Skip to content

The Law and Policy Blog

Independent commentary on law and policy from a liberal constitutionalist and critical perspective

Donate

You can support this independent law and policy commentary by PayPal

Subscribe

Please enter your email address to receive notifications of new stuff by me here and elsewhere.

Pages

  • About
  • Comments Policy

Categories

Recent Posts

  • A close reading of the “AI” fake cases judgment 9th May 2025
  • How the Trump administration’s “shock and awe” approach has resulted in its litigation being shockingly awful 22nd April 2025
  • How the United States constitutional crisis is intensifying 17th April 2025
  • A note about injunctions in the context of the Abrego Garcia case 14th April 2025
  • How Trump is misusing emergency powers in his tariffs policy 10th April 2025
  • How Trump’s tariffs can be a Force Majeure event for some contracts 7th April 2025
  • The significance of the Wisconsin court election result 2nd April 2025
  • “But what if…?” – constitutional commentary in an age of anxiety 31st March 2025
  • A significant defeat for the Trump government in the federal court of appeal 27th March 2025
  • Reckoning the legal and practical significance of the United States deportations case 25th March 2025
  • Making sense of the Trump-Roberts exchange about impeachment 19th March 2025
  • Understanding what went on in court yesterday in the US deportations case 18th March 2025
  • “Oopsie” – the word that means the United States has now tipped into a constitutional crisis 17th March 2025
  • Oh Canada 16th March 2025
  • Thinking about a revolution 5th March 2025
  • The fog of lawlessness: what we can see – and what we cannot see – in the current confusions in the United States 25th February 2025
  • The president who believes himself a king 23rd February 2025
  • Making sense of what is happening in the United States 18th February 2025
  • The paradox of the Billionaires saying that Court Orders have no value, for without Court Orders there could not be Billionaires 11th February 2025
  • Why Donald Trump is not really “transactional” but anti-transactional 4th February 2025
  • From constitutional drama to constitutional crisis? 1st February 2025
  • Solving the puzzle of why the case of Prince Harry and Lord Watson against News Group Newspapers came to its sudden end 25th January 2025
  • Looking critically at Trump’s flurry of Executive Orders: why we should watch what is done, and not to be distracted by what is said 21st January 2025
  • A third and final post about the ‘Lettuce before Action’ of Elizabeth Truss 18th January 2025
  • Why the Truss “lettuce before action” is worse than you thought – and it has a worrying implication for free speech 17th January 2025
  • Of Indictments and Impeachments, and of Donald Trump – two similar words for two distinct things 16th January 2025
  • Why did the DoJ prosecution of Trump run out of time? 14th January 2025
  • Spiteful governments and simple contract law, a weak threatening letter, and a warning of a regulatory battle ahead 13th January 2025
  • 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 1st January 2025
  • 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 31st December 2024
  • “Twelfth Night Till Candlemas” – the story of a forty-year book-quest and of its remarkable ending 20th December 2024
  • An argument about Assisting Dying – matters of life and death need to be properly regulated by law, and not by official discretion 28th 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 18th November 2024
  • 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
  • A postcard from the day after an election: capturing a further political-constitutional moment 6th November 2024
  • A postcard from the day of an election – capturing a political-constitutional moment 5th November 2024
  • “…as a matter of law, the house is haunted” – a quick Hallowe’en post about law and lore 31st October 2024
  • Prisons and prisons-of-the-mind – how the biggest barrier to prisons reform is public opinion 28th October 2024
  • A blow against the “alternative remedies” excuse: the UK Supreme Court makes it far harder for regulators to avoid performing their public law duties 22nd October 2024
  • What explains the timing and manner of the Chagos Islands sovereignty deal? 20th October 2024
  • Happy birthday, Supreme Court: the fifteenth anniversary of the United Kingdom’s highest court 1st October 2024
  • Words on the screen – the rise and (relative) fall of text-based social media: why journalists and lawyers on social media may not feel so special again 30th September 2024
  • Political accountability vs policy accountability: how our system of politics and government is geared to avoid or evade accountability for policy 24th September 2024
  • On writing – and not writing – about miscarriages of justice 23rd September 2024
  • Miscarriages of Justice: the Oliver Campbell case 21st September 2024
  • How Taylor Swift’s endorsement of Harris and Walz is a masterpiece of persuasive prose: a songwriter’s practical lesson in written advocacy 11th September 2024
  • Supporting Donald Trump is too much for Richard Cheney 7th September 2024
  • A miscarriage of justice is normally a systems failure, and not because of any conspiracy – the cock-up theory usually explains when things go wrong 30th August 2024
  • Update – what is coming up. 29th August 2024
  • Shamima Begum – and ‘de jure’ vs ‘de facto’ statelessness 21st August 2024
  • Lucy Letby and miscarriages of justice: some words of caution on why we should always be alert to the possibilities of miscarriages of justice 19th August 2024
  • This week’s skirmish between the European Commission and X 17th August 2024
  • What Elon Musk perhaps gets wrong about civil wars being ‘inevitable’ – It is in the nature of civil wars that they are not often predictable 7th August 2024
  • How the criminal justice system deals with a riot 5th August 2024
  • The Lucy Letby case: some thoughts and observations: what should happen when a defence does not put in their own expert evidence (for good reason or bad)? 26th July 2024
  • And out the other side? The possible return of serious people doing serious things in law and policy 10th July 2024
  • What if a parliamentary candidate did not exist? The latest odd constitutional law question which nobody has really thought of asking before 9th July 2024
  • The task before James Timpson: the significance of this welcome appointment – and two of the obstacles that he needs to overcome 8th July 2024
  • How the Met police may be erring in its political insider betting investigation – and why we should be wary of extending “misconduct of public office” to parliamentary matters, even in nod-along cases 28th June 2024
  • What you need to know about commercial regulation, in the sports sector and elsewhere – for there is compliance and there is “compliance” 25th June 2024
  • Seven changes for a better constitution? Some interesting proposals from some good people. 24th June 2024
  • The wrong gong 22nd June 2024
  • The public service of an “Enemy of the People” 22nd June 2024
  • Of majorities and “super-majorities” 21st June 2024
  • The strange omission in the Conservative manifesto: why is there no commitment to repeal the Human Rights Act? 12th June 2024
  • The predicted governing party implosion in historical and constitutional context 11th June 2024
  • Donald Trump is convicted – but it is now the judicial system that may need a good defence strategy 1st June 2024
  • The unwelcome weaponisation of police complaints as part of ordinary politics 31st May 2024
  • Thoughts on the calling of a general election – and on whether our constitutional excitements are coming to an end 29th May 2024
  • Another inquiry report, another massive public policy failure revealed 21st May 2024
  • On how regulating the media is hard – if not impossible – and on why reviving the Leveson Inquiry may not be the best basis for seeing what regulations are now needed 4th May 2024
  • Trump’s case – a view from an English legal perspective 24th April 2024
  • Law and lore, and state failure – the quiet collapse of the county court system in England and Wales 22nd April 2024
  • How the civil justice system forced Hugh Grant to settle – and why an alternative to that system is difficult to conceive 17th April 2024
  • Unpacking the remarkable witness statement of Johnny Mercer – a closer look at the extraordinary evidence put before the Afghan war crimes tribunal 25th March 2024
  • The curious incident of the Afghanistan war crimes statutory inquiry being set up 21st March 2024
  • A close look at the Donelan libel settlement: how did a minister make her department feel exposed to expensive legal liability? 8th March 2024
  • A close look at the law and policy of holding a Northern Ireland border poll – and how the law may shape what will be an essentially political decision 10th February 2024
  • How the government is seeking to change the law on Rwanda so as to disregard the facts 30th January 2024
  • How the next general election in the United Kingdom is now less than a year away 29th January 2024
  • Could the Post Office sue its own former directors and advisers regarding the Horizon scandal? 16th January 2024
  • How the legal system made it so easy for the Post Office to destroy the lives of the sub-postmasters and sub-postmistresses – and how the legal system then made it so hard for them to obtain justice 12th January 2024
  • The coming year: how the parameters of the constitution will shape the politics of 2024 1st January 2024
  • The coming constitutional excitements in the United States 31st December 2023
  • What is often left unsaid in complaints about pesky human rights law and pesky human rights lawyers 15th December 2023
  • A role-reversal? – a footnote to yesterday’s post 1st December 2023
  • The three elements of the Rwanda judgment that show how the United Kingdom government is now boxed in 30th November 2023
  • On yesterday’s Supreme Court judgment on the Rwanda policy 16th November 2023
  • The courts have already deflated the Rwanda policy, regardless of the Supreme Court judgment next Wednesday 10th November 2023
  • The extraordinary newspaper column of the Home Secretary – and its implications 9th November 2023
  • Drafts of history – how the Covid Inquiry, like the Leveson Inquiry, is securing evidence for historians that would otherwise be lost 1st November 2023
  • Proportionality is an incomplete legal concept 25th October 2023
  • Commissioner Breton writes a letter: a post in praise of the one-page formal document 11th October 2023
  • “Computer says guilty” – an introduction to the evidential presumption that computers are operating correctly 30th September 2023
  • COMING UP 23rd September 2023
  • Whatever happened to ‘the best-governed city in the world’? – some footnotes to the article at Prospect on the Birmingham city insolvency 9th September 2023
  • One year on from one thing, sixteen months on from another thing… 8th September 2023
  • What is a section 114 Notice? 7th September 2023
  • Constitutionalism vs constitutionalism – how liberal constitutionalists sometimes misunderstand illiberal constitutionalism 24th August 2023
  • Performative justice and coercion: thinking about coercing convicted defendants to hear their sentences 21st August 2023
  • Of impeachments and indictments – how many of the criminal indictments against Trump are a function of the failure of the impeachment process 15th August 2023
  • A note of caution for those clapping and cheering at the latest indictment of Donald Trump 8th August 2023
  • Witch-hunt (noun) 2nd August 2023

Archives

Masterdon link

Mastodon

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

14th November 2024

*

LAUNCELOT: I will send help as soon as I have accomplished a daring and heroic rescue in my own particular…

CONCORDE: Idiom, sir?

LAUNCELOT: …idiom!

– Monty Python and the Quest for the Holy Grail

*

Last week, before the US presidential election, there was uncertainty.

(This blog recorded that moment here.)

Few if any people had any idea about what would happen next.

Now many people are getting used to the news of the election, even if they are not happy (to say the least) with what happened.

*

For many, the re-election of Donald Trump as president was not how the story of 2016 was supposed to end.

His presidency was supposed to have been a one-off, an aberration. It was to be regarded as a moment of electoral madness, albeit one which has had unfortunate lingering structural effects for the composition of the supreme court and other judicial benches for at least a generation.

In this way the story was seen as similar to that of Brexit in the United Kingdom, where another 2016 moment of electoral madness also had unfortunate lingering structural effects – in that case of the United Kingdom being outside the European Union for at least a generation.

And now, that perhaps comforting sense of distance has been snatched away.

It is instead happening again.

*

“Curiously enough, the only thing that went through the mind of the bowl of petunias as it fell was, Oh no, not again.”

– The Hitchhiker’s Guide to the Galaxy, by Douglas Adams

*

This time round, of course, the rookies of the first presidency are now seasoned veterans – with four years’ experience and a further four years’ reflection of the failures of the first presidency.

*

In 1852, Karl Marx wrote of the return of a Napoleon Bonaparte to power in France (emphasis added):

“Hegel remarks somewhere that all great world-historic facts and personages appear, so to speak, twice. He forgot to add: the first time as tragedy, the second time as farce. Caussidière for Danton, Louis Blanc for Robespierre, the Montagne of 1848 to 1851 for the Montagne of 1793 to 1795, the nephew for the uncle. And the same caricature occurs in the circumstances of the second edition of the Eighteenth Brumaire.”

Given the mishaps of the first Trump presidency, it looks like Marx’s famous maxim should now be adapted to read “the first time as farce, the second time as tragedy”.

*

“Here’s where the story ends
Oh, here’s where the story ends

It’s that little souvenir, of a terrible year, which makes my eyes feel sore”

– The Sundays

*

But.

Nothing is certain in human affairs, and the new presidency may not actually go the way its supporters hope (and the rest of us fear).

Over on Bluesky, the always thoughtful and perceptive “The Stylite” commenter averred the following:

In 2019 in the United Kingdom, of course, the gods punished Boris Johnson by granting him what he wanted – a huge majority and a general election mandate. The “big dog” caught the car.

And soon Johnson was gone, not only from Downing Street but also from Parliament.

What happened in 2016 had created an opportunity for the populists – and 2019 was when that opportunity was flunked.

*

Could 2024 be the 2019 of the United States?

In the United States, Trump and the Trumpites are generally oppositional – grievance-mongers and complainers about the Washington elite and so on.

It is not a mindset that adapts well to actual government.

And although there is “Project 2025” – there is otherwise little sense of what the new administration will actually do. The early appointments do not indicate any great seriousness.

Will the gods punish Trump and the Trumpites with also giving them what they want?

*

Who knows.

But whatever happens, the old story of Trump’s election in 2016 being a one-off has to be replaced with a new story – one which has not taken shape.

And until and unless those opposed to Trump can make sense of what has happened, then there is little chance that they will revive to take advantage of any failures and disappointments in what is to come – to escape this dreadful moment.

*

CONCORDE: Quickly, sir! This way!

LAUNCELOT: No, it’s not in my idiom! I must escape more….

CONCORDE: Dramatically, sir?

LAUNCELOT: …dramatically!

– Monty Python and the Quest for the Holy Grail

 

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Posted on 14th November 2024Author David Allen GreenCategories United States Law and Policy

13 thoughts on “New stories for old – making sense of a political-constitutional rupture”

  1. Adam says:
    14th November 2024 at 13:17

    Are we heading for a ‘Yes Minister’ scenario in US politics? Appointing people who don’t know how to ‘work the machine’, and trying to get rid of the machine itself – career civil servants – seems to run the risk of not much getting done.

    Reply
    1. John Chadwick says:
      14th November 2024 at 15:13

      In the sense of getting constructive and useful stuff done, then yes, you may be right. ‘Yes Minister’ politicians were pretty powerless in the hands of wily Sir Humphrey.
      But our American cousins seem to have a mandate over the system in wreaking havoc and stuffing powerful jobs with placemen/ women, creditors and worse.
      But often it seems the UK is USA five years behind.
      God help us all.

      Reply
  2. Scurra says:
    14th November 2024 at 14:27

    There’s the argument that there is already catastrophically low trust in institutions; having amateurs in charge will not restore that trust but will make it worse, meaning that when there is an administration that actually wants to do stuff, they will no longer have the ‘public buy-in’ that will enable them to do so. Which means that the burn-it-all-down brigade will have won regardless of whatever rear-guard action the rest of us may fight.
    And now, some music.

    Reply
  3. Mike T says:
    14th November 2024 at 15:04

    Trump spent much of the last presidency in his Tower of gold ornaments and fittings, in a silk dressing gown watching Fox news incessantly. He hates – beyond words – anyone he suspects of trying to control him; hence the endless parade of new appointments and broken alliances, the allegations of betrayal.

    David may well be correct in thinking that the latest Presidential team may have adapted, learned how to ‘manage’ him with charm and flattery (he is said to only respect the views of billionaires), but I suspect that that is nearly impossible over any length of time.

    Unlike his first incumbency, this is his ‘legacy term’. Most commentatators believe that it is only the sacred Constitution that holds the USA together, despite its radically sundered socio-economics and profound cultural rifts.

    I think we will shortly discover if President Trump is amongst them.

    Reply
  4. Alison R Noyes says:
    14th November 2024 at 15:12

    “This is the way the world ends
    Not with a” whimper “but a” bang.”

    Reply
  5. Michael Pryor says:
    14th November 2024 at 15:58

    When you look at what they say they will do, and how hugely ambitious and complex it is, you can’t help wondering if they will get bogged down. They intend to deport in excess of 10m people, but I believe that no US government has ever deported as many as 1m in one year. How are they going to do 10m, how long will it take them, and at what direct and indirect cost? Also, how will the ‘law of unintended consequences’ strike when the theory of Musk’s cuts to budgets hits the practical road of cutting government services? Life is complicated, government more so, and a politician’s willingness to suggest that there are radical simple solutions tends to be directly inverse to their understanding of how government works. The trouble is that when the Trumps of this world fail, it’s the fault of the ‘deep state’, or the ‘swamp’, leaving their supporters harbouring revolutionary thoughts based on little more than wishful thinking.

    Reply
    1. Scurra says:
      14th November 2024 at 23:07

      Someone has suggested that what may well happen is that they will pretend to start the process (with some high-profile media blitz raids), and then claim that, oh dear, it can’t be done but instead that all “illegals” will become some sort of “indentured servants” (yeah, you know.) That way they can be returned to the jobs that they are doing (which are necessary) but now with even less than the virtually zero rights they had before.
      It can’t possibly work, but I’ve been trying to think of ways they can claim they’ve done what they promised, and this seems like an alarmingly plausible method.

      Reply
    2. Chris says:
      15th November 2024 at 00:26

      If it is true that for evil to triumph, all that suffices is that good men do nothing, then the trumpists don’t actually have to fulfil much of their stated agenda.

      Their primary weapon – ‘control’ of the Supreme Court – is in place, and using that power, they can limit the amount of progressive activity against them.

      They don’t have to deport 10 million people – they can just make life miserable for them (and also encourage the populace to do so), and prevent most attempts to counteract that.

      Reply
  6. Michael Dale says:
    14th November 2024 at 19:00

    Those whom the Gods wish to destroy they let them win an election.

    Reply
  7. richard says:
    15th November 2024 at 09:36

    What has happened in America is really the fault of the Brits !

    When those Americans refused to dig into their own pockets to pay you taxes for providing their defence you simply cast them adrift in1776 to fend for themselves and just look at the mess you have created !

    Your leaders in Britain today should be apologising to the whole world and putting together some sort of military operation to save America from becoming an authoritarian state and a scourge on macro economic growth.

    History and Economics can be interpreted in whatever way you wish and this is my point. Sadly I think that the only thing that cannot be contested is that some innocent people are going to die and many are going to be poorer which has always been the case.

    Reply
    1. Dan L says:
      15th November 2024 at 15:36

      That is an interesting angle. I am not sure that Britain let the USA slip its moorings. There was a bit of a war over the issue. It might not be the war that Americans like to think it was – it was more of a civil war between two different sets of British people, with the French on one side. And they were actually rebelling against the British parliament rather than the Crown – George III and North were much less bullish about the importance of getting the colonies to pay their taxes than the Houses of Parliament were.

      You are completely right that history can be used to support many arguments. And the victors usually write it.

      Reply
    2. Gemma says:
      16th November 2024 at 04:58

      It’s not the British people’s responsibility to bail out America, a gigantic country compared to our small one because they chose to IGNORE a wannabe dictator and not take him seriously. Make him a celebrity. Allow him to run not once but f****ing twice all while knowing he is a felon, a traitor inciting acts of treason.

      And then when he is re-elected and it is pretty certain that not only was there huge interference from Russia, but the election was also rigged in Trumps favour – and to make all of that worse it’s known he is colluding with Russia and it’s well known now that his plan is to destroy the country and harm millions of people. And still nobody in America does anything. The inaction of your President, the Vice President, the Pentagon, and many others at the top of the food chain are fully accountable for this. They swore an oath to protect Americans and instead they are letting it continue as it becomes increasingly clear that he is the next Hitler.

      Britain, a very small country already had to fight not one but two world wars against Hitler.,,including at times by themselves as home guards. We do not have anywhere near the money, the military, the resources that America does. It’s actually pathetic that one of the biggest countries in the world would expect one of the smallest to bail them out when they could sort this out themselves and are choosing not to.

      Trump in power with America doing f**k all to stop him entering the White House are already putting Britain and many other countries in significant risk of another world war…and worse still when Trump exits NATO which he will the British and the other NATO will frankly have to focus on their own defences and find ways to fill the gap of America abandoning them.

      Not only all of that but what you are talking about was what 400 years ago!?!?!? Give me a break. The British of the day are not accountable to what our extremely distant ancestors did.

      Reply
  8. Jim2 says:
    17th November 2024 at 11:50

    I confess to a malicious hope that Trump would win.

    “Democracy is the theory that the common people know what they want, and deserve to get it good and hard.” — H. L. Mencken.

    And “Never interrupt your enemy when he is making a mistake” a quote attributed to Napoleon Bonaparte.

    The interesting thing is that many elections become a near 50/50 split. Obviously when run by publicity merchants and worse the merchandise will be packaged to appeal to the most and the worst. A weakness of FPTP systems.

    But ‘buy on the rumour, sell on the news’. I am pretty sure Trump will run into the weeds in 6 months and flail around until the following election. That nice Mr Musk may regret hitching his wagon to a bunch of mountebanks and charlatans who seem to have got their training in the dodgier law schools and accounting firms.

    Keep a close eye on the family silver. O what japes we shall have.

    Reply

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Post navigation

Previous Previous post: The shapes of things to come – some thoughts and speculations on the possibilities of what can happen next
Next Next post: The illiberalism yet to come: two things not to do, and one thing to do – suggestions on how to avoid mental and emotional exhaustion
Proudly powered by WordPress