A close look at Truss’s legal threat to Starmer – a glorious but seemingly hopeless cease-and-desist letter

9th January 2025

How the lore of New Year defeated the law of New Year – how the English state gave up on insisting the new year started on 25 March

New Year’s Day 2025

By the mid 1700s in England there was a curious juxtaposition between the lore of New Year’s Day and the law of New Year’s Day.

The legal system, the government, the established church, and business: all insisted that the year began on 25 March – Lady Day.

That would be the date on which, say, 1748 would become 1749.

This sort-of-made-sense for many reasons.

It would make the month beginning with ‘Sept’ the seventh month, and the month beginning with ‘Oct’ the eighth month, and so on.

It also meant that years began in spring, rather than in midwinter (bleak or otherwise).

It accorded with the conventions of business and legal transactions – and even today 25 March is one of the quarter days on which certain debts become due.

(Also at this time, Acts of Parliament and other legal instruments were usually dated by regnal years anyway.)

And it even fitted with the Christian year, for the feast of Annunciation was a good time to get spiritual things going for a new circuit of the sun, with Christmas then neatly coming nine months later.

Linguistically, legally, administratively, commercially, spiritually – everything pointed to 25 March being the start of the year.

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But.

There was a problem.

And the problem was that people ignored what they were supposed to think, and carried on celebrating the new year on 1 January anyway, as they had done since time immemorial.

Even within the court and the corporations – as Ronald Hutton details in his great book The Stations of the Sun – they privately celebrated the new year on 1 January.

There was thereby a tension – indeed a contradiction – between the lore of new year and the law of new year.

This, in turn, had practical problems.

As A. F. Pollard explains in this informative 1940 paper, wills and other legal instruments affecting normal people often had date errors, because what people believed to be the new year contrasted with the official position.

(It also meant problems in respect of dealing with Scotland which had sensibly moved to a 1 January start date back in 1600.)

It did not matter what the church and parliament and the crown and the courts said, people persisted in acting as if the year changed on 1 January.

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And so in 1750 the church and parliament and the crown and the courts gave up.

An Act of Parliament was passed switching the start of the year to 1 January:

The Act had this wonderful preamble:

“Whereas the legal Supputation of the Year of our Lord in that Part of Great Britain called England, according to which the Year beginneth on the 25th Day of March, hath been found by Experience to be attended with divers Inconveniencies, not only as it differs from the Usage of neighbouring Nations, but also from the legal Method of Computation in that Part of Great Britain called Scotland, and from the common Usage throughout the whole Kingdom, and thereby frequent Mistakes are occasioned in the Dates of Deeds, and other Writings, and Disputes arise therefrom […]”

This was also the Act which switched the English calendar to the Gregorian calendar, omitting the days from 2 September to 14 September 1752.

(See what you can do with Acts of Parliament. Just as powerful on matters timey wimey as any Doctor Who scriptwriter.)

Lore had prevailed over law: what people believed and practically understood to the case forced the official position to yield.

Law can only conflict with lore for so long.

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Happy new year to all the followers of this blog, and thank you for your support.

Some of President Carter’s judges can still judge, 44 years later – and so we can see how long Trump’s new nominees will be on the bench

New year’s eve, 2024

The former US President Jimmy Carter, who has just died, left office in January 1981 – just under 44 years ago.

Yet one of his many bench nominees was still actively serving as a federal judge as recently as 2021:

And that list also indicates that about 29 of those judges – while not on active service – have the semi-retired “senior status” and so can still serve as judges if required.

This shows the significant lingering power of every US President on the shape of the judiciary.

A 100 year-old president former president has died who left office over 40 years ago, and yet his appointments can still decide cases.

Bringing this around to today: the newly re-elected Donald Trump and the Republican Senate will be appointing a raft of young conservative judges to the judicial benches, in addition to those which were appointed during his first term.

And some of these will still be judging (or able to judge) in 40 or 50 years – long after many of you reading this post may be here.

The lingering effect of the two Trumpite moments will last for political generations. Some appointed judges may see out ten or more presidential terms and still be judging.

And judicial time limits are now more unlikely than ever: Trump and the Republican senators have no interest whatsoever in limiting the enduring power of their nominees. And presumably as and when (or if) the Democrats ever regain power, they will have no interest in limiting the terms of their appointees.

This is a practical effect of how what some say (or hope) may only be short-term political surges can have consequences that will last decades.

(See also: Brexit.)

We are not dealing only with the politics of the here and now, but about the law and government of the hereafter.

Perhaps things will one day get better for liberals and progressives.

Perhaps.

But it is going to be a long haul.

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Happy new year to the readers of this blog.

Thank you for your ongoing support.

There is going to be a lot to write about in the new year – and I am also going to explore the law and policy of AI, following my Candlemas story.

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“Twelfth Night Till Candlemas” – the story of a forty-year book-quest and of its remarkable ending

The day before the Winter Solstice, 2024

An argument about Assisting Dying – matters of life and death need to be properly regulated by law, and not by official discretion

28 November 2024

The illiberalism yet to come: two things not to do, and one thing to do – suggestions on how to avoid mental and emotional exhaustion

The new Republican presidency-congress in the United States as well as developments in other countries mean that in addition to the illiberalism we have had so far, there is more – perhaps worse – to come.

So how should liberals respond?

Here are three suggestions, humbly put forward.

1. Do not respond, if you can, to catastrophism. You are going to think how bad things can be, and will project this on to the other side. You will then react to what your mind has conjured up. Even if those projections are plausible, this will exhaust you quickly. You will have little energy or focus left for what they do come up with.

2. Do not respond, if you can, to what the illiberals say they will do. They will goad you and frighten you, as they enjoy “owning the libs”. They like the sound it makes, the reactions they can get. Again, even if these threats are plausible, reacting to each bare threat will exhaust you quickly. You will again have little energy or focus left for what they do come up with.

3. Respond, if you can, to what they actually do – not what you fear they will do, or even what they say they will do. What they actually will do will be bad enough, and will need your energy and focus. The illiberals will hope – and expect – that all the noise and fears under (1) and (2) will mean that by the time they do put measures forward, they will have little opposition.

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As Margo Channing in All About Eve said, we are are in for a bumpy ride.

We don’t need to make it even bumpier for ourselves.

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New stories for old – making sense of a political-constitutional rupture

14th November 2024

The shapes of things to come – some thoughts and speculations on the possibilities of what can happen next

8th November 2024

The working assumption of many in reaction to the re-election of Trump as President is that he will serve a full term.

And that is the most likely outcome, as that is what presidents tend to do once elected: they serve out their term.

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But there are other possible outcomes.

Some outcomes are morbid, and they are possibilities for any president, especially for one advanced in years.

And there is the possibility he may step down mid-term – or be replaced mid-term.

If Trump stands down mid-term, the new President Vance could pardon him for all and any federal crimes (though not state crimes). This would meet one of Trump’s presumed objectives for having re-run for President.

And if the timing of the replacement is done just right then a President Vance has the prospect of up to (but not quite) ten years in office: here the Twenty-second amendment to the US constitution provides:

Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. […]”

If the replacement is done on the day after the second anniversary of the start of the term, then there would seem nothing to prevent a President Vance from then running for election and then re-election as President.

[Edit – in other terms: (2 years minus one day) plus 4 years plus 4 years.]

It can also be noted that in a way Trump has done his job for his backers in getting re-elected and, accordingly, there is nothing more he can personally do for them which another friendly occupant of the Oval Office cannot also do. If their objective is dominance over the medium- to long-term then they will be already thinking about the approach to the 2028 election.

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And if there are doubts (real or otherwise) about the cognitive alertness of President Trump there is also the Twenty-fifth Amendment, where a President can be effectively removed against their will, on declaration of the (well) Vice-President and others.

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On the other hand, a President Trump serving a full term may suit his backers just fine.

Trump is not a President to personally drive legislation through Congress – he is not a Lyndon Johnson or a Franklin Roosevelt.

But with a Republican Senate he does not need to do so: they can drive through the legislation themselves, subject to the final composition of the House of Representatives.

What a lazy president enables is for those around him to dominate the judicial nominations and discretionary powers.

So we can expect a raft of conservative nominations for the judicial benches – and for Justices Clarence Thomas and Samuel Alito to stand down and be replaced by 40 or 50 year-old strong conservatives, nominated by Trump and approved by the Senate. That will secure the Supreme Court for the conservatives for at least another twenty years, if not more.

And we can expect a huge amount of Executive Orders and such like, which in turn will be upheld by conservative judges – for who needs congressional legislation when you can have the combination of executive rule-making and nod-along judges?

Those around Trump will not be the inexperienced incoming staffers of the 2017 presidency, but people who know what to do and how to do it, many with hard experience of the first Trump presidency.

They will know what to do so as to fit things around a golf-playing president.

Trump himself may not be busy, but those around him will be.

Brace, brace.

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A postcard from the day after an election: capturing a further political-constitutional moment

6th November 2024

Yesterday things were unclear, and today things are all too clear.

Yesterday it looked as if Harris could win. On the evidence available to someone watching from England, there seemed no great enthusiasm for Trump either at his flagging under-attended rallies or elsewhere. There seemed no reason to believe he would do better than four years ago (or two years ago with his endorsed candidates).

But against that view was a sense of apprehension, if not doom. For, as this blog also averred, one could also too easily imagine Trump winning. Not because one could point to ‘factors’ (as a certain type of historian would put it), but just because he could – especially in this age of extreme political volatility.

And he has.

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One trick of the human mind is to place shape and form onto events which at the time were uncertain, and so those who were themselves unclear as to what was about to happen tend to deftly switch to being very clear about what went wrong – and who was to blame.

From the perspective of this liberal constitutionalist blog the only points that seem worth making at this stage is about how the electoral system (at least in the United States but also elsewhere) is inefficient in certain respects.

Viz:

A candidate was a liar, known to be a liar and could easily be shown to be liar – but people voted for that candidate anyway.

A candidate was a convicted fraudster – but people voted for that candidate anyway.

A candidate was by any meaningful definition an insurrectionist – but people voted for that candidate anyway.

And a candidate was in the views of some serious people a fascist – but people voted for that candidate anyway.

This means that there is no point, in and of itself, showing a candidate to be a liar, fraudster, insurrectionist and/or a fascist if people do not actually care if that candidate is a liar, fraudster, insurrectionist and/or a fascist.

And so if the outputs of a media-political system of accountability – such as that offered by the lengthy US presidential campaign – do not gain purchase or traction, then the question is what is the purpose of a system of accountability.

The view that once a candidate is shown to be [X] then that would be enough for voters to not support that candidate falls apart when voters, knowing the candidate is [X], do not care.

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What is the solution to this problem?

Perhaps there is no solution. As a Victorian politician once said to an earnest colleague: do you really believe there are solutions to political problems?

(One day I will track down that quotation.)

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But a step towards a solution is to understand the nature of the problem.

The old media-political model of accountability – the Woodward and Bernstein model, if you will – is not working when you have a shameless candidate clapped and cheered by nod-along supporters.

And it is not a problem that is going to go away.

Yes, Trump is exceptionally charismatic – it is difficult to image a DeSantis or a Vance carrying a campaign like Trump. As such it is tempting to see him as a one-off and to just wait for him to go and for normality to return.

But there will be other Trumps, especially as the old gatekeepers in political parties and mainstream media fall away, and as illiberals become more adept at exploiting mass social media.

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The one book which seems pertinent to all this originated in (of all years) 1984.

This was Neil Postman’s Amusing Ourselves to Death – a book which should be better known.

His son wrote this brilliant short essay about that book and Trump in 2017, a lot which still stands today.

His son said:

“I wish I could tell you that, for all his prescience, my father also supplied a solution. He did not. He saw his job as identifying a serious, under-addressed problem, then asking a set of important questions about the problem. He knew it would be hard to find an easy answer to the damages wrought by “technopoly”. It was a systemic problem, one baked as much into our individual psyches as into our culture.”

His son then put forward some possible solutions. You may think of others. I cannot think of any.

How do you have accountability when people care not for the accounts that they are given?

When people know they are being lied to, but do not care?

I have no idea.

The only conclusion I have is that it is time for a good cup of tea.

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A postcard from the day of an election – capturing a political-constitutional moment

5th November 2024

Today is the day of the American presidential election.

Sooner or later there should be a result – even if, like four years ago, there is drama (or worse) all the way into the new year. And when there is some sort of result then there will be those who will explain why that was always the most likely result. Such is the nature of punditry.

But today, all is uncertain.

On the face of it, it would seem that Harris should win. Trump does not seem stronger than he did four years ago – or two years ago when his endorsed candidates did badly. He is also a more divisive figure than he was when he won eight years ago, and he is against a less divisive candidate.

But, we are not in times where such a rational view has much purchase. We are in a period of populism and hyper-partisanship and disinformation, of joyful cruelty and illiberal frenzy. One can too easily imagine Trump winning. Less likely things have happened in the United States and around the world in recent years.

And if so, we will have an extraordinary situation of a president with criminal sanctions and facing criminal trials using the might of his office to reduce his exposure to any proceedings.

And we will have a president who boasts of wanting to also use the might of his office against political enemies, both personal and general.

The only liberal hope would be that, again, he is too lazy to follow-through on his threats, and that the swings he takes will be on the golf course, and not from the Oval Office.

In the days, weeks and months to come, things may be clearer – though even that cannot be said with absolute certainty – but as of today, things are unclear and they are worrying.

So it seemed to be a moment worth recording, using this blogpost as a postcard.

And to adapt the wording of a postcard: I wish we weren’t here.

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