governments on the federal level). According to the
Basic Law, each of these bodies selects four members of each senate.
The election of a judge requires a two-thirds vote. The selection of
the chairman of each senate alternates between Bundestag and Bundesrat
and also requires a two-thirds vote.</p>
<p>Until 2015 the Bundestag has delegated this task to a special
committee (Richterwahlausschuss, judges election committee),
consisting of a small number of Bundestag members. This procedure has
caused some constitutional concern and was considered to be
unconstitutional by many scholars. In 2015 the
Bundesverfassungsgerichtsgesetz (law code of the Federal
Constitutional Court) was changed in this aspect, ruling that the
Bundestag elects judges to the court by secret ballot in the plenum,
requiring a candidate to get a two-thirds majority, that has to equal
at least an absolute majority of members of the Bundestag. The
Richterwahlausschuss now only has to nominate a candidate. This new
procedure was applied for the first time in September 2017, when Josef
Christ was elected to the first senate as the successor of Wilhelm
Schluckebier. In the Bundesrat, a chamber in which the governments of
the sixteen German states are represented (each state has 3 to 6 votes
depending on its population, which it has to cast en bloc), a
candidate currently needs at least 46 of 69 possible votes.</p>
<p>The judges are elected for a 12-year term, but they must retire upon
reaching the age of 68. A re-election is not possible. A judge must be
at least 40 years old and must be a well-trained jurist. Three out of
eight members of each senate have served as a judge on one of the
federal courts. Of the other five members of each senate, most judges
previously served as an academic jurist at a university, as a public
servant or as a lawyer.</p>
</blockquote>
<p><em>Regular European Judges Are Career Civil Servants</em></p>
<p>Regular judges in Europe, moreover, are almost uniformly non-partisan civil servants who started careers as judges right out of law school, starting at traffic court and in small claims court and working their way up with experience if they continued to show judicial temperament.</p>
<p><em>Regular U.S. Judges Usually Have Political Connections</em></p>
<p>In contrast, in the U.S., even lower court judges are routinely selected through a political process after having established themselves as loyal to one major political party or the other. Often at the state and local level, they get their offices by running in partisan elections which then makes them look qualified to serve as federal judges. Also, in the U.S., judges are uniformly in a second or third career, after having established themselves as successful and politically connected lawyers, most often as prosecutors, government agency lawyers, public defenders, civil rights lawyers, personal injury lawyers, commercial trial lawyers for big businesses, or corporate lawyers for very large businesses (in roughly that order of frequency). U.S. judges learn to be partisan advocates for their clients' positions before they become judges and are expected to become impartial. But old habits are hard to shake.</p>
<p><em>Regular European Judges Don't Decide Public Law Issues</em></p>
<p>Also, in Europe, ordinary judges usually decide only issues of criminal law and &quot;private law&quot; (i.e. law governing the legal rights of private parties vis-a-vis each other). They frequently don't have significant public law jurisdiction (i.e. jurisdiction over disputes between the government and private parties or between or within governments), which are handled by administrative courts that aren't feeders to qualification requirements of constitutional courts, or constitutional courts themselves.</p>
<p><em>U.S. Judges Routinely Resolve Partisan Controversies Of Public Law</em></p>
<p>In contrast, almost all general jurisdiction trial court judges in the U.S. and almost all appellate judges in the U.S. handle a significant number of public law cases as part of their ordinary court responsibilities in the U.S.</p>
<p>Judicial partisanship runs deep in the American political process. A few states depart from this trend with civil service type appointments, but even then, the final decision out of typically three finalists is made by a single partisan elected official (usually a state governor).</p>
<p><strong>Scope Of Authority And Gridlock</strong></p>
<p><em>European Political Systems Are Rarely Gridlocked So Partisan Fights Over The Meaning Of The Status Quo Are Rare</em></p>
<p>In most European countries (France is a rare exception), one political party or a majority coalition of parliament, has the authority to enact new national laws (subject to some rare supermajority requirement matters) at any time. If the highest non-constitutional court makes a legal ruling that the ruling coalition doesn't like, parliament can quickly and easily change the law. The status quo of federal law is fluid.</p>
<p>So, in Europe, even though constitutional court appointees are often appointed with political agendas in mind, they at least aren't placed in the constant position of having to resolve partisan non-constitutional issues dozens of times every year in a way that influences their constitutional jurisprudence.</p>
<p><em>The U.S. Political System Is Usually Gridlocked Which Makes The Court Determined Status Quo Very Important And A Partisan Issue</em></p>
<p>The U.S. Supreme Court is comfortable excising great political power, in part, because in addition to having the final say on matters of constitutional interpretation (including what constitutes a constitutional matter), the U.S. Supreme Court also (unlike European constitutional courts which have authority only over constitutional questions) also has the final say on interpretation of all federal laws.</p>
<p>The power to determine what federal laws mean in the status quo is vastly more significant in the U.S. than in European parliamentary systems.</p>
<p>In contrast, in the United States, it takes a majority control of the U.S. House, 60% control of the U.S. Senate, and the decision of the President not to veto legislation, to enact new federal statutes (or the negotiation efforts of the President and a two-thirds vote of the U.S. Senate to pass a treaty). A very large portion of the time, neither of the parties in the U.S. two party system has the power to accomplish all three of those things without the support of a significant number of members of the other major political party.</p>
<p>This means that legal fights over what the status quo means are highly relevant, and that there is a great deal of effort to use the Presidential regulatory power and litigation to shape the status quo, since legislation isn't an option on any matter upon which there is serious partisan disagreement. Exceptions to the 60% filibuster requirement for budget measures and approval of Presidential appointments keeps the system functioning, just barely, but any substantive partisan change is very hard to accomplish no matter who gets elected except in rare moments when one party hits a political high water mark that often only lasts two to six years.</p>
<p>In the meantime, a common strategy to get bipartisan support for necessary legislation is to draft it knowing that it is ambiguous in order to get sufficient bipartisan support and for legislators and Presidents to gamble that the courts will interpret the ambiguity in favor of their view of how the ambiguity should be resolved.</p>
<p>Because highly partisan issues routinely give rise to separation of powers and legislative process driven struggles to establish the legal status quo in the courts, courts, especially federal courts, are routinely faced with the task of resolving highly partisan political issues, and since they are political appointees of the President chosen primarily for their partisan loyalty, who from district court to the U.S. Supreme Court serve for life and are chosen at irregular intervals, federal judges and justices get in the habit of doing what they were appointed to do and resolving partisan legal battles on a partisan basis. This well established habit (further exacerbated by partisan federalism disputes to a lesser extent), then spills over into their jurisprudential habits when deciding constitutional issues.</p>
<p><strong>The U.S. Is More Deeply Substantively Divided On Policy Issues</strong></p>
<p>One of the reason that the U.S. has such intense partisan divides in its political and legal system is that the magnitude of partisan division between different regions and subcultures in the U.S. is very great and is long standing. These divisions were present in the First Congress in 1789, erupted violently in the U.S. Civil War, and remain present, along more or less the same geographic lines.</p>
<p>Only a few European countries have populations or territories larger than the largest U.S. states. The largest is about 1/4 of the U.S. population and much smaller in territory than the U.S. (except Russia). Since its boundary lines mostly weren't drawn by outside colonial powers that didn't understand their cultural makeup, the coincidence between cultural and ethnic nations on one hand, and national boundaries on the other, is significant.</p>
<p>Sure, there are secessionist movements in many European countries on geographic and ethnic lines. But, on a lot of human rights issues, democratic process issues, and other issues that are hot partisan topics in the U.S., there is more common cause and consensus than in many individual European nations.</p>
<p>Christian Democrats and Democratic Socialists, or Catalan independence movement supporters and Spanish unity supporters, will certainly disagree on lots of important issues, but nobody wants to completely privatize health care, or abolish all national taxes, or put someone in prison for life for shoplifting, or prevent a large share of the citizens in the country from voting, or doesn't want legislators to be elected based upon how voters voted in the last election, or wants to allow slavery to be imposed for crimes. Every European country has abolished the death penalty for all or virtually all crimes. The U.S., in contrast, has to deal with these issues on a regular basis.</p>
<p>These nations may have extremes that go further, but the difference between the 25th percentile view and the 75th percentile view (which is the natural midpoint of opposing near majority coalitions in a country) is closer in most of these individual nations than it is in the U.S.</p>
<p>This also takes some of the partisan pressure off European constitutional court judges who often have more shared national culture and political consensus on the issues they are charged with considering to work with in their work.</p>

<p>One aspect that @David Siegel's answer neglects is that the nature of the U.S. Constitution in history.  It the oldest extant national constitution in effect in the world and a strong influencer in many other nation's Constitutional Documents, but those were drafted after the U.S. constitution and settled a lot of issues at drafting that the U.S. one left to hang.  Additionally it was written as a document for government structure first and people's rights were almost universally added after the drafting through amendments (The right to move freely between the states was the only original right of the people in the constitution prior to the bill of rights' adoption).</p>
<p>The other reason is because the U.S. Constitution is written by people who viewed government as a necessary evil and wanted to make it as inefficient as possible (The &quot;Speed of Government&quot; is a feature, not a bug), so they decided that rather than quibble over every scenario, they'd write up very general rules and when a specific problem arose they'd let the people raising the problem sort it out.  Certain parts of the constitution were written to require some sort of agreement of people in some respect to get anything done (Checks and Balances for example) and several parts were written with the understanding that the future would hold questions that not only could the Founders not anticipate, they couldn't comprehend.   For example, there was a point in time, where the U.S. didn't need to think about time zones or sewer systems, or waste management or electricity (well, beyond &quot;Why is Ben Franklin's hair so funny looking?&quot;).  So the solution was to leave only the general rule and let the people this becomes a problem for sort it out.  In fact, the 9th and 10th amendments are basically future proofing the constitution.  Is the constitution the definative list of all rights the people enjoy?  Nope (9A)?  Who gets the power over deciding what new rights exist?  Well, if a new right is claimed, assume it's a right of the people or the state (10).</p>
<p>Another thing is that the bill of rights doesn't list only 10 rights... most amendments deal with several rights at one time.  The first amendment grants 5 rights and it takes five amendments to detail all the rights afforded to people accused of a crime (4, 5, 6, 7, 8).  Amendments 2 and 3 are the only two that name a single right and even then that doesn't solve the issues of interpretation.  The Second Amendment is one of the most controversial Amendments in the entire constitution that has yet to be dealt with.  Meanwhile the Third Amendment has yet to be cited in any Supreme Court Decision and is rarely invoked.</p>
