Constitutions and court-packing

16th April 2021

Over in the United States there is a discussion about ‘court-packing’.

In particular, the question is about the new president should seek to nominate additional justices to the supreme court.

Some liberals and progressives are aggrieved at the current composition of the court.

A number of justices were nominated by Republican presidents who had not won a majority of the popular vote.

The Republican majority in the senate delayed one vote on a nomination and then rushed through another, with no regard to political consistency.

From a liberal and progressive perspective, these grievances are well-made.

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But.

From a constitutionalist perspective, there was nothing unconstitutional in a (Republican) president nominating new justices and a (Republican) senate deciding when to have the votes.

Both the delayed vote and the rushed confirmation were politically distasteful and discrediting.

But they were not unconstitutional.

Conservatives, however, should not take too much heart from this – as there is also nothing inherently unconstitutional about a president seeking to add justices.

This is because the constitution (though not federal legislation) is silent on the maximum number of supreme court justices.

If the Republican shenanigans about the appointment of supreme court justices was within the scope of the constitution, so may be any attempt to add new justices.

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A more fundamental question is about the role of the supreme court.

On the issue of abortion, for example, liberals and progressives have long depended on supreme court jurisprudence, especially Roe v Wade.

Yet it would be better and more sustainable to have fundamental rights sets out in legislation, rather than on the fragile basis of supreme court decisions.

A conservative majority on the supreme court is only as illiberal as the questions that will come before it.

If liberal and progressive policies are promoted and implemented by the route of legislation rather than litigation, then a conservative majority on the supreme court is less of a concern.

Liberal and progressive policies are always better secured by means of legislation rather than by court rulings.

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Do ‘Appeals for Calm’ work?

8th April 2021

Another evening of disturbances in Northern Ireland.

And so another round of ‘appeals for calm’.

Of course: such a call is the responsible thing to do – and nothing in this post should be taken to gainsay this.

But do such appeals actually work?

Does this – almost ritualistic – reflexive speech act ever have the intended effect?

And if so, how?

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A cynic may contest that one function of ‘appealing for calm’ is to just give something ‘community leaders’ something to say and do – a gesture as empty and meaningless as ‘thoughts and prayers’.

As such there could almost be a circular definition – a ‘community leader’ is the person who ‘appeals for calm’, and ‘appealing for calm’, is what a ‘community leader’ does – thereby a ‘community leader appealing for calm’ is almost a tautology.

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But such cynicism may be misplaced, for there appear to be many examples of appeals for calm that have had efficacy:

And from my home city of Birmingham:

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So there are historical instances where the ‘appeal for calm’ seems to have had the intended political and social effect – though of course there may be other features present.

But the ‘appeal for calm’ has another important function.

And this is that it will be significant when the expected speech act is not made by a particular individual.

Here we have an example from just three months ago:

Silence as a signal.

As so often with language and politics, it can be more important when certain words and phrases are not used than when they are.

This is true not only for formal texts such as laws, but also for rhetorical acts in certain situations.

An ‘appeal for calm’ thereby might or might not work – but a failure or obvious refusal to ‘appeal for calm’ can have unwelcome consequences.

Appealing for calm is therefore an important piece of political behaviour – both for what it can achieve and also for what may happen if the appeal is not made.

Words matter, but so does silence.

***

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Now there are worrying calls for restricting the franchise

7th April 2021

Over at the American site National Review there is a call – in all seriousness – for the franchise to be restricted.

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(‘Don’t give oxygen to such things,’ demand those unaware that ‘not giving oxygen’ to Trumpism and Brexit did nothing to stop the rise of such notions – but this is a law and policy blog and it exists to offer comment on such developments.)

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The contention at the National Review moves from the fact that as there are certain restrictions on voters – for example, felons – to urging that there should be other restrictions.

The entire piece is a practical exercise in political sophistry.

Yet it was commissioned for and published on a well-known website.

It is an attempt to re-open debates that one would have thought were long settled.

It is nothing less than an effort to re-impose Jim Crow type voting restrictions.

It is a dangerous development.

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This law and policy blog is written from a liberal rather than a democratic perspective.

That is say that there are certain things – such as fundamental human rights – that should not be subject to votes.

Even if a majority of people supported the torture of one human being, that torture would still be absolutely wrong.

Such a liberal perspective is alert to and wary of the consequences of populism and demagogues and majoritarianism.

Democracy can be illiberal – and just because a thing has a democratic mandate, it would not make a thing that is fundamentally illiberal right and proper.

But.

When things are subject to democratic oversight and control, then the votes should be equal and the franchise as universal as possible, and there should not be ‘super-voters’ with more democratic power than others.

In the United Kingdom, it actually used to be the case that such privileged voters did exist – those with more of a ‘stake’ in the community would/should have a better chance of a vote – and these were bog-standard arguments in the lead up to the 1832 reform act.

In the United States, such arguments were used to in effect disenfranchise slaves and those descended from slaves.

The anti-democratic arguments now being put forward have not really been put forward so earnestly and with such force since the 1800s.

It is almost as if the ‘march of democracy’ has not only halted but is now retreating – a corrective to the simple notion of linear political progress.

Authoritarianism and anti-democracy, like illiberalism, has never really gone away – it just was not so prominent for a while, at least in the United Kingdom – making liberals and progressives complacent.

Perhaps such anti-democratic views are just a blip – and we will carry on heading towards the right side of history.

Or perhaps there is no natural line of political progression – and every generation has to win the arguments for liberalism and democracy afresh.

The post-2016 anti-democratic, illiberal turn is not over yet.

Brace, brace.

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The acquittal of Donald Trump – a silver lining

St Valentine’s Day, 2021

Of course: former President Donald Trump should have been convicted yesterday.

The reasons for this are neatly summarised in this statement by one of the republican senators who voted to convict on impeachment:

If anything justified a conviction on impeachment, and thereby a disqualification from holding office again, then it was what happened on 6 January 2021.

Yet Trump was acquitted.

Whatever the reasons for his acquittal – and it is difficult to see anything other than hyper-partisanship as the motivation for those voting against conviction – the brute fact remains.

This impeachment failed to result in a conviction.

And so Donald Trump goes from being the only president of the United States to have been impeached twice to now also being the only president to have been acquitted twice.

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Failure sucks, defeat sucks.

It was absolutely the right thing to do for the house of representatives to impeach Trump.

And nothing in this post should be taken to mean that it is somehow a good thing in and of itself that the trial on impeachment failed to obtain a conviction.

But.

There is a silver lining.

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An impeachment is and should be an exceptional thing – it means that an official (or former official) faces a sanction other than in the normal course of the operation of the constitution.

So, for an elected office holder, it means a sanction other than removal by means of the election cycle (or term limits).

And for a former elected office holder, disqualification means that he or she cannot be elected again, regardless of their popularity.

Impeachment and disqualification mean a thing so bad has happened that it should not just be left to the voters at the next election.

One problem, however, of Trumpism – that authoritarian nationalist populism for which some fairly would use the ‘F’ word –  is that it would not have automatically have disappeared if there had been a conviction.

Trump and Trumpism are not going away.

Trumpism – and Trump himself – would have weaponised the conviction as a mere technicality – a Washington device to prevent Trump from standing again in four years’ time.

It would have been presented as – and no doubt widely seen as – an attempt to defeat Trump and Trumpism by non-electoral means.

A stab in the back.

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Trump and Trumpism are not going to be defeated just by constitutional procedures.

Instead: Trump and Trumpism have to be defeated electorally, and be seen to be defeated electorally – and, if need be, this has to be done again, and again, and again.

Trump and Trumpism have to fail politically – and to keep on being seen to fail politically.

For it is in the nature of Trumpism that any other setback will be exploited as evidence that the ‘elite’ are somehow frustrating the supposed will of the people.

Of course, this is not easy – and Trumpists are are already ‘poisoning the wells’ by seeking to discredit the electoral system itself.

But they would not even have to resort to this if they could point to Trump’s exclusion from standing again by anything other than his own electoral unpopularity.

The failure to convict Trump – and thereby the failure to disqualify him from office – is a huge setback for liberal democracy.

But it is also an opportunity to electorally defeat him, and the horror for which he stands, all over again.

(And to aver this is a silver lining is certainly not to deny there is a dark cloud, for a dark cloud is always what any silver lining presupposes).

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During the first part of the Trump presidency there was the tendency for some liberals and progressives to look at the Mueller investigation as a form of cavalry of knights who would ride in and save us from our distress.

While more hard-headed and worldly campaigners knew that the next election had to be won precinct by precinct, in the environs of Atlanta and elsewhere.

The reason for this lazy tendency was the political trick of mind that prefers the easy quick-wins of legal and legalistic processes, instead of the work of winning elections (and referendums) and defeating illiberals.

(A similar frame of mind in the United Kingdom led to some looking to the Electoral Commission and police investigations of Leave campaigns to save us from the result of the 2016 referendum.)

And although the complaint is often made of legal commentary on public affairs that it overlooks and underestimates the political element, often the reverse is true.

Laws and legal process are tools for certain tasks – but they are not a substitute for what should be left to politics and elections.

So: yes, the second impeachment of Trump should have ended with conviction – we all know this.

That is what impeachment is for.

Trump should have been held directly accountable for what he did and did not do on 6th January 2021.

He should have been held accountable.

But impeachment is not the only form of accountability.

There may be better and more effective ways to hold him and what he stands for accountable too.

And any defeat will then be all the more emphatic.

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The ‘Jeremy Corbyn test’ or the ‘Hillary Clinton test’ – how to uphold constitutionalism in an age of hyper-partisanship

12th February 2021

Yesterday this blog averred that the twin perils of constitutionalism – at least from an English law perspective – were fogeyism and utopianism.

Fogeyism is the view that previous constitutional arrangements (either real or imagined) are inherently meritorious and are prescriptive and binding – and that any departure from these previous arrangements is unsound and should be resisted.

Constitutionalism in a tweed jacket.

Utopianism is the view that the only constitutional reforms worth contemplating are to achieve certain ideals: A written constitution! Abolition of the monarchy! Abolition of the House of Lords!

Constitutionalism waving a placard.

Both fogeyism and utopianism are normative approaches to constitutionalism – preoccupied with what they aver the constitution should be, rather than what it actually is.

But there is a far greater enemy for constitutionalism than either fogeysm or utopianism – both of which are at least often based on a sincere interest in constitutional affairs.

This greater enemy is hyper-partisanship.

For hyper-partisanship is the dark matter of constitutionalism.

It is anti-constitutionalism.

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Constitutionalism is the view that politics and government should normally take place within an agreed framework of principles and practices that regulate what happens when there are political tensions.

Of course, there will be – and should be – tensions within any polity – for that is the very stuff of politics.

Without tensions you do not even have politics.

The constitution of the polity then provides how these tensions are reconciled before they harden into contradictions: who gets their way, and on what basis.

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Hyper-partisanship, in turn, is the view that the constitution is – and should be understood to be – an entirely partisan device.

This goes beyond the normal partisanship of the party battle and the clash of politicians.

Hyper-partisanship weaponises the very constitution as part of those conflicts.

In particular, there will be no protection in the constitution – no check or balance – that cannot be dismissed as being politically motivated.

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The senate trial of the second impeachment of Donald Trump is an illustration of such hyper-partisanship.

There are republican senators who will vote to acquit Trump regardless of the merits of the case.

Similarly, no doubt, there will be democrat senators who will vote to convict Trump regardless of the merits of the case.

And this is notwithstanding that the constitutional purpose of impeachment is to address the issue of how to deal with certain behaviours outside of any election cycle.

If an otherwise impeachable offence could just be dealt with by the choices of electors then there would be no point having the power of impeachment.

Impeachments should not be partisan matters.

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Here it is perhaps useful to employ what can be called the ‘Jeremy Corbyn test’ – or, for the United States, the ‘Hillary Clinton test’.

That is to imagine in any constitutional controversy the politician(s) at stake being the opponents of the politician(s) at stake.

So, instead of Trump it would be Clinton.

And instead of Boris Johnson it would be Corbyn.

Would the current republican senators who are solemnly contending that the trial of Trump is ‘unconstitutional’ or insist that his conduct before and during the insurrection on 6 January 2021 was (literally) unimpeachable say the same, all other things being equal, if the proceedings were against Clinton?

Similarly, would political and media supporters of the government of the United Kingdom still nod-along (and indeed clap and cheer) if it were Corbyn threatening to break international law in respect of Northern Ireland?

Of course not.

Indeed, in respect of the Clinton example one only has to look at the casual republican partisanship of the impeachment of Bill Clinton in 1998 to show how easily roles can be reversed.

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So the basic test for any politician or media pundit when invoking any argument from constitutional principle should be simple.

Would that politician or media pundit still assert that principle, and just as emphatically, in respect of a political ally or opponent, as the case may be?

‘Would you say the same, if it were..?’

If so, the assertion of that constitutional principle has proper purchase, and it should be taken seriously.

And if not, like an unwanted book of David Hume, the contention should be committed to the flames, for invariably it will be sophistry and illusion.

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Legal words v everyday words – how can the killing of six prisoners between the presidential election and inauguration not be a ‘cruel and unusual’ punishment?

27th January 2021

Over at Prospect my column this month is on the grim topic of capital punishment and how former President Trump revived federal executions in the last seven months of his presidency – for my article click and look here.

In this post today I want to expand on the issue I touch on in the introductory paragraphs of that article: what is a ‘cruel and unusual punishment’?

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The reason this matters, of course, is the eighth amendment to the constitution of the United States, the relevant text of which provides: 

‘nor cruel and unusual punishments inflicted.’  

So if a punishment is cruel and unusual (and note it is ‘and’ and not ‘or’) then it is not only prohibited but also unconstitutional.

Some would contend (in my view rightly) that any use of the death sentence is, at least in modern times, a ‘cruel and unusual punishment’.

But here another part of the constitution is engaged.

The fifth amendment provides, among other things:

‘nor shall any person…be deprived of life, liberty, or property, without due process of law’.

This means that the constitution envisages that a person can be deprived of their life by process of law.

And as United States prosecutors, and supporters of the death penalty often point out, the fifth and the eighth amendments were adopted at the same time (as part of the bill of rights) and thereby should be read together.

Of course, there is a certain irony – cruel perhaps – that the fifth amendment was intended to have a generally liberal effect now has, in respect of capital punishment, an illiberal effect.

So the constitutional position is that capital punishment is permitted (fifth amendment) as long as it is not ‘cruel and unusual’ (eighth amendment).

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In my Prospect column I argue, by the modern everyday meaning of the words ‘cruel’ and ‘unusual’, that the six executions after Trump was defeated and before the new President Joseph Biden was inaugurated were indeed unusual and cruel.

This argument has three bases.

First, once Trump was defeated it was plain that there would be a new president within weeks who was pledged to end federal executions.

And so if the executions did not take place by 20th January 2021 then the prisoner would not be killed.

They would still be alive today.

Second, federal executions are not usual

Indeed, before Trump there had not been any federal executions for seventeen years and, before then, only three executions since 1966.

Click and have a look at this table.

Of course, executions take place in individual states – though twenty-two states have abolished the death penalty and in a further thirteen states there is either a formal or an informal moratorium.

But at a federal level executions were not, between 1966 and 2020, usual.

And by definition, what is not usual is unusual. 

Third, these final six executions were (especially) cruel.

The prisoner – and those charged with killing the prisoner – knew that there was now a race against time.

This deliberate putting to death of a human being had to be done within days, if it was to be done at all.

The circumstances of the six executions after the election but before inauguration indeed amounted to the application of mental torture as part of the punishment.

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But.

Although words have everyday meanings when those words are in a formal legal instrument, those words also have special legal meanings.

And the words ‘cruel’ and ‘unusual’ have been considered by the United States courts again and again.

Caselaw accumulates like barnacles on a shipwreck, so that little or nothing can now be seen of the original vessel.

The general position now is that whether a punishment is ‘cruel’ goes to the technique used at the point of death (and not the period leading to the execution), and if the punishment is still in use then it cannot be ‘unusual’ (which is fairly circular argument).

(The latest significant case in this grisly caselaw is here.)

What it is plain is that the wording of the constitutional prohibition is not autonomous – that it cannot be used in any given situation, free from the weight of caselaw.

A thing is only ‘cruel’ and/or ‘unusual’ if it accords with what these words mean as a matter of 230 years of caselaw, and not what those words mean in everyday discourse.

And this is both a merit and a flaw of placing rights in formal written instruments, such a a bill of rights.

On one hand, a person can point to the right and say with certainty that they have these fundamental protections; but on the other hand, formality can quickly become rigidity.

There is no easy solution to this problem of how one protects rights with a living, evolving legal instrument.

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None of this is to aver that the executions between the election and the inauguration were unlawful and unconstitutional – the fact that the United States supreme court did not prevent those killings indicates that the punishments were lawful and constitutional.

Nor does this post contend that the constitutional law of the United States can easily be recast so as to render such executions as unlawful and unconstitutional.

The purpose of this post is to illustrate the gap between everyday language and precise legal terminology: that, in these instances, things that are plainly cruel and usual are not ‘cruel and unusual’.

This leads to the wider point about using the law to guarantee rights and freedoms: a general legal instrument quickly attracts caselaw, and that caselaw scopes and often limits the meaning of that instrument.

And so one can end up with the vile spectacle of six human beings being deliberately slaughtered before 20th January 2021 because they would be safe from slaughter if they managed to live beyond that date, and that this horrific episode was, as a matter of law, neither cruel nor unusual.

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Why the first paragraph of the lawsuit brought by Dominion Voting Systems against Rudolph Giuliani is a splendid piece of legal drafting

26th January 2021

You would need a heart of stone not to laugh like a drain at the lawsuit brought by Dominion Voting Systems against Rudolph Giuilani.

The pleading is worth reading for its own sake, and the first paragraph – which, as this post will show, rewards re-reading – is a cracker.

But once one eventually stops laughing, what should one make of it?

Of course, the defendant Rudolph Giuilani is now regarded by many as a figure of political fun, a villain in the Trump pantomime.

But principle is – or should be – blind to the person to whom it applies.

So here is a thought experiment.

Imagine – for the sake of argument and exposition – that there was a corporation that provided voting machines and, unlike the plaintiff in this case, there was a serious and consequential issue as to the efficacy of the equipment.

And imagine that the political or media figure bringing loud attention to this issue was not the defendant in this situation but instead a credible and likeable politician or journalist.

Would you still clap and cheer if that noble figure was faced with a 107-page legal claim for $651,735,000 or some other absurdly precise amount?

Or would you re-tweet furiously about threats by corporates to whistleblowing and freedom of expression?

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So how can the court tell the good cases from the bad?

How can the court strike the right balance?

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This thread from American lawyer Mike Dunford sets out the legal challenges for Dominion Voting Systems:

And as would be the position with a similar case in England and Wales, you will see that the legal issue quickly becomes one of showing malice – and there it is called ‘actual malice’:

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At this point the non-lawyer will ask, understandably: what is malice?

And a lawyer will respond, frustratingly: it all depends.

But here it is interesting to now go back to the first paragraph of the the legal pleading of Dominion Voting System (and this is why it is worth re-reading):

“During a court hearing contesting the results of the 2020 election in Pennsylvania, Rudy Giuliani admitted that the Trump Campaign “doesn’t plead fraud” and that “this is not a fraud case.” Although he was unwilling to make false election fraud claims about Dominion and its voting machines in a court of law because he knew those allegations are false, he and his allies manufactured and disseminated the “Big Lie,” which foreseeably went viral and deceived millions of people into believing that Dominion had stolen their votes and fixed the election. Giuliani reportedly demanded $20,000 per day for that Big Lie. But he also cashed in by hosting a podcast where he exploited election falsehoods to market gold coins, supplements, cigars, and protection from “cyberthieves.” Even after the United States Capitol had been stormed by rioters who had been deceived by Giuliani and his allies, Giuliani shirked responsibility for the consequences of his words and repeated the Big Lie again.”

This is not just racy narrative – if you look carefully you will see that it is a clever attempt to show malice.

Giuliani said a thing he knew he could not say in court; he knew it would go viral; he had a financial incentive; and he was irresponsible in respect of its consequences.

Every sentence – every clause – of that well-crafted first paragraph is serving a purpose in showing that there was ‘actual malice’.

It is a lovely piece of legal drafting – enough to make one want to clap and cheer, regardless of the identity of the defendant.

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Corporations – especially those providing public services or supplying equipment for use in public services – should not have it easy when it comes to making legal threats.

Even when they are threatening pantomime villains.

Public figures, especially those in the worlds of politics and media, should have some protection when they are complaining of such corporations.

Even when those figures are pantomime villains.

The purpose of the law in these situations is to strike a balance – to provide for what both sides would need to show in court.

Here the corporation – rightly – cannot just sue because of damaging false statements, it may also need to show that there was malice.

And the lesson of the first paragraph of the pleading and of the rest of the complaint is that in certain circumstances this can be shown, at least arguably.

What comes of this case cannot be guessed at this time – and most civil claims tend to settle.

But Giuliani has a genuine legal fight on his hands here.

And you would need a heart of stone not to laugh like a drain.

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What codification of Roe v Wade means and why President Biden is right to support it

23rd January 2021

Yesterday the twitter account of the new president of the United States tweeted about abortion rights:

Around the same time the following statement was published by the White House:

“Today marks the 48th anniversary of the U.S. Supreme Court’s landmark ruling in Roe v. Wade.  

“In the past four years, reproductive health, including the right to choose, has been under relentless and extreme attack.  We are deeply committed to making sure everyone has access to care – including reproductive health care – regardless of income, race, zip code, health insurance status, or immigration status. 

“The Biden-Harris Administration is committed to codifying Roe v. Wade and appointing judges that respect foundational precedents like Roe.  We are also committed to ensuring that we work to eliminate maternal and infant health disparities, increase access to contraception, and support families economically so that all parents can raise their families with dignity.  This commitment extends to our critical work on health outcomes around the world. 

“As the Biden-Harris Administration begins in this critical moment, now is the time to rededicate ourselves to ensuring that all individuals have access to the health care they need.”

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But what would this “codification” actually mean?

And why should it be welcomed?

The starting point is the 1973 decision of the United States supreme court in Roe v Wade.

That decision held, in effect, that access to an abortion is a fundamental right under the constitution of the United States.

And as a right within the constitution then it is not open to any individual state to prohibit access to an abortion absolutely.

The decision did not preclude regulation of such access by individual states but they could not formally – or practically – ban it altogether.

The ultimate right – subject to regulation – of access to an abortion was that of the woman, and this right could not be removed by any state legislature.

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From a liberal perspective, it does not ultimately matter what the legal basis is for the fundamental right of access to an abortion.

The basis in the United States could be a supreme court judgment, or a provision in the constitution, or a federal law, or whatever.

The important thing is that there is a right and that it is effective and can be enforced.

That said, there is considerable merit in placing the right on a firmer basis than just a supreme court decision.

What a supreme court giveth, a supreme court can taketh away.

And although conservative judges in particular believe (supposedly) in the principle of stare decisis (that is, precedent) they often find ways to distinguish and set aside precedents when those precedents are liberal.

The conservative packing by former president Donald Trump of the supreme court and the federal judicial benches generally mean that it is increasingly likely that Roe v Wade could either substantially limited or even reversed.

And this is partly because the privacy right that the supreme court articulated in 1973 as the basis of the right of access to an abortion is not actually an express provision in the constitution.

It is a right which the 1973 supreme court found to be necessarily implicit in the constitution.

But the general problem with any right judicially implied into a legal instrument by one court is that it is conceivable that another court will not make the same inference.

And although the 1973 judgment was a welcome advancement, few would say that the reasoning of the justices has been generally accepted.

So the judgment of Roe v Wade stands there precariously, awaiting an assault by conservative lawyers and judges.

And if it falls, then the constitutional right of access to an abortion falls with it.

What a supreme court giveth, a supreme court can taketh away.

*

So what could be done?

Ideally, one would want a constitutional amendment.

If the right of access to an abortion was explicitly spelled-out in, say, an amendment to the constitution then the position would be placed beyond doubt.

And then no supreme court, however constituted and motivated, could do a thing about it (without breaching the constitution itself).

But this would be unlikely in practice, if not impossible.

There would not be sufficient support in congress and certainly not from a sufficient number of states for the constitution to be amended under Article 5 of the constitution.

The next best thing, however, is codification.

This means congress placing the right on a statutory basis at the federal level.

And this would be possible because, as with any express or implied right of the constitution, there is a basis for congress to legislate.

It is not a perfect solution.

It would still be possible for a supreme court to strike down such an act of congress as unconstitutional as it is possible for any other federal legislation.

But it would fortify the right: for instead of a conservative supreme court only needing to reverse the 1973 judgment it would also require striking down federal legislation that gave statutory effect to that right.

And although a right as fundamental as access to an abortion should never depend on mere majoritarianism – for even if abortion was prohibited by every state legislature there should still be a right of access of a woman to an abortion, as that is the nature of fundamental rights – it can be argued that endorsement by democratically elected politicians would also make it more difficult for judges to overturn the relevant legislation.

*

Of course, it is at this stage only a proposal – former president Barack Obama also put forward codification only to not go through with it.

But given the recent packing of the federal benches with conservative judges and what seems to be (and without any serious doubt is) a long-term co-ordinated judicial strategy by conservatives of reversing Roe v Wade, it is prudent for the right of access to an abortion to be codified.

Rousing liberal judgments are wonderful gladdening things – but they are shaky as the sole basis for any fundamental right.

No fundamental right should depend only on a majority of judges at a certain moment in time.

Roe v Wade is a great judgment – at least in its effect, if not its reasoning – but the right it articulates is becoming more vulnerable than it needs to be, and so that right should now be codified.

For what a supreme court giveth, a supreme court can taketh away.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

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The inauguration of a new president: mere ceremonial form and hard constitutional substance

21st January 2021

One of the few benefits of lockdown is that you are no longer expected to go to weddings and other ‘happy’ ceremonies.

Instead of days of tiresome travel and hours of boredom, one can watch the ceremony and speeches on a laptop for an hour or so and then go and do something more useful instead.

(For more on form vs substance regarding marriage ceremonies, see my 2011 New Statesman post.)

*

Much of this impatient disdain for mere ceremonial form can and should be applied to constitutional matters.

Certain symbolic events symbolise nothing other than symbolism is important only for the sake of symbolism.

Interesting perhaps for the fogeys and other enthusiasts, but often a bore for the rest of us.

And presidential inaugurations in the United States are usually fairly meaningless occasions, other than that they happen to be around the same time as when by automatic operation of law one presidential term ends and another one begins.

But the inauguration ceremony yesterday was different.

It was riveting.

*

Just as lockdown has had a few benefits notwithstanding the immense misery, so has the presidency of Donald Trump.

And one of those few benefits is that far more people now realise how the constitutional law of the United States works (and does not work) in practice.

Certain things before Trump were taken for granted to the extent that anyone realised those things existed at all.

Take, for example, what happens between a November presidential election and the January inauguration of a new presidential term.

The rights to recounts and re-run ballots; the certification of votes by each individual state; the appointment of electors for the electoral college and their obligations; and the congressional counting of the vote and certification of the winner.

Previously each of these steps – even with the contested 2000 result and Bush v Gore – was a mere formality.

One could have an informed interest in American politics and not know much or indeed anything about these obscure procedural steps.

Now many people know exactly the process that exists between the national vote and the start of a new presidential term.

And widespread knowledge about constitutional arrangements is a good thing.

It may be a bad thing for constitutional law to be exciting –  politics should take place within an agreed framework rather than constantly being about undermining that framework – but understanding the rules of any game is important for those taking part and those watching.

*

And we watched the ceremony yesterday with anxious scrutiny.

Few people in the future will realise just how nervous many of us were in the last hours and indeed minutes of the Trump presidency.

What would he do? 

What could happen?

Is it over yet?

(And indeed Trump issued another pardon with only minutes of his term to go.)

Even watching the chief justice swear in the new president was not enough: it still was not noon Eastern Standard Time.

The final one or two minutes seemed to last an eternity, even though the new president was well in to his acceptance speech.

And then: it was twelve noon EST.

Not since Charles Perrault’s Cinderella has there been a strike of twelve that produced such a wonderful general transformation.

It was over.

*

The greatest (if flawed) writer about the constitution of the United Kingdom – at least from an English perspective – Walter Bagehot made a distinction between the efficient and the dignified elements of a constitution.

Some who only know of this famous distinction misrepresent it as meaning that the dignified elements are somehow useless elements.

But this is not what Bagehot meant – what he actually said was:

“There are indeed practical men [and women] who reject the dignified parts of Government. They say, we want only to attain results, to do business: a constitution is a collection of political means for political ends, and if you admit that any part of a constitution does no business, or that a simpler machine would do equally well what it does, you admit that this part of the constitution, however dignified or awful it may be, is nevertheless in truth useless.

“And other reasoners, who distrust this bare philosophy, have propounded subtle arguments to prove that these dignified parts of old Governments are cardinal components of the essential apparatus, great pivots of substantial utility; and so they manufactured fallacies which the plainer school have well exposed.

“But both schools are in error. The dignified parts of Government are those which bring it force—which attract its motive power. The efficient parts only employ that power.”

He continued:

“[The dignified elements] may not do anything definite that a simpler polity would not do better; but they are the preliminaries, the needful prerequisites of all work. They raise the army, though they do not win the battle.”

In other words, it is not just important that institutions work well but they are legitimate and seen to be legitimate.

And thereby the purpose of any constitutional ceremony is not just an exercise in form but part of what confers legitimacy on those who exercise the power of the state.

Of course, we could have got by without any ceremony yesterday and just watched the clock run down in silent dread.

And of course, the ceremony was not ‘efficient’ – even the chief justice got the law wrong in that Biden was not yet the new president, at least for thirteen minutes.

But as Bagehot averred, to say part of a constitution is dignified is not to say that it is useless, but that it serves another purpose.

To be sworn in at the seat of the legislature by the head of the judiciary is a powerful indication of constitutional legitimacy, especially as it was at the very place where an insurrection happened just days ago.

This will not be enough for some Trump supporters, but it could not have been done better in the circumstances.

In more than one sense, therefore, the inauguration ceremony of Joseph Biden sought to bring dignity back to the government of the Unites States – not only in his personal manner but also in Bagehot’s sense of demonstrating to all those watching that this new presidency is constitutionally legitimate.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

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Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome. 

Beggaring the pardons – why the presidential power to pardon needs to be regulated

20th January 2021

Yesterday, on his last full day in office, President Donald Trump is reported as having issued seventy pardons, as well as having commuted seventy-three other sentences.

This in and of itself is not unusual: on his last day of office President Bill Clinton issued about twice as many pardons – including one for his brother.

Issuing a raft of pardons on one’s final day as president is now as established a tradition as the president pardoning a turkey on Thanksgiving.

Of the many things one should be annoyed or disappointed about Trump and his presidency, the mere fact of last-day questionable pardons is certainly not something unique to him.

Yet, Trump’s (actual and threatened) uses and abuses of pardons, and of his power to commute, do warrant further consideration, as they go to the heart of the relationship between the course of justice and the powers of the executive.

In essence: at what point do pardons cease to complement the justice system – showing mercy to those duly convicted – and become something else instead that undermines the justice system itself?

*

To beg for a pardon is to plead for forgiveness.

It is just that the phrase ‘I beg your pardon’ is so familiar – it now means little more than ‘can you please repeat?’ or ‘what the Dickens have you just said or done?’ – that we overlook what the word ‘pardon’ actually means – or should mean.

And to forgive an act or omission requires certainty as to what that act or omission was – else how do you know what is being forgiven?

Accordingly a pardon should be as exact in its particulars as an indictment – almost a mirror image.

A person has been convicted of and sentenced for [x] – and so it is [x] that is being forgiven.

The conviction would – or should – still stand as a public and formal finding of criminal culpability – but the convicted person would be relieved from the burden of the sentence.

It would also be implicit that an acceptance of a pardon was an admission of criminal guilt – else how can one be forgiven for a wrong, if there was no wrong in the first place?

All this is what a pardon should be about, from first principle of it being an exercise of forgiveness.

(A commutation of a sentence raises a different issue as an exercise of mercy, and does not require any implicit admission of guilt.)

*

But this is not what a presidential pardon is now understood to mean.

A presidential pardon is now, following President Gerald Ford’s pardon of President Richard Nixon for example, something that does not need to be exact in its particulars nor something that carries any implicit admission of guilt.

There does not even need to be a prosecution in place, or even envisaged.

A presidential pardon is now understood to be a ‘get out of jail, free’ card.

*

The use of the ‘understood to be’ qualification above touches on another aspect of presidential pardons – they are rarely litigated and so have not (yet) been regulated by the courts or effectively by congress.

There is significant legal uncertainty as to the scope of pardons that depart from the classic model of exactness in respect of the punishment being forgiven.

The pardon for Nixon, for example, may be a political precedent but it is not a judicial precedent.

A pardon the scope of which Ford granted to Nixon may not survive judicial scrutiny.

(The way a pardon presumably would be litigated is when a prosecution appealed a defendant using a (purported) pardon as a bar on proceedings.)

This may explain why Trump did not announce a self-pardon nor Nixon-like pardons for his family and associates. 

(There may also be other practical considerations, such being able to invoke the fifth amendment against self-incrimination, which would be difficult if you were protected from such incrimination.)

*

But the lack of regulation and case law raises another non-trivial possibility.

There is a fascinating piece at CNN about ‘secret pardons’.

And it is correct that there is nothing on the face of the constitution that requires a pardon to be publicly announced when it is granted.

Trump has also not complied with other conventions when granting pardons, and so there is not inherent reason why he would not flout the convention that a pardon be publicly announced.

If this happened, the first we would ever know of such a pardon would be if and when it was raised by a defendant as a bar to proceedings.

By which time this presidential term of Trump will be long gone.

And what could be done? 

Even impeaching Trump again (and again) would be pointless.

*

As was once averred, power tends to corrupt and absolute power corrupts absolutely.

And so it is not surprising that it is in the two areas where an executive has, in effect, absolute power – the bestowal of honours and the granting of pardons – that there is corruption.

Those with political power will always tend to do what they can get away with, unless they are checked and balanced.

(The principle that for every power there is an equal and opposite check and balance is – or should be – the essence of constitutionalism.)

On the face of the constitution of the United States it would appear that the power to grant pardons is absolute.

Yet such an absolute power would make a nonsense of the careful separation of powers set out in the constitution generally, and of the express obligation of the president that he or she ‘shall take Care that the Laws be faithfully executed’ (Article II, section 3) in particular.

All because there has not yet been regulation of this power does not mean that a supreme court or congress may not one day set out the scope of the presidential power of pardon that accords with the constitution as a whole.

*

If the word ‘pardon’ has drifted in meaning, so has the word ‘beg’.

It does not only mean ‘to plead’ – but also in the form ‘to beggar’ it can mean broadly ‘to reduce in value’: to ‘beggar belief’ is to say a thing is not worthy of belief, and to ‘beggar thy neighbour’ is to seek to aggrandise at the expense of a competitor.

In this way, Trump’s (actual and threatened) pardons – and other presidential pardons – can be seen as beggaring pardons.

But begging your pardon for that pun, there is now a compelling case for placing the power of presidential pardons on a basis so that they remain exercises of mercy to complement the course of justice, rather than undermining justice itself.

Such a congressional act or supreme court decision would be one good way for the presidency of Donald Trump to be remembered.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary please do support through the Paypal box above, or become a Patreon subscriber.

Suggested donation of any amount as a one-off or £4.50 upwards on a monthly profile.

*****

You can also subscribe for each post to be sent to you by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

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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.

Comments will not be published if irksome.