The primary purpose of a reasoned court judgment is not to be a historical document.
The primary purpose of a reasoned court judgment is for the here-and-now: it is a practical document to explain why the court made a particular order (or did not make an order) or otherwise disposed of the claim or matter before it.
To the extent to which that judgment contains anything of general interest to future generations of historians is (or should be) incidental
Yet.
Every so often there are judgments that you hope will speak to the ages.
Judgments to tell future generations about things in the here-and-now that they may not otherwise understand.
And the judgment handed down recently by Honorable Linda V. Parker of the United States district court for the eastern district of Michigan is such a judgment.
It is a judgment for the ages.
It is a judgment that (one hopes) will tell future generations that the American courts of our time had not gone completely mad.
It is a long judgment – but once you start reading it is compelling, and you are well into it before you realise.
The first paragraph is itself a banger:
And then it gets better, and better.
In essence: it sets out in readable detail how pro-Trump attorneys deceived the court again and again, and it sets out why that was again and again wrong.
Click on and read the judgment here – and (if it is the right word) enjoy.
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When I was at school in the 1980s, the well-meaning progressive teachers showed us the film Threads.
The purpose, no doubt, was to make us pupils think critically about the cold war and the (then) nuclear arms race.
The primary impact it had on me was, however, different – and this was because of how the film portrayed the telephones in the bunker.
The film gave me a life-long fascination about the nature of practical political authority and control.
Here on YouTube some helpful person has put together the bunker scenes from the film:
If you watch these scenes with special regard to the telephones, you will see the telephones going from an active means of communication, to an inactive means, to being discarded, and then to finally damaged beyond repair.
And this matches the collapsing political authority of those in the bunker.
To begin with there are other people at the end of the telephone, and then there is nobody, and then ultimately nobody cares – or knows.
The political authority of those in the bunker, like the communications, is cut off.
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The lesson I learned from this as a pupil was it was not enough to have people who want to be in control and to believe themselves to be in control – there also had to be infrastructure, and for there to be people to accept that control.
Without such infrastructure and deference, those ‘in control’ are akin to the motorist wriggling a gear stick or pressing the brakes when both have been disconnected.
Those ‘in control’ may as well be playing with some grand political simulator.
And so I became interested in processes and transmissions and logistics and policies and rules and laws, and less interested in personalities and partisanship.
To answer the question: just what happens when the telephone rings out but it is not answered?
I suspect that this not the intention of the film makers, or the teachers.
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I mention this because of the impotence many in the West now feel about the fall of Kabul.
There is a general sense that something should have been done.
Here is our current foreign secretary:
Foreign Secretary Dominic Raab says "no one saw this coming, we would have taken action if we had" regarding Taliban takeover of Afghanistan
All true: but even if we had the foresight, what could have been done?
Of course: the execution of the final departures could have been better.
But beyond the arrangements for the final exit, it is difficult to see what further control the West could have had.
I'm as depressed as anybody about what is happening at the moment in Kabul. I certainly think Biden could have handled it a lot better. But I do not have the confidence others seem to have that the Taliban could have been kept at bay indefinitely.
European leaders are right to see the collapse of Afghanistan as another blow to the credibility of the West. However, not a single one of them would lift (or did lift) a finger to prevent it.https://t.co/My68DeorAB
And part of the problem for the United Kingdom is that not only do we have no control, we also have no meaningful policy for what we could do.
Here, there are some hard truths on the lack of any meaningful United Kingdom policy in this RUSI post:
‘This week’s ignominy may be set instead against some of the blithe statements made just six months ago in the Integrated Review: that the UK will be ‘a problem-solving and burden-sharing nation’; that it already demonstrates a ‘willingness to confront serious challenges and the ability to turn the dial on international issues of consequence’; that the UK will embody ‘a sharper and more dynamic focus in order to adapt to a more competitive and fluid international environment’; and that it will ‘shape the international order of the future’.
‘The UK’s Afghanistan experience demonstrates none of this.
‘Instead, it speaks to a generation of political leaders who have too easily fooled themselves that being Washington’s most reliable military ally constitutes in itself an effective national strategy.
‘Such a relationship may be one element of an effective strategy, but it cannot simply be the strategy.’
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Yesterday this blog looked back to a 2017 Financial Times post where I put the old calls for ‘regime change’ together with other simple notions from the first part of this century, as part of a general politics of easy answers:
Since 2017, with the ongoing experience of Brexit but also with Covid and many other things, we still see the politics of easy answers.
The sense that all that needs to be done when something must be done is for politicians to want it to be done.
The hard and complicated work of policy and (meaningful) strategy is often not even an afterthought.
We have politicians in their modern-day bunkers, thinking that having telephones to hand will be enough for their will to be done.
But political power hangs on, well, threads.
And those threads snap easily, if they exist at all.
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Once upon a time geopolitics seemed so much easier.
As Christopher Hitchens commented back in 2001, after 9/11:
‘The Taliban will soon be history. Al-Qaida will take longer. There will be other mutants to fight. But if, as the peaceniks like to moan, more Bin Ladens will spring up to take his place, I can offer this assurance: should that be the case, there are many many more who will also spring up to kill him all over again.’
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I was one of those who nodded-along with Hitchens at the time, but I quickly realised the reality of ‘regime change’ did not correspond to what was said in sterling newspaper columns and comment pieces.
And by the time of the Iraq invasion (with which I did not nod-along) it was plain that no actual thought was going into what happened next in any of these adventures.
Now, twenty years after the invasion of Afghanistan, the west are retreating in circumstances which show that there was never any practical, sustainable plan for ‘regime change’.
Indeed, instead of a changed regime in Afghanistan, we have a regime resumed.
And the full resumption only took a day, after some twenty years of occupation.
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Back in 2017, at the Financial Times, I put the calls for ‘regime change’ together with other simple notions from the first part of this century, as part of a general politics of easy answers:
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I remember as a United Kingdom government lawyer around 2003/4 being asked to help on a commercial procurement matter involving the Coalition Provisional Authority in Iraq.
I did not have much idea what I was doing, though I did my best – and it was soon obvious that nobody at the Coalition Provisional Authority knew what they were doing.
I remember thinking at the time that it is one thing to clap and cheer at ‘regime change’ but for it to happen in reality was quite different.
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This is not to argue absolutely against military interventions – either ‘liberal’ or otherwise.
What it is an argument against, however, is the notion that ‘regime changes’ are easy, or even effective.
Interventions are not political exorcisms, where the demons are expelled forever.
Instead, the notion of ‘regime change’ is a form of magical thinking.
And it always was.
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As part of my research into slavery and the law, I want to ascertain the chronological parameters of the transatlantic slave trade.
At one end, in the sixteenth and seventeenth centuries, there is the emergence of the trade in the days when the legal system(s) were very different to now – with rights of action and forms of property with which many modern lawyers would not now be familiar.
But what of at the end?
Of course, we all know that the trade had (supposedly) ended by the early to mid nineteenth century.
But in fact the last victims of the trade were alive until modern times.
The last (known) living victim did not die until 1940 – within the lifetime of four currently serving United Senators
And if one looks at the lives of the last three of those who are known to have survived, you get some interesting insights into the role of (relatively) recent law in respect of transatlantic slavery.
The survivors names were Oluale Kossola (also known as Cudjo Lewis), Redohsi, and Matilda McCrear – see here, here and here.
The ‘legal’ insights one gets are:
– how transactions were still being made in Africa, and how the supply of slaves was still organised so as to meet demand;
– how the traders deftly evaded justice – by procedural delays, as well as destroying evidence and hiding the human evidence – and also by jury verdicts;
– how survivors did not have the automatic benefit of American citizenship after emancipation because they were born abroad; and
– how one of the survivors even sought compensation (presumably in the 1920s or 1930s) but the claim was dismissed.
These examples touch on modern legal issues – the existence of illegal markets, criminal prohibition and its avoidance (both in substance and by gaming procedure and evidence), rights of citizenship, and rights to compensation.
The story of the transatlantic slave trade lasted some five hundred years.
The story goes from the legal days of actions in trover and assumpsit to the laws that exist today.
It was far more extensive both in scope and duration than many would realise.
In a way, the story of the slave trade is the story of modern commercial law.
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This is a depressing post about law and policy, but it is one which is triggered by work I am doing on a particular project.
One of the things that I am researching and writing is about how lawyers made possible slavery and the slave trade – a topic that I wrote about at Prospect magazine, as well as in previous posts on this blog and on Twitter (see here and here).
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Of course: human beings are capable of being cruel to other human beings without laws or lawyers.
An individual person can coerce another person, can torture another person, can expropriate the possessions of another person – and so on – without any legal system or advisers in place.
That, unfortunately, appears to be the nature of our species – at least given the archaeological and historical record.
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For enslavement, torture, expropriation – and so on – to exist in any organised society (that is, say, a human grouping larger than Dunbar’s Number) requires the help of norms and rules.
Either such practices will not be prohibited or such practices will be positively facilitated.
In other words: slavery, torture and imperialism in any society depend on systems of rules being in place that enable them.
And in such modern societies, where the practice of law is usually a distinct profession, this in turn means that such practices are facilitated by lawyers.
Lawyers draft the relevant legal instruments, and lawyers then advise those who seek to rely on legal rights as set out in those instruments and otherwise.
And many of these lawyers did so (and some still do, for example, with the torture memoranda in the United States) with absolute moral neutrality – they are not here to gainsay the law, but to advise on what one can get away with under the law.
A similar legal infrastructure exists still in respect of defending the police and other state actors in respect of coercion and lethal force against civilians.
None of this – from slavery to systemic police brutality – none of this would be possible, but for laws and those who make those laws work.
Of course: the saving grace is that there are laws which (supposedly) prohibit each of these things, and there are lawyers who will challenge such laws and defend those affected.
And such liberal and progressive laws and lawyers should be celebrated.
But.
It has to be laws and lawyers which take on slavery, torture, imperialism, police brutality – and so on.
And this is because such things only exist in any organised society because of laws – and often lawyers – in the first place.
All that liberal and progressive laws and lawyers are taking away are what other laws and lawyers provided in the first place.
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The piece is by the law professor and former adviser to house of lords committee Alexander Horne.
It makes the point well that the supreme court is taking a more conservative, restrictive approach to public law cases – those are the cases that concern the legality of actions by public bodies – especially when those concern policy.
If so, then there will – in turn – be less need for the current government to ‘reform’ judicial review, the usual means by which the courts deal with public law cases.
If so, this may be significant – at least in its effects.
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The supreme court in the United Kingdom – unlike its American counterpart – does not hear many judicial review cases.
This is not least because there is no codified constitution against which the courts can assess the legality of the actions of state actors.
This in turn means that there is not really a small-c conservative, small-l liberal division in the politics of the supreme court.
Almost all the cases heard by the supreme court do not concern judicial review.
That said, the cases which the court selects to hear and then give emphatic judgments will usually have a powerful effect on the courts below – well beyond the force of any binding legal precedent.
This is a signal that will be understood by – and probably influence – the judges whose day-to-day work involves public law cases and judicial reviews.
It will also be noted by the lawyers who specialise in bringing (or not bringing) certain cases.
In effect: because of the signal from Lord Reed’s supreme court, fewer judicial reviews involving policy will be brought – and of those brought, fewer are likely to succeed.
There will, of course, be hardy lawyers and even judges that will still seek to apply anxious scrutiny to cases involving policy questions.
But those judges and lawyers will soon be in the minority.
And this effect will have a practical impact far greater than could be achieved by bill before parliament.
The days of any expansive approach to dealing with the legality of policies in judicial review cases are coming to an end.
The supreme court seems to be signalling the retreat.
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Take a moment to listen to this question to the prime minister from the Sky political editor Beth Rigby – and hold on to hear her follow-up.
Sky's @BethRigby asks Boris Johnson if he and his ministers have 'stoked division' and questions if his 'own record undermines his image as a unifier'.
As a question from a political journalist to a prime minister, the question could not be bettered – in form, content, or delivery.
Superb – but not exceptional.
The fact is that there are some outstanding journalists – in the United Kingdom and the United States – capable of asking excellent questions.
In the United States even before the election of Donald Trump as president in 2016, many of his material and manifest lies, faults and failures were already in the public domain – thanks in part to diligent investigative journalism.
But it did not matter.
A sufficient number of voters clapped and cheered for Trump anyway for him to win the electoral college, if not the popular vote.
Similarly, sufficient number of voters clapped and cheered for Boris Johnson and his governing party to win the general election in 2019, if not the popular vote.
And Johnson’s material and manifest lies, faults and failures were also in the public domain.
It did not matter.
It is a public good – that is a good that does not need any further justification – that journalists as brilliant as Rigby and others ask these questions.
The speech was a policy speech – not a political speech to a party conference or a rally.
The speech was also a formal speech as prime minister, with the text formally published on the government’s official website.
And it was perhaps the worst formal policy speech ever given by a prime minister.
Look at the state of this:
Here is just one sentence:
There are prisoners in Belmarsh with shorter sentences.
The speech is gibberish, for sentence-after-sentence and paragraph-after-paragraph.
And even if you want to give the benefit of the doubt – as not even lawyers and legal commentators speak as precisely as they write – this is not an unofficial transcript but the version approved for formal publication on the official government website.
And regardless of form, there is not a single concrete policy proposal in the speech.
Just words, words, words.
How does he get away with it?
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We have a juxtaposition, a tension – if not a contradiction – in our political and media affairs, and it has implications for all policy-making and law-making.
We may well have first-rate media questions – but we also have low-level political accountability.
Why?
Because politicians with executive power – at least in the United Kingdom – rarely have to be publicly accountable when it can really matter.
A prime minister can brush off a journalist’s question.
A prime minister can brush off the leader of the opposition.
A prime minister with a majority, and ministers generally, are not publicly accountable to anything in any meaningful way for their policy-making and law-making.
Even general elections are not a real check or a balance – as the government reneging on manifesto commitments show.
There is, of course, political accountability to their own back-benchers – but that is rarely in respect of specific policies or laws, and that accountability is informal and often hidden in private meetings and communications.
That is not public accountability.
And so we have the concurrent spectacle of the best of questions and the worst of speeches, and there is little or nothing anybody can do to make the situation any different.
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Some thought it was all over when Joseph Biden won the presidency – Trumpism was defeated and there could be a return to political normality.
But Trumpism is continuing – even without the presidency and indeed even without access to Twitter and social media.
Trump has gone, but Trumpism has not.
This can be seen in the failure of sufficient Republicans to support a commission to report on the attempted insurrection on the 6th January 2021.
The practical reason for this failure appears to be the effect such a commission and its report will have on the American mid-term elections.
This hyper-partisanship and the lack of constitutional self-restraint is not good for the sustainability of the body politic of the United States – just as similar hyper-partisanship and lack of constitutional self-restraint is not good for the United Kingdom and other (hitherto) liberal democracies.
It poisons the well, it pulls the rug, and so on.
The immediate political gains are at the possible expense of longer-term constitutional viability and sustainability.
And although constitutions can be robust and rugged old things – they are not invulnerable – and it is not inevitable that liberal constitutionalism will always win out.
When I was young I had an illustrated book about kings and queens – but the one illustration which stayed with me was not any of the formal mannered portraits.
Instead, it was this engraving by the novelist William Makepeace Thackeray:
It still dominates how I think about kingship, queenship and indeed any formality of power.
Strip away the paraphernalia of dominance – not just the garments but also the symbolism and the rhetoric and the concepts – and you just ultimately have people.
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A great deal of what we posit as politics and law – almost all of it – exists only in the mind.
They may well have grave real-world effects – but concepts such as the ‘state’, ‘government’, ‘markets’ and ‘society’ are, just that, concepts.
And without those concepts we are all just as the French king in Thackeray’s engraving.
If everyone suddenly stopped believing in the legitimacy of the ‘state’ there would be little that those with political power could do, other than to resort to coercive power.
But even totalitarian regimes usually make some effort at legitimisation – as resorting to pure repression is demanding and unsustainable in the medium- to longer-term.
The anarchist may well want to ‘abolish’ the state – but the ‘state’ has no real existence other than in the minds of people.
All it takes is for people to believe differently about government and the law, or to believe nothing at all.
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This is one reason why ‘legitimacy’ matters – and, because legitimacy matters, it is also why constitutionalism matters.
Constitutionalism is the notion that there are certain rules and principles of political conduct that have priority over mere political expediency and party advantage.
Once the institutions and processes of the state are stripped of their legitimacy then there is little to no reason for people to accord respect and deference to government and law.
And when people no longer see a government and its law as legitimate then, absent a programme of coercion, there is the pre-condition for a political – even social – crisis.
Sensible politicians of the right and left once knew this.
The reckless assaults on constitutional norms in the United Kingdom and the United States are the political equivalent of playing with fire.
And so there is immense danger when there are politicians like Donald Trump and Boris Johnson that are hyper-partisan, undermining the legitimacy of (with Trump) elections and (with Johnson) the separation of powers and checks and balances.
This blog is written from a liberal perspective, and so there would normally be little if anything that this blog would politically commend about Cheney’s various policy positions.
But this is also a constitutionalist blog, and what Cheney says is spot-on – and it needs to be heard and understood by conservatives in the United States and elsewhere.
Cheney avers:
‘Trump is seeking to unravel critical elements of our constitutional structure that make democracy work — confidence in the result of elections and the rule of law. No other American president has ever done this. The Republican Party is at a turning point, and Republicans must decide whether we are going to choose truth and fidelity to the Constitution.’
She continues:
‘I am a conservative Republican, and the most conservative of conservative values is reverence for the rule of law. Each of us swears an oath before God to uphold our Constitution. The electoral college has spoken. More than 60 state and federal courts, including multiple Trump-appointed judges, have rejected the former president’s arguments, and refused to overturn election results. That is the rule of law; that is our constitutional system for resolving claims of election fraud.
‘The question before us now is whether we will join Trump’s crusade to delegitimize and undo the legal outcome of the 2020 election, with all the consequences that might have.’
And concludes:
‘…if Republicans choose to abandon the rule of law and join Trump’s crusade to undermine the foundation of our democracy and reverse the legal outcome of the last election.
‘History is watching. Our children are watching. We must be brave enough to defend the basic principles that underpin and protect our freedom and our democratic process. I am committed to doing that, no matter what the short-term political consequences might be.’
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As this blog has set out before, constitutionalism is about there being constitutional principles that are distinct from and more important than political expediency.
The moment of truth for a constitutionalist is when one sees a distinction between the integrity of the constitution and political advantage and then sides with the constitution.
Constitutionalism is thereby, in this way, about choice.
It is easy – as some fogeys do – to say the words of constitutionalism: blah blah common law rights blah blah Magna Carta blah blah freedom under the law.
It is quite another to elevate constitutional principles above party and partisan advantage in a given practical situation – to say that a course of action should not be taken because it would violate constitutional norms.
One of the more unfortunate features of the authoritarian populist nationalism (and there are other words for it) that has been dominant recently in the United Kingdom, the United States and elsewhere recently, is that there has been no constitutional self-restraint.
Cheney’s article is a reminder that conservatives – as well as liberals and progressives – can take constitutionalism seriously too.
Perhaps the Republican Party will ignore this principled stand – and carry on with its frenzy of Trumpism.
But if that frenzy ever does come to an end, it will be because of warnings such as this from Cheney.
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And then it gets better, and better.
