Category: United States Law and Policy

Laws and systems – what connects slavery, torture, imperialism, police brutality and so on

7th August 2021

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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Lord Reed’s signal: the politics of the Supreme Court (continued)

5th August 2021

Over at Prospect there is a wise and informative article on the supreme court of the United Kingdom.

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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The best of questions and the worst of speeches – a practical example of the accountability gap in UK policy-making

15th July 2021

When the question came, it was superb.

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.

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.

But it is not enough.

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How do politicians get away with it?

Here we must turn to the speech that the prime minister gave before the press conference.

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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Hyper-partisanship and the lack of constitutional self-restraint are the twin poisons attacking our bodies politic

30th May 2021

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.

Brace, brace.

The ‘state’ with no clothes on

16th May 2021

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 may not end well.

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Liz Cheney’s important statement about constitutionalism and politics

6th May 2021

From time to time an utterance by a politician becomes more important than the here-and-now of practical politics.

Such an utterance is an opinion piece in the Washington Post by the conservative congresswoman Liz Cheney.

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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The George Floyd murder verdict – and the problem of systemic racism in the legal system

21st April 2021

Yesterday a former police officer was convicted of the murder of George Floyd.

The evidence was overwhelming and, to most people who followed the televised trial, compelling.

Indeed, some would aver (in my view, correctly) that the evidence was compelling even before the trial.

But due process is due process, and even those charged with the most vile of crimes are entitled to due process.

And the former police officer received due process, and the former police officer was duly convicted – unanimously.

Yet.

Until the very last moment the verdict was uncertain.

Anyone watching the verdict being handed down was braced for an acquittal.

Regardless of the starkness of the evidence – and of the weakness of the defence case, even taking it at its highest – it seemed extraordinary that a white former police officer would actually get convicted of the murder of a black person.

And even if the evidence was as twice as compelling, and the defence case twice as weak, one would still realistically expect an acquittal.

For that seems to be the nature of the criminal justice system.

There is here a gap between knowledge and expectation – and this gap is systemic racism.

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By ‘systemic’ is meant that the racism is a feature of the system.

It would not matter which white police officer was accused, and which black person was the victim of a wrong, the operation of the system will tend towards certain outcomes.

Black people will tend to be the victims of police violence and there will never be any sanction against those who inflict the violence.

Any fatality will tend to be the subject of misdirection and misinformation by the police to the media.

Any victim will tend to be disparaged, if not demonised.

Any police violence will tend not to be filmed or similarly documented.

Any accused police officer will tend to be given the benefit of the doubt – and if there is no room for doubt, they will be given the benefit of some excuse.

Any other officers will tend to stay quiet.

Any prosecution will tend not to be brought.

And any prosecution brought will tend to lead to an acquittal.

The reason for each of these swerves away from justice will be different from case to case.

But the overall bias of the system will mean that the gravity pull will be against any conviction.

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The solution to this problem is not to dilute due process – but to be open and frank about the factors which will distort the process as a whole.

Indeed, everyone should have the benefit of the strict approach to due process that is accorded to police officers and other privileged defendants.

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It is all very good to say there are systemic problems, some will protest, but what about solutions?

Well.

There is plenty of sensible and constructive thinking out there about other faults in the system – for example, see these two threads which should be read carefully.

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A systemic problem needs a systemic approach to the solution.

Picking on any individual element of the system will not be sufficient, as long as other elements still tend towards injustice.

Accepting the importance of a systemic approach – and of the existence of system (or institutional) racism – will be for many an intellectual and emotional pain barrier.

Racism in legal systems is not just about the wrongness of individual acts – but a realisation of the impacts of swarms of wrongful acts which means that – unless there are exceptional circumstances – white police officers will get away with whatever violence they can against black people. 

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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:

https://twitter.com/ArghZombies/status/1379923278739992576

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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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