A meaningless post hoc judicial decision only demonstrates the weakness of a common law constitution.

Even if a UK Supreme Court decision could provide enforceable precedent against a future PM, this decision fails to do so. All this decision told future PMs is to offer "reasonable justification" to prorogue Parliament. Underwhelming.
 

Technically, is Boris's government a "minority" government in the relevant regard? It was elected with a majority, which it only lost due to one of the MPs changing parties.

I would not be terribly shocked if Boris had his majority back after the next election. The Liberal Democrats evidently agree, given their determination to block one from being held.

Since we care about "minority" vs "majority" governments out of a concern for democratic legitimacy, given the present circumstances I don't think Johnson's government can really be considered a "minority" government in the relevant sense.
 

Brett:

Parliament's actions and inactions concerning Brexit are incredible.

A handful of PMs are simultaneously blocking their constituents' vote for Brexit and a new election to be held to account by those constituents at the behest of British big businesses.
 

The Conservatives have never held a majority in the present house of commons. The DUP, a Northern Ireland Unionist party, gave them a majority by agreeing to a confidence and supply arrangement. The Conservative/DUP majority came to an end when the Conservatives expelled 21 Remain MPs for voting against the government, just as Boris Johnson and Leave MPs had consistently voted against legislation presented by the May government. The Conservatives had also lost seats at special elections.

I think the principal outcome of the supreme court's decision will be to lead quite quickly to a written constitution. Having a constitutional court without a written constitution is not a tenable position. A constitution would not even be a particularly difficult exercise. All Commonwealth realms (countries that also have Elizabeth II as their head of state) except Britain and New Zealand have written constitutions and all follow the Westminster system, so it's not like there are no precedents to work from.
 

Agreed that England desperately needs a written constitution. But under the present circumstances, I don't see a good one, by which I mean one that creates a government responsive to the people, being adopted. The House of Commons doesn't WANT to be responsive to the people at the moment.
 

England is a constituent part of the United Kingdom. There has been no separate nation of England since 1707 and the last Queen of England died in 1603. The only prospect for an English constitution would be for the Union to break up first.
 

So, we're pretending that the United Kingdom is a union of equals, then? Not the remnant of the British empire?
 

The UK Supreme Court earlier ruled that it is up to Parliament do decide the matter of Brexit. Now the UK Supreme Court has ruled that PMBoris Johnson's proroguing of Parliament was unlawful. And steps have been taken to bring Parliament back. Let's wait and see what Parliament does about Boris, about elections, about Brexit. Consider the goals of Northern Ireland and Scotland and their desires. If the USA has a dog in this fight, what is it?
 

We already know what Parliament intends to do about elections; Put them off as long as possible, because they know they're giving the voters a big upraised finger.

And I see no basis for declaring the proroguing unlawful, it conformed to the normal process.

But, you are partly right: The only dog in this fight the US has is a desire for a long time ally to do well. It's not going to be too much skin off our noses if British voters find themselves unwillingly trapped in the EU.
 

Shag: If the USA has a dog in this fight, what is it?

For those of us who still believe in freedom, British rejection of rule by international bureaucracy was a step in the right direction.
 

The UK, through Parliament, can determine what is in its best interests with or without its allies, just as the USA can determine what's in its best interests without interference from foreign nations, especially those with adversarial interests. Spam may be promoting voter referenda that suits Spam'a purposes, as opposed to the 1787 Constitution's guarantee to its States of a republican form of governance.

Might Spam be suggesting that American send an expeditionary force to the UK to enforce Cameron's referendum?
 

Brett is going international on his assurance on what the law is. Blogger privilege.

The opinion is a quick twenty-five pages and a chunk of it is factual. It is appreciated the oral arguments were televised. A key bit:

"Although the United Kingdom does not have a single document entitled "The Constitution", it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice."

Furthermore:

"Since it has not been codified, it has developed pragmatically, and remains sufficiently flexible to be capable of further development." And, "the courts have the responsibility of upholding the values and principles of our constitution and making them effective."

And: "The courts cannot shirk that responsibility merely on the ground that the question raised is political in tone or context."

The opinion argues the facts here are rather unique and that the ruling in that sense is something of a (using its word) "one-off," which will be remained to be seen. Noting the differences of our systems and all that, the quoted language applies to the U.S. system to a significant degree. We have a written Constitution, but a lot of our law grew out of common law, statute and practice. What "due process" etc. means or the nature of state sovereignty and so forth.

Anyway, cheers to Lady Hale et. al.
 

Shag:

I never advocated the US interfering with UK policy. However, we are free to note as bystanders that Brexit represents progress.

As a side note, rule by international (or domestic) bureaucracy is antithetical to republican government.
 

John Hart Ely silently applauds from the grave.
 

Query: Was Spam's "side" a typo, as it seems "snide" under the circumstances in comparing the potential economic impacts of Brexit on the UK? Should America hold the UK harmless in bilateral trade talks if Brexit actually takes place? Or might Trump take advantage of the UK's decision to go Brexit?
 

This comment has been removed by the author.
 

The UK was not forced into the EU, it entered under the directive of its democratically elected reps and can leave when they so direct. And if I hire a butler to make the day to day decisions of running my estate or a chief of staff to which I delegate many office decisions I've lost not a jot or tittle of power or freedom as I can fire and/or overrule them at any time. So much for claims of tyrannical rule by bureaucracy.

Additionally, it's confused for those who condemn Parliament's not implementing Brexit because of 'elections' since how do they think Parliament got there?
 

Mr. W:

The UK does not have the power to overrule bureaucratic edicts from Brussels until it Brexits.

The UK has not held elections since the vote calling for Brexit and Parliament's subsequent efforts to derail to will of the voters and block new elections.
 

The Brexit referendum was on 23 June 2016. The last general election was on 8 June 2017.
 

Mr. W., Earl of Grantham.
 

"The UK does not have the power to overrule bureaucratic edicts from Brussels until it Brexits."

This is like saying 'As long as I'm over Joe's house I cannot override his house rules about putting my feet on his table!' I can leave his house whenever I want, my freedom isn't limited even a smidgen.

"The UK has not held elections since the vote calling for Brexit and Parliament's subsequent efforts to derail to will of the voters and block new elections."

Apart from being flat wrong as Alan points to, it's also irrelevant, like complaining in 2011 that the ACA wasn't repealed after the 2010 elections because there wasn't a Presidential election between 2010 and 2011. The voters of the UK know when they vote for their MP's they are getting them for a period of time and that their powers aren't going to be magically negated by a referendum such as Brexit.
 

This comment has been removed by the author.
 

Alan said... The Brexit referendum was on 23 June 2016. The last general election was on 8 June 2017.

I stand corrected.
 

BD: "The UK does not have the power to overrule bureaucratic edicts from Brussels until it Brexits."

Mr W: This is like saying 'As long as I'm over Joe's house I cannot override his house rules about putting my feet on his table!' I can leave his house whenever I want, my freedom isn't limited even a smidgen.

Good analogy, wrong conclusion.

So long as you are under someone else's roof, you are subject to their rules like any of their kids.
 

Normal people go to their friend's house to play poker and watch the game, they go to work (usually) in someone else's 'house,' they go shopping in someone else's 'house.' This is not becoming akin to a child or living under a dictatorship, they realize that as an adult to get the good things out of life you must play with others, you are free to go their houses and leave when you want, you do not lessen that freedom one smidgen because you choose for self interest to go and not leave.
 

The United States was a political guarantor at the time of the Good Friday Agreement on 1998, and the EU has become one in the course of time. Unlike the advisory Brexit referendum, the GFA is embodied in a international treaty. Some of its provisions are clearly constitutional in character. The Republic had to amend its own written constitution to ratify. The GFA clearly also changed the unwritten British one.

Much of the Brexit confusion is down to a very English refusal to admit that the GFA has absolute lexical priority over the referendum. The syllogism is simple:

1. The GFA requires (in practice if not in law) the maintenance of a single market in the island of Ireland. Since the Republic is and wishes to remain part of the EU single market, Northern Ireland has to stay as well.

2. The Unionist majority in Northern Ireland does not accept the creation of customs barrier in the Irish Sea with the rest of the UK.

3. Therefore the whole of the UK must stay in the EU single market.

Notes:
a. It is possible to stay in the single market while formally leaving the EU - the Norwegian solution. That is: apply all the rules, but lose all say in making them. This seems to be Corbyn's plan. Feasible but pointless.

b. Johnson is trying to wriggle out of point 1 and the EU and the Republic won't budge, rightly so. As plan B, he is looking at betraying the Ulster Unionists with a "Northern Ireland only" backstop. His problem is that the DUP MPs at Westminster would join the Tory rebels and swell the majority against him. They would probably join a vote of no confidence.

Johnson is completely out of his depth here.


 

Bart: "The UK does not have the power to overrule bureaucratic edicts from Brussels until it Brexits."

They aren't "bureaucratic edicts" but laws, adopted with the consent of an elected European Parliament. True that the structure is not fully democratic: the executive power is divided in a confusing way between the Council and the Commission, and the Commission has a jealously guarded monopoly of legislative initiative. But then, confederations tend to be messy structures. More democracy would make the EU more federal.
 

This comment has been removed by the author.
 

James:

Unless I am mistaken, as is the case here, the European Parliament enacts broad laws delegating their power over some subject matter area to the bureaucracy, which then decrees the mass of the law through regulation.

FWIW, the UK has all the leverage here because the two leaders of the EU - Germany and France - send far more goods to the UK than they take in reverse. Both Germany and France are in or close to recession.

The UK should negotiate a Brexit full free trade deal with the EU, with the alternative stick being the UK will double any tariffs the EU places on UK goods.

I am unsure GE and France can agree to a real free market without "harmonization" regulations placing burdens on more efficient producers who operate in countries without as many layers of domestic regulation.
 

Bart: if you are not prepared to learn the distinction in EU law between a regulation and a directive, there little point in discussing how the EU works. Both forms of legislation are submitted to the European Parliament, in detail. It doesn't work like US delegation of regulatory authority, you are just projecting.
 

Yes indeed, Spam is "just projecting."

Spam attempts at trans-Atlantic economics with this diversionary tactic at 8:48 AM: "Both Germany and France are in or close to recession."

 

James: "if you are not prepared to learn the distinction in EU law between a regulation and a directive, there little point in discussing how the EU works. Both forms of legislation are submitted to the European Parliament, in detail. It doesn't work like US delegation of regulatory authority, you are just projecting."

I am on the way to court. Can you please cite the applicable EU Parliament rule of procedure. Your summary does not appear to address the issue I raised.
 

"And if I hire a butler to make the day to day decisions of running my estate or a chief of staff to which I delegate many office decisions I've lost not a jot or tittle of power or freedom as I can fire and/or overrule them at any time."

This would be a good analogy if the butler decided to violate your orders on something he'd specifically asked you about, and somehow had the power to refuse to schedule an opportunity for you to fire him.

 

It would be interesting to hear from Sandy Levinson, who has had things to say about Marbury v. Madison [this ruling can be compared to it, noting any comparisons are at best inexact] over the years, about this ruling.

The basic ruling here is that there was not constitutional sanction to prorogue Parliament in this case. A short period (a span of days) might be necessary to craft the Queen's speech, but that was not credible for the extended period here. Thus, the Parliament should remain in session to represent the public. An attempt avoid this responsibility was found illegitimate.

This shouldn't on some level be complicated. If you are for or against Brexit. OTOH, perhaps if you are against basic republican principles. Me personally, putting aside the bad policy of Brexit (the Ireland aspect is but a factor), the basic problem for me is the lousy procedural approach used for Brexit. Major constitutional change of this sort requires special care that probably involves supermajority voting measures. Some conservatives favor that sort of thing at times.

(One can appeal to principles of the borders of judicial review though even here there very well might be a way to override this ruling by changing constitutional rules using the proper procedures.)

One summary with the ruling: https://barandbench.com/brexit-prime-ministers-decision-to-prorogue-parliament-unlawful-uk-supreme-court/
 

I assume Brett is anxiously looking forward to this season's Downton Abbey.
 

Show ran its course but there is a movie in the theaters now.
 

If the USA has a dog in this fight, what is it?

We honestly shouldn't have a dog in this fight. It's up to the British public. The reality is that the UK slid into the EU without a full accounting of what was happening (the British public voted for a common market in the 1970's, but that's a far cry from turning over large swaths of British sovereignty to Brussels, and EU supporters definitely baited and switched the British public on that) and now the Brexit side is trying to get the UK out with a full accounting of what is happening.

I think the sensible thing is to do another referendum. But it needs to be binding. No BS. If Leave wins, no more temper tantrums and no more blocking it. Brexit happens and that's it. If Remain wins, the UK remains.

The problem with having new Parliamentary elections is this is an issue that splits within the parties, which is a rarity in British politics. So you elect a new Parliament, some party has to form a majority, and the majority is going to include MP's who favor and oppose Brexit. And you will be back to the same deadlock you have now.

But the US should stay completely out of it. It's literally none of our fricking business whether the UK wants to give up sovereignty or keep it.
 

oting the differences of our systems and all that, the quoted language applies to the U.S. system to a significant degree. We have a written Constitution, but a lot of our law grew out of common law, statute and practice. What "due process" etc. means or the nature of state sovereignty and so forth.

This is truly an important point. A lot of conservatives seem to portray the law as just following the plain meaning of written statutes and the Constitution.

Nope. Our system is the same as the British, despite that we have a written Constitution and they don't. They still have statutes over there, after all.

The point is, in a common law system, yes, statutes (and a written Constitution) delimit the scope of judicial action. But the law is made by judges, one case at a time, through a system of precedents, vertical and horizontal stare decisis, and reasoned decisions. That's not the judges "making up the law". It is the law. And it is exactly the sort of lawmaking that the Constitution called for (the common law system is specifically mentioned by the framers in the Constitution, and the "Judicial Power" in Article III was the power to engage in common law rulemaking just like the British courts that the founders admired did).
 

The UK was not forced into the EU, it entered under the directive of its democratically elected reps and can leave when they so direct

This overstates things. The UK was not forced into the EU, but you can certainly argue that the British public was tricked into it.

What they voted for (a common market) has absolutely nothing to do with the EU as a juridicial body that overrides the sovereignty of its members on major aspects of governmental policy in numerous areas.

That's why the Leave argument was so powerful. The conservative narrative on what happened- a bunch of liberal technocrats endorsed policies that benefitted people in major British cities at the expense of people who would lose in free trade policies, and did it without forthrightly gaining the consent of the public as a whole- is largely true. It doesn't necessarily mean the UK should leave the EU. But it's a lesson for everyone (as is the ascendancy of Trump here in the US)- if you are going to pursue globalism, you need to seek democratic legitimacy at each point in the chain and never, ever, get ahead of the public. Because there's a whole bunch of elites in big cities who would love to get way ahead of the public because they get to make tons of money while a lot of folks in flyover country get the shaft.
 

The United States was a political guarantor at the time of the Good Friday Agreement on 1998, and the EU has become one in the course of time. Unlike the advisory Brexit referendum, the GFA is embodied in a international treaty. Some of its provisions are clearly constitutional in character. The Republic had to amend its own written constitution to ratify. The GFA clearly also changed the unwritten British one.

Much of the Brexit confusion is down to a very English refusal to admit that the GFA has absolute lexical priority over the referendum. The syllogism is simple:

1. The GFA requires (in practice if not in law) the maintenance of a single market in the island of Ireland. Since the Republic is and wishes to remain part of the EU single market, Northern Ireland has to stay as well.

2. The Unionist majority in Northern Ireland does not accept the creation of customs barrier in the Irish Sea with the rest of the UK.

3. Therefore the whole of the UK must stay in the EU single market.

That's a very bad argument. Even if the Good Friday Agreement has the effect you argue (and I would argue that you are reading much more into its spirit than is permitted by its letter), the UK can abrogate it. Seriously. A country can ALWAYS abrogate a treaty. It might cause lots of problems with the Irish, but unless you are actually going to claim that the UK isn't a sovereign nation at all anymore and is just a political subdivision of the EU or something, they can abrogate their treaties.
 

Major constitutional change of this sort requires special care that probably involves supermajority voting measures

I would only accept this if all of the steps to get INTO the EU had been approved by supermajorities of the UK electorate.

Of course, supermajorities of the UK electorate would have never allowed that to happen.

Elites don't get to do everything they want by simple majority and a ton of subterfuge, and then say "ha ha, you don't get to reverse it and try to keep us from making money shipping your jobs out of the country unless you can get a supermajority".
 

The butler analogy was, of course, about Bart's silly claim about rule by bureaucracy, not UK's form of representative government (and Brett's claim that the latter is somehow tyrannical is like someone in the states complaining that we have a tyrannical government because we can't vote out in 2019 the Congress we voted in in 2018).
 

The butler analogy was, of course, about Bart's silly claim about rule by bureaucracy, not UK's form of representative government (and Brett's claim that the latter is somehow tyrannical is like someone in the states complaining that we have a tyrannical government because we can't vote out in 2019 the Congress we voted in in 2018).

The British system is not a tyranny. We need to get away from using that description to describe any time a government uses a system that is non-optimal. Most democratic governments use non-optimal systems from time to time. E.g., the Electoral College is stupid and wrong, but it doesn't make the US a "tyranny".

The UK is actually trying to work this problem out in exactly the way a democracy should- they had a referendum, they are apparently likely to call elections, they are negotiating in Parliament, and they have judicial review. It's messy and ugly, because the underlying issue is very heated. (Indeed, I think is helpful to remember that this heat reflects the real conflict that exists between the interests of dwellers of well-off cities and the interests of communities being left behind by globalism. There's billions of dollars (pounds) at stake here and fundamental questions about whether the goal is to attain the highest growth rate (and then perhaps use transfer payments to mitigate unfairness) or to protect threatened communities.)

But the UK's process, as messy as it is, is the opposite of "rule by bureaucracy" or "tyranny". They are trying to work out a knotty problem using their democratic institutions.
 

Mr. W: The butler analogy was, of course, about Bart's silly claim about rule by bureaucracy, not UK's form of representative government (and Brett's claim that the latter is somehow tyrannical is like someone in the states complaining that we have a tyrannical government because we can't vote out in 2019 the Congress we voted in in 2018).

The inability of the UK to make its own laws was at or near the top of the reasons voters gave for supporting Brexit.

Silly British people.






 

The British people were acting like a person freely entering an HOA when they entered the EU, they chose to leave in a referendum but they also chose the PMs they have now. Eventually and within their system they are free to choose new PMs and leave. At no time has their been an iota of tyranny or loss of freedom.
 

The inability of the UK to make its own laws was at or near the top of the reasons voters gave for supporting Brexit.

One way or another, the British public will get the final say on Brexit. This ISN'T rule by bureaucracy. You can argue that bureaucratic creep PUT the UK in this situation, but they are resolving it in the democratic process.
 

The British people were acting like a person freely entering an HOA when they entered the EU

The British people never freely entered the EU. They freely entered the Common Market, which was basically closer to a free trade zone than a regional government.

This is crucially important. The various expansions of EU sovereignty were passed without anyone asking the British public, and I suspect at some point they would have stopped the process had they been asked.
 

This comment has been removed by the author.
 

This comment has been removed by the author.
 

Mr. W / Dilan:

So long as a bureaucracy (international or domestic) rules by decree to enact, enforce and adjudicate most law you must obey, the system is tyrannical and remains tyrannical until the people take away that absolute power and return it to their elected representatives.

The fact the people could reverse such tyranny in the future does not make the present any less tyrannical.

Brexit is an as of yet unrealized first step in that effort.
 

That's as absurd as saying that a person who freely enters a HOA, knowing the HOA can promulgate rules he must follow, is under tyranny. He was free to enter and leave, the fact he exercises that freedom by choosing to stay is no loss of freedom
 

Bart:

If that's your definition of "tyranny", the concept is useless. What word are you going to use to describe, for instance, Idi Amin's rule in Uganda?

Look, my side does this too. Everything is the "end of democracy" or "fascism" or whatever. No. Rules and norms get broken sometimes in democracies. Sometimes they don't live up to their ideals. Sometimes there are undemocratic structures within democratic countries.

None of that, however, is tyranny. It just isn't. You have a much better argument if you just describe the forces that led to the UK being where it is with respect to the EU. It isn't pretty. It wasn't the British system at its best. But it's not tyranny either. Get a grip.

More generally, I get the feeling that you really do believe that any time your side loses on an issue, it must be "tyranny". You have no ability to recognize that these are complex systems with lots of levers to pull, and sometimes your opponents will figure out the right levers to pull and your side won't. That's not tyranny. That's ordinary politics.
 

Mr. W:

Another bad analogy.

In an HOA, the association of owners elects a board to govern under the powers and limits set forth in a declaration or a collective community statute enacted by an elected legislation. This is the model of a constitutionally limited representative democracy.
 

BD: So long as a bureaucracy (international or domestic) rules by decree to enact, enforce and adjudicate most law you must obey, the system is tyrannical

Dilan: If that's your definition of "tyranny", the concept is useless. What word are you going to use to describe, for instance, Idi Amin's rule in Uganda?

Same tyranny - an unelected executive exercising absolute power. The primary difference between an absolute dictator and an absolute bureaucracy is the latter has far more people and, thus, far more effective power over our lives. This is why totalitarian political economies may or may not have an absolute dictator, but they always have an absolute bureaucracy.
 

The elected boards of HOAs commonly hire a property manager to run the HOA. Similarly, partnerships commonly vote to have a managing partner run partnerships. The boards and partners haven't lost any power or freedom, they freely entered the agreement and can end it.

But we don't have to hang on any of these because the principle you are arguing-that if someone freely allows anyone else to make decisions for them while retaining the full power to overrule and end the arrangement is living under 'tyranny' is absurd in any iteration. If Joe and Shag and I decide to organize a book club and then vote to have Joes spouse choose the books to be read and the place for our meetings we haven't given up any power or freedom when we read her picks and discuss them at her chosen venues.
 

Keep in mind that Spam thinks America's best days were the late 19th century days of the Robber Barons. Of course Spam did not live through those days, arriving on the scene in the middle of the 20th century. Spam'sMAGA days were long before his birth
 

Mr. W: The elected boards of HOAs commonly hire a property manager to run the HOA. Similarly, partnerships commonly vote to have a managing partner run partnerships.

This is roughly the equivalent of changing from a parliamentary system (board led by a president) to something more akin to our US division of powers with the board being the legislature and the management company being the executive. All law in the form of bylaws is still enacted by the board and the management company enforces it.

HOA law does not permit any version of an absolute bureaucracy.

Mr, W: "that if someone freely allows anyone else to make decisions for them while retaining the full power to overrule and end the arrangement is living under 'tyranny' is absurd in any iteration."

If you or your legislature elect a tyrant exercising absolute power, you have by definition established a tyranny which will exist until the tyrant is removed.

The Germans elected Hitler and theoretically had the power to remove him. Did that make the National Socialist state any less tyrannical?
 

"Keep in mind that Spam thinks America's best days were the late 19th century days of the Robber Barons. Of course Spam did not live through those days, arriving on the scene in the middle of the 20th century. Spam'sMAGA days were long before his birth."

I don't think all the things he argues here flow from laissez faire economic libertarianism though. If anything, economic libertarians tend to favor a sort of technocratic elite rule over direct democracy. And economic libertarians would tend to favor something like the EU as well.

It may just be that he hasn't thought through his political philosophy very deeply and doesn't see the contradictions. But assuming he has, it's basically that any ordinary liberal political victory is the equivalent of Idi Amin. It's crazy.
 

The Germans elected Hitler and theoretically had the power to remove him. Did that make the National Socialist state any less tyrannical?

No, but the reason the National Socialist state was tyrannical has nothing to do with the procedural issues you are raising. It has to do with the fact that they did stuff like stage a fire to destroy the Parliament, fix and cancel elections, consolidate power in extraconstitutional ways, use a state of war to seize emergency powers, and, not in the least, engage in an aggressive war campaign to conquer Europe while trying to exterminate Jews, Gypsies, and gays.

Whereas the British government you are calling a tyranny did none of those things. It simply has hemmed and hawed in implementing a referendum whose result you favor. That's not incredibly admirable behavior, but it isn't tyranny.
 

"The Germans elected Hitler and theoretically had the power to remove him."

Yes, a yuuge line was crossed when they lost the power to remove him. I mean, really, your view leads to palpable absurdity, such as thinking Lord Grantham's butler is his tyrant or that Joe's wife has power over the book club. Anyone who can be discharged or overruled anytime at will by others is by *definition* not *absolute.*

Merriam Webster-having no restriction, exception, or qualification
 

"It's crazy."

It is, of course. Looking at the federal bureaucrat who reviews your permit to develop land in compliance with the Clean Water Act and the henchman of Amin who blithely orders people shot arbitrarily and seeing the same thing is like someone who looks at a horse and a train and insists they are the same thing (they both carry people places!).

I think at this stage after years of Bart posting nonsense like this it's best to respond to it by talking about what's wrong with him and so many of today's conservatives (and there are many!) that talk/'think' like him. After years of reading him I've come to two competing conclusions: it's either an obtuse (obtuse because it elides over major restrictions on freedom, such as slavery in the US while focusing on relatively minor ones, like requirements for EPA permits in developing property), incredibly inability to make what for most are obvious, normal, important distinctions, seeing things only in the most child-like, stark, 'black and white' fashion or it's intentional trolling, purposely saying outrageous, propaganda style comments in any and all conversations in the hopes of provoking outrage.

I frankly think it is a mix of the two. And both are everything wrong with conservatism and the Republican Party today.
 

I want to make sure to tie this back to this blog. Recently there was a symposium here on a book about the history of recent conservative thought. I guess for balance a 'Randian' scholar was chosen who made entries here. Did anyone else notice how unhinged, unprofessional his entries were? I'm all for conservative voices! One of my favorite justices is Rehnquist. I voted for Buchanan before 'America First' was 'cool' with conservatives. If I were a legislator I'd vote for tax cuts a lot, for streamlining regulations, against things like in-state tuition for undocumented migrants, against affirmative action. I'm not going to pretend I'd be a Senator from South Carolina, but a Republican, or what used to be one, from New Jersey, I could be that. But increasingly the GOP is becoming the party of Hannity and Limbaugh, peddling an ugly and/or simplistic version of John Birch Society theories married to George Wallace 'populism.'
 

I was looking at this thread with my smartphone and there was an ability to directly reply to specific comments but can not do so on my laptop. Huh.

Mr. W. is fronting. He says he voted for Buchanan but I have it on good authority he is just a biased anti-Trump member of "the Left."

I found Rehnquists' off court writings interesting w/o endorsing everything found in his books. For instance, he had an amusing account of his trip to D.C. as a law clerk.
 

Rehnquist did some awful things on his way to the court. So did another favorite of mine (Black). Hid jurisprudence is wonderfully modest, especially in contrast to many today.

I just read his All the Laws But One. Not great, but decent.
 

Dilan: I don't think all the things he argues here flow from laissez faire economic libertarianism though. If anything, economic libertarians tend to favor a sort of technocratic elite rule over direct democracy. And economic libertarians would tend to favor something like the EU as well.

What?

Classical liberals believe in limitations on government power, separation of powers and grantees of liberty to check a tyranny of the majority.

CLs recognize a "technocratic elite" is the stuff of totalitarian political economies.

So far as education goes, CLs believe a string liberal arts education allows people to better self govern themselves by applying the hard won lessons of history.

The only things about the EU CL's would favor is a continental free market using a single currency. See our own Constitution. The rest of the EU would have driven our Founders to armed revolution.

I suggest you acquaint yourself with the seminal texts of classical liberalism and our own nation's founding documents.
 

"Wonderfully modest" is a somewhat curious way to phrase his jurisprudence. He was a conservative though as Chief Justice he was willing to compromise as good strategists do.


 

What?

Classical liberals believe in limitations on government power, separation of powers and grantees of liberty to check a tyranny of the majority.

CLs recognize a "technocratic elite" is the stuff of totalitarian political economies.

So far as education goes, CLs believe a string liberal arts education allows people to better self govern themselves by applying the hard won lessons of history.

The only things about the EU CL's would favor is a continental free market using a single currency. See our own Constitution. The rest of the EU would have driven our Founders to armed revolution.

I suggest you acquaint yourself with the seminal texts of classical liberalism and our own nation's founding documents.

Bart:

1. In general, libertarianism is suspicious of democracy- not in the least because democracies tend to vote in plenty of the sorts of regulations they don't like. You don't like the term "technocratic elite", but libertarianism is usually bound up with political theories that limit the power of voters to overrule the more laissez faire preferences of elites. For instance, libertarians don't tend to think very much of California's initiative tradition.

2. The founders of this country were not "classical liberals" or libertarians. That's a howler that you simply cannot be allowed to get away with.

Many of them- like Hamilton- weren't any species of liberal at all. Many others- like Jefferson- were strong supporters of an interventionist state to protect regional interests. Some- like Madison- were the precursors to what we might now call civil libertarian.

They produced two Constitutions. The first created a very decentralized, weak federal government, and it failed miserably because, you see, decentralized weak federal governments with very few powers are an exceedingly dumb idea. The second reversed that and created a strong (though concededly not unlimited) federal government with vast powers that would expand organically as the country and commerce expanded, with some carve-outs for the states and in the form of rights held by the public. That one worked pretty well. Whatever one says about the first Constitution, the second is not a "classically liberal" document. I would argue the only things liberal about it are the protections of some forms of representative democracy (which I suppose are consistent with classical liberalism), the expansive powers of government (which are consistent with modern liberalism), and the Bill of Rights. And of course it contained extensive protections for slavery, which are grossly offensive to both your version of liberalism and mine. :)

3. A continental free market using a single currency is a huge part of the EU! But also, the EU imposes various human rights protections which are consistent with classical liberalism or libertarianism. Whereas much of the impetus of Brexit is based on concepts like local sovereignty and protectionism that really are incompatible with libertarianism.
 

I can't say I am a big fan of Rehnquist's jurisprudence, which was off his rocker right wing at the beginning of his tenure and became really politicized near the end. He had some moments- the unanimous opinion in Hustler v. Falwell is pretty good, and his Dickerson opinion reaffirming Miranda is excellent. Too bad he never realized that the same reasoning applied to abortion precedents.

His pre-Court days were ugly. He was clearly on the wrong side of the segregation issue and did some awful things.

But I am a huge fan of his conduct and writings as Chief Justice off the court. He did just fine doing the Clinton impeachment trial, and his book on impeachment is very good. His book on wartime jurisprudence is well done as well. He was a very keen legal historian.
 

" Anyone who can be discharged or overruled anytime at will by others is by *definition* not *absolute.*"

Well, then the fact that Parliament won't be able to put the general election off past 2022, (Or will they? The law setting the intervals IS just a statute.) doesn't immunize them against the charge, since "no more than 5 year intervals" DNE "any time". And they've already rejected a call for election, and refused to vote no confidence to avoid triggering one. So it's not like they don't obviously know they're not doing the voting public's will.

And elections have already proven a fairly puny way to overrule Parliament, given that referendum, and the fact that the CURRENT Parliament was elected promising to implement it. Elections actually can't overrule anything if the new guys decide once in office they're going to do the opposite of what they ran on doing.

So, no, elected legislatures are perfectly capable of being tyrannical.
 

Brett's 5:22 AM closing line: "So, no, elected legislatures are perfectly capable of being tyrannical." might describe the tyrannical ways of Sen. Jamority Leader Moscow Mitch back in 2016 on the Supreme Court vacancy and Moscow Mitch's performances during Trump's presidency. And keep in mind pillow talk during the 2016 campaign between Moscow Mitch and Mrs. Moscow Mitch on her pending appointment as Transportation Secretary and the riches it might bring this wealthy couple. Conspiracy theorists take note.
 

What effect did Downton Abbey have upon the Cameron referendum on Brexit? Did the vote reflect a desire to return to those good old days, to make the UK great again?
 

""So, no, elected legislatures are perfectly capable of being tyrannical." might describe the tyrannical ways of Sen. Jamority Leader Moscow"

I hope you're not under the impression I'm a fan of Mitch McConnell. I think he's been a terrible majority leader.

While I would defend the decision not to give Garland a vote as fully legal, it was still a sucky thing to do to the guy; They should have just held a vote and voted him down, to give him some closure.

I suspect that McConnell had some crazy notion of holding Garland in reserve, and holding a flash vote to confirm him if it looked certain Trump was going to lose. But still a nasty thing to do, even if it was unambiguously legal.

We've allowed the leadership in Congress to accumulate too much power, render the ordinary members powerless in many circumstances. I'd be glad to see them taken down several pegs. And McConnell is poster boy for this.
 

Dilan:

The term technocratic elite refers primarily to the modern bureaucracy. They have no laissez faire sentiments, but rather a totalitarian world view in which their central importance in society is secured by their exercise of government power over others.

Classical liberals do have a healthy and historically demonstrated fear of a democratic tyranny where the majority abuses the power of government to abridge the liberty and/or steal the wealth of the minority. Much our our Constitution is focused on checking that tyranny.

Forget personalities. The Founders' constitutional products are more liberal than most libertarians I know, who talk a good game, but often support many decidedly non-liberal government actions.

Our current Constitution as written in no way allows a "federal government with vast powers." Rather, its powers are largely limited to a short list contained in one section of one article of the document. When it was largely functioning as designed over the first century, the number of laws issued by the tiny Capitol fit in a few books. As written, this Constitution outlaws the vast majority of the modern progressive state.

There is one human right - our right to live our lives as we please so long as we do not harm others. The EU and other totalitarian political economies have little respect for that human right. The vast majority of what you call "human rights protections" are instead directions of the economy or redistribution's of wealth.


 

Brett, perhaps I was a little too subtle. When one who claims tyranny or tyrannical is a 2nd A absolutist, how that person reacts can be a problem under our Constitution. Failure by such person may be treason. Crying tyranny or tyrannical cavalierly can be like crying "wolf" despite the 1st A Speech clause. Our Constitution is not a suicide pact.
 

Spam's from of of libertarianism looks to selfishness uber selflessness. There are rights but there are also obligations. Spam's "do not harm"others" seems to be Randianly subjective.
 

Mr. W: Looking at the federal bureaucrat who reviews your permit to develop land in compliance with the Clean Water Act and the henchman of Amin who blithely orders people shot arbitrarily and seeing the same thing is like someone who looks at a horse and a train and insists they are the same thing (they both carry people places!).

Now you have gone from bad analogies to the false.

Here is a more apt analogy.

What is the effective difference between a federal bureaucrat who arbitrarily decrees you may not use your land under a vague regulation issued under the authority of an even vaguer enabling statue and some dictator or his subordinates who does the same? Both are denying you use of your land under threat of violence. Think I am exaggerating? What do you think happens if the land owner ignores the bureaucrat and continues to use her land as she pleases?

Mr. W: "After years of reading him I've come to two competing conclusions: it's either an obtuse (obtuse because it elides over major restrictions on freedom, such as slavery in the US while focusing on relatively minor ones, like requirements for EPA permits in developing property)"

Now from bad analogies to bald faced lies.

Generally, the way this conversation goes is Shag equates slavery with classical liberalism, I note that slavery is the antithesis of classical liberalism, and you chime in with some erroneous comment, which spawns a multi-post exchange where I correct your errors.

Here we go again.

 

Bart:

The commerce power is a vast power. The reason there were few laws in 1787 is because (1) the Republic was new and (2) there was very little interstate commerce.

But the POWER was broad. So are the powers to make war, coin money, tax, organize and call up the militia, build roads, recognize copyrights and patents, etc.

Those framers tried a small government. It failed miserably. So they replaced it with a government with super-broad, but limited, powers.

Maybe your most fundamental problem is you don't realize that whatever it was in 1787, as of 2019, commerce among the several states and foreign nations is an enormous power.
 

Dilan: "A country can ALWAYS abrogate a treaty." Sure. The UK can abolish the monarchy, leave the EU, declare war with Denmark to annex the Faroe Islands, and abrogate the GFA.

Bad things often happen when countries behave in this way. In the case of Northern Ireland, we know pretty well what the bad things would be since we've had them before. Theresa May is a hardline English nationalist, but she was a long-serving Home Secretary before becoming PM, and she treated the GFA as untouchable. Airey Neave was killed by the IRA, and Margaret Thatcher was lucky to survive the Brighton hotel bombing; the risks are not just political.
 

This comment has been removed by the author.
 

Dilan: The commerce power is a vast power. The reason there were few laws in 1787 is because (1) the Republic was new and (2) there was very little interstate commerce. But the POWER was broad.

The Commerce Clause as written merely grants the federal government power to regulate interstate commerce. When read in para material with the provisions prohibiting states from interfering with commerce, "regulate" effectively means to ensure free trade between the states. What else was there for the federal government to regulate about such trade? "Interstate commerce" merely means the interstate trade in goods and in no way grants federal government any additional powers over the economy or our lives.

Inter-colony trade was actually quite healthy. The problem being remedied here was the new states erecting trade barriers against one another.

"So are the powers to make war, coin money, tax, organize and call up the militia, build roads, recognize copyrights and patents, etc."

The exercise of express section 8 powers only makes up a minuscule fraction of today's government.
 

" When one who claims tyranny or tyrannical is a 2nd A absolutist, how that person reacts can be a problem under our Constitution."

I'm sorry, do you have some information indicating that James Hodgkinson was a 2nd amendment absolutist? Seems unlikely in a Bernie Bro.

Or is my point in asking this too subtle for you?
 

Brett, your point is as subtle - and irrelevant - as the derriere of the GOP's symbolic elephant. I don't know if James Hodgkinson was a 2nd A absolutist. What he did was criminal. But you have professed in the past in the direction of an anarcho-libertarian and a 2nd A absolutist. And you loosely use tyranny and tyrannical for matters you disagree with. Crying "wolf" with your arsenal may be protected by the 1st A's Speech clause and preen about in your local community.
 

Sanders has been criticized for being too libertarian on guns.

So, not sure why some strong supporter of Sanders could not be strongly supportive to the degree it is a tad bit extreme about the 2A. Sanders message is largely economic.

Sanders' fellow Vermont senator noted once he has a shooting range on his property.

OTOH, the comment sounds trollish. So, never mind?