Mar 272012
 

I’ve been reading the transcripts of and commentary about the US Supreme Court arguments taking place this week about the constitutionality of the “individual mandate” and associated penalty contained within the provisions of the Patient Protection and Affordable Care Act (2010).

Before I get into any analysis, a seeming triviality: many of the news reports about this case are noting the fact that its opponents refer to the act as “Obamacare,” as if this were some kind of novel piece of slang. It’s not. What’s new is that, ahead of these oral arguments, the Act’s supporters have started embracing the term instead of discouraging its use, as if Barack Obama himself has delivered this manna to the unhealthy. Frankly, I don’t think Obama has even read the full text of this legislation, so I refuse to give him sole credit (or blame) for it, and will refer to it by its acronym PPACA, which is the norm when referring to legislation of the American Congress. (What, did you think PATRIOT Act was capitalised because it’s a big deal? No: it’s because it’s the Uniting (and) Strengthening America (by) Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism Act of 2001. American politicians are nothing if not massively cheesy.)

Now let’s address why I’m writing this blog post. This case is an extraordinarily big deal, and you will have a hard time understanding why if all you read is the news media accounts of the arguments. The American media does not want to go into any great analysis of the issue, for fear that you might draw your own conclusions, and the British media does not understand the significance. In the British media in particular, you will find reporters utterly baffled by what appears, to them, to be a sneaky, underhand challenge of the president himself under the pretext of a legal technicality.

Whether or not a law, or a part of a law, is constitutional is simply not a legal technicality. The Constitution is the basis for all federal government in the United States. The federal government simply may not make laws that contravene, or surpass, what the Constitution allows it to do. The law, or the provision within the law, cannot be imposed upon the American people if it is not constitutional. And one of the basic rights Americans have is to challenge the federal government about the constitutionality of its laws. That British journalists don’t seem (or want) to grasp this, simply because they personally think the PPACA is a good thing, makes them shitty journalists.

So. What is the issue at stake?

The challenge to the PPACA is about the provisions in section 5000A, which require Americans to be covered by health insurance (whether purchased individually or through their employer) or incur a penalty. These parts of the law are collectively referred to as the “individual mandate” or the “minimum coverage provision.”

The challengers, in this case, are a number of American states and some associated individuals. Their basic contention is that the US Constitution does not permit the federal government to compel people to purchase health insurance when they are not purchasing health care services.

In this case, you have two participants: the challengers, and the US federal government (as represented by the Solicitor General). This case has gone through the federal courts already, and the Supreme Court agreed at the back end of 2011 to hear it. This is significant: the Supreme Court can choose not to hear cases, so the fact it has chosen to hear this one means the Court believes that there is enough doubt about the matter, or enough importance about the question at hand, to make it an issue worth settling. The Court’s decision is binding and, in this case, may also be precedent-setting. (This is kind of what puzzles me about the position of many British journalists; if the high court of the US thinks it’s important enough to discuss, who are you to call it a trivial technicality?)

But enough about British journalists. Part of the reason reportage about this case is so crappy is that there are lots of different strands of argument involved, not all of which make a lot of sense if you consider them in isolation.

For example, yesterday’s arguments centred around whether or not the Court could even hear the case. Here’s the background: as the case has made its way through the lower levels of courts, the government’s position has been that the penalty for not purchasing health insurance is, effectively, a tax, and taxes do not come under the jurisdiction of any court until the complainant has paid the tax, requested administrative redress, and been refused. Then, and only then, can the complainant bring suit. (Challenges to tax are covered under a law called the Anti-Injunction Act.) The government’s argument has been that, since the mandate and penalty/tax do not come into force until 2014, the law cannot be challenged on those grounds in 2012, because nobody has yet paid the tax and therefore nobody can at this point bring suit.

Interestingly, once the Court agreed to hear the case, the government switched positions, and yesterday argued before the justices that the penalty is not a tax subject to the Anti-Injunction Act. Because the challengers were making the same argument, the Court had to appoint independent counsel (the amicus curiae) to argue that the penalty is a tax. Ultimately, yesterday, the Court appeared to accept that the penalty is not a tax subject to the Anti-Injunction Act. Nobody was surprised by this; why would the Court schedule three days of argument about the matter if it envisioned recusing itself after the first day?

So. We proceed to today’s arguments, which were about the constitutionality of the mandate itself. I have read the transcript, but I am not a lawyer, so take what I am about to describe with the understanding that I am both ignorant and naive to a certain extent. However, you can read the stuff yourself on the SCOTUS website; the arguments were very accessible to the layman.

The government argued as follows. In the Constitution, the federal government is allowed the power to regulate commerce, and issues affecting commerce, between the states (the “Commerce Clause”). There are two commercial markets at issue: one is for health care services, and one is for health insurance. All people in the US are participants in the health care market, because all people in the US will require health care at some point. Health insurance is the method by which people finance their health care in the US, and therefore all people are technically participants in the health insurance market also. Ergo, Congress has the right to regulate both, as both constitute interstate commerce, even to the point of requiring people to purchase health insurance at a given point in time, because their failure to do so is an issue that affects commerce within that market.

(There is also a whole bunch of stuff about how the penalty for not buying is a tax, but I didn’t follow that part too well, and since the government argued yesterday that it is only kind of a tax, I’m not sure how germane the point is anyway.)

What it is important to understand about the government’s position is that, in the US, even if you do not have health insurance, you cannot be refused health care. So what happens is that people without the means to pay for their health care nevertheless receive it, which drives up the cost of care, which in turn drives up premiums for those people who are insured. So the government is arguing that because some people’s failure to insure themselves affects the price of everyone’s health care and insurance, Congress has the right to interfere in the purchasing (or not) of health insurance under the justification of the Commerce Clause.

By compelling people to purchase insurance (and penalising/taxing people if they don’t), the government’s aim is to reduce the free rider problem and thus lower the cost of care and insurance premiums.

If you read the transcript, Solicitor General Verrilli does a lot of waffling about the “40 million Americans who don’t have access to care,” but the upshot of what he’s saying is this: actually, these people can get care, they just don’t pay for it. So in order to cover the cost of people who can’t pay for the care they definitely do get, everyone has to be insured. That way, the insurance companies can use the premiums paid by the healthy to subsidise the cost of the care for unhealthy people who can’t pay for it themselves. Thus, because everybody is affected by this way of ensuring poor people can still get health care, Congress can do what it chooses, including compelling purchase, to deal with the problem.

So far, so clear. The system envisioned in the PPACA is one of the healthy subsidising the unhealthy.

The challengers argument was somewhat more complicated.

First, they disputed the “everybody is a participant” claim. Many of the Americans who do not have health insurance are young, healthy people who choose to spend their money on something else, believing themselves to be at low risk of requiring health care. Thus, these people are not, at a given point in time, participants in either the health care or health insurance market. The Commerce Clause, they say, does not give the government the right to compel people to participate in these markets when they otherwise would not choose to do so.

Second, they disputed that the health care and health insurance markets are so intertwined as make eventual participation in the one the justification for forced participation in the other. There are, they said, other means of subsidising the unhealthy who cannot pay for their care than compelling the purchase of health insurance. Social Security was brought up: a general tax, linked to income, levied on everyone, which the federal government then disburses to those requiring the payments, would be constitutional in a way the mandate is not, because the Constitution does give the federal government the right to levy taxes. (This is, in fact, how Medicare and Medicaid work at the moment.) The challengers also pointed out that the problem the provision is attempting to solve is one created by the government in the first place: namely, the government forces emergency rooms to treat those who cannot pay, and it forces insurance companies to insure high-risk individuals. If it did not do those things, there would not be a free rider problem, and so there are other solutions than the mandate imposed by the PPACA.

During the arguments, the justices focused particularly keenly on two problems with these issues: (1) are the health markets unique, and if so, what specifically is the limiting principle that will stop the federal government from engaging in compulsory purchase in other markets? and (2) if the challengers concede that the federal government can force people to purchase health insurance at the point of purchasing health care itself (which, apparently, they do concede), what is the problem, precisely, with moving that point of compulsion forward in time, when it will have the most beneficial effects?

A lot of today’s commentary was along the lines of “Obamacare in danger of being struck down,” because the justices seemed particularly pointed and hostile in their questioning, but I think this is premature. The mandate may be ideologically horrific to the average American mindset, but that does not mean it is unconstitutional. And the role of the justices is to pick holes in the arguments and expose the weaknesses; that doesn’t mean those weaknesses are fatal. The most aggressive questioning came from Justice Scalia, and I admit the Solicitor General didn’t seem particularly articulate in his answers—at one point, Justice Sotomayor summed up his argument for him much better than he had done, and he didn’t seem to notice—but that doesn’t mean his points are invalid.

There were a lot of other issues and sidelines in the arguments, but there was one point that came out pretty strongly to me, and it was made by Michael Carvin for the challengers. What he argued, in effect, was that the government’s own argument is self-contradicting. At the moment, people with insurance effectively subsidise those without. Under the PPACA, people with insurance will effectively subsidise those without. There is no difference in where the cost is borne; it is always borne by the people with insurance. What the PPACA proposes to do is to increase the pool of insured people to pay the subsidy, thereby spreading the cost over a larger base. The PPACA itself, and the government, admit this is the entire purpose of the mandate: to make healthy people who do not currently purchase health care purchase insurance in order to cover the cost of those people who cannot pay for the health care they purchase.

Therefore, the government is implicitly admitting that there are some people who are outside the market, who need to be drawn into the market in order to spread the cost of subsidy around—and since that is the whole purpose of the mandate, the existence of the mandate demonstrates that not everybody is a participant in these markets, and therefore are not engaging in commerce that can be regulated in this way by Congress.

It’s a neat little argument, and I wish he’d been more explicit about how circular it is. He does call it “bootstrapping,” though, and it’s true. If everyone was a participant in these markets, which is the government’s justification for this falling within the power of the Commerce Clause, there would be no need for the mandate; but because the point of the mandate is to make everyone participate, it is itself an admission that not everyone does, and therefore it can’t be justified by the claim that everyone is already a participant, because if they were, the government wouldn’t need to mandate that they participate.

The only other interesting thing to point out is that, although everyone involved seems keen not to get into the merits of the law as a whole, with the whole, y’know, making sure people don’t bankrupt themselves in order to stay healthy, the people who are most prone to talking about the merits of the law appear to be the justices themselves. This is why I think the commentators are premature: while it’s nice to think that Supreme Court judges are impartial, they’re not. They’re perfectly capable of allowing their approval of the aim of the PPACA to bias their views on its constitutionality—and by the same token, of allowing their repugnance at the methods of the PPACA to affect their judgment of its intention.

And that’s true of a lot of people right now, I think. Health care in the United States is totally fucked up, and I don’t think it’s really possible to dispute that. However, the PPACA is not the only possible solution to the problems, and my personal view is that it’s about the worst one, in fact. But people on the right are in danger of defending a really shitty situation when they attack this law, and people on the left are in danger of defending a really shitty law when they attack the current situation.

This is why, going back to the beginning, the label “Obamacare” is so pernicious. Would people really be as blindly and tribally partisan about this law if it didn’t involve a cult of personality and were, instead, the boring old PPACA?

Read the transcript for Monday’s arguments.

Read the transcript for Tuesday’s arguments.

Feb 192011
 

I’ve decided that ‘electoral reform’ is an issue so utterly pointless in the modern British polity that it deserves me taking the piss.

For your pleasure and mine, I’m going to provide alternative answers to Yes2AV’s FAQs.

Q: How does AV work?
A: It destroys even the fig leaf political parties have to wear of possessing a consistent, unified ideology about how governing should take place, and instead replaces it with a system in which contradictory, populist vote-chasing sets of laughable ‘policies’ are constitutionally enshrined and pursued by all political parties at one and the same time.

Q: So what’s the point?
A: There is no point. You’ll still only get to vote every four years, and the Government will still do whatever the fuck it wants, manifestoes be damned.

Q: Isn’t that too confusing?
A: Only if you possess insufficient intelligence to observe that even under AV, your ‘fairer’ vote won’t necessarily deliver a candidate or Government of your choice.

Q: Isn’t it fair that the candidate with the most votes wins?
A: Nothing is fair when ‘fair’ is defined as ‘not losing, ever.’

Q: Doesn’t that mean that some people get two votes?
A: Yes. In fact, more than two; some people might get as many votes as n-1, where n is the number of candidates on the ballot paper. And even then, the candidate in second place still loses.

Q: Don’t you end up with the Least-Worst candidate?
A: You end up with a Labour or Lib Dem candidate. Whether you consider that ‘Least-Worst’ is up to you.

Q: Do I have to give a 2nd preference if I don’t have one?
A: Not yet. But it’s only a matter of time before all of this shit becomes compulsory in the name of ‘fairness.’

Q: Will my ballot change?
A: Yes. Right now the ballot is designed so that even the illiterate and innumerate can vote. Do you really think that a voting system that requires people to be able to count and write in actual numbers won’t result in a total re-design of the ballot to make it more accessible? Get real.

Q: Who uses AV?
A: Almost no other democratic country in the bloody world. The one that does—Australia—has had a hung Senate for 25 years. In its House of Representatives, the same two factions exchange control every couple of elections. But I guess this regularly alternating result, identical to what happens in the UK, is okay with the voters, since at least their votes were ‘fair.’ (UPDATE: Their votes were also compulsory.)

Q: Who benefits?
A: Whichever two of three main political parties are the most similar to each other.

Q: Who loses out?
A: Everybody else.

Q: Wouldn’t AV mean more hung Parliaments?
A: Probably. But surely that’s the idea? No winners = no losers = ‘fair.’

Q: Wouldn’t AV mean more tactical voting?
A: All voting is tactical. Get over it.

Q: What about the constituency link?
A: MPs who actually care about their constituents will do so whatever the electoral process. MPs who don’t, won’t. This is true even in marginal seats.

Q: Wouldn’t reform help minority parties like the BNP?
A: Of course not. Extremists don’t deserve ‘fair’ votes.

Q: Doesn’t the current system let us ‘kick the rascals out’?
A: Not really. But then, if Australia is any indication, neither will AV.

Q: Won’t election night take longer?
A: Yes. It will also be more susceptible to unintentionally spoilt ballots (“Hey, this one has two 1s! DOES NOT COMPUTE.’), mistakes (‘Are we on second preferences now, or third? I’ve been counting for 15 hours straight and I’m bleeding to death from paper cuts.’), and fraud (‘That 2 totally looks like a 1. Yay, another vote for Labour!’).

Q: Will AV boost turnout?
A: No. AV won’t make busy people less busy, apathetic people less apathetic, or disenfranchised foreigners, prisoners, and homeless people less disenfranchised.

Q: Will AV change things on the campaign trail?
A: Yes. Candidates will promise even more of the bland sameness than they do now. Good luck with your Hobson’s Choice.

Q: Why a referendum?
A: Because even though we elect representatives to make every other decision about our lives, our country, and our money, and this is considered right and proper in the case of (for instance) letting the people determine Britain’s role in the United States of Eurasia, whether we put Xs or numbers on a ballot paper every four years is way too important to be left up to those jokers. After all, this is the one instance in which the public choice problem is admitted to exist.

Q: Isn’t First-Past-the-Post a British tradition?
A: Yes. Which is why it MUST GO. You fucking racist.

Q: Do the public even care about voting reform?
A: No, which is why this referendum doesn’t require over 50% of the electorate to vote in it for it to count, and why it’s being held at the same time as notoriously low-turnout local elections. If the public really cared, as represented by their representatives, we’d get a special Referendum Holiday with voting booths on every street corner.

Q: Isn’t electoral reform just for Lib Dems?
A: No. It’s for Labour too.

Today’s episode has been brought to you by the colour There’sStillOnlyOneWinner and the letter GTFOverIt.

Jan 202011
 

It appears that the House of Representatives has voted to repeal last year’s bloated healthcare act and has put committees together to draft new legislation to replace it—without a timetable.

As you will know, the ‘without a timetable’ aspect is something I lean toward favouring, as I criticised the act heavily, in large part for this reason:

Obama and his Congress sure did fuck it up, didn’t they? Instead of doing thorough research, either before the election or after it, and determining the best possible way to ensure universal, affordable healthcare, they cobbled together a travesty of a bill, full of unrelated pork to get various hold-out politicians onside, that when all is said and done, could serve as an exemplar of what every rent-seeker (in this case, the insurance industry) hardly dares even to dream.

But this vote is not a repeal in itself, of course. That whole ‘checks and balances’ thing means that the repeal bill will have to go before the Senate and win passage there, and then go before… the president. And, typically:

Democratic leaders in the Senate have vowed to shelve the repeal bill, and President Obama has said he would veto repeal if it ever reached his desk.

‘Shelving’ essentially means that the Senate Majority Leader, one egregious Harry Reid, can simply refuse to put the House bill onto the Senate’s legislative timetable—more or less indefinitely, if he so chooses. And even if, by some miracle of organised crime, intimidation, and sweet sweet reason, Republicans get the bill put on the Senate timetable and manage to pass it there, Obama can employ a number of veto tactics depending on when over the course of the legislative session the bill is presented to him. (Although he is required to submit his reasons for vetoing in writing; I wonder what boilerplate he’d spew on that occasion?)

The Congress can override the veto, but only with a two-thirds majority vote in both houses. So that’s pretty unlikely unless the Tea Party start getting uppity again.

I’m pleased the Republicans in the House have taken this first step, and they have a backstop in the fact that the healthcare act is being challenged in a number of cases and has already been ruled unconstitutional by a federal judge. (That ruling is under appeal, naturally.)

But they won’t get anywhere in the absence of some serious pressure from the American people, and given how the sheeple are, and how blind the Democrats are to protest and demonstration when it’s against their policies, I think the actual repeal of this hideous act will not occur. It’s more likely to be struck down by the high court, and even that’s pretty pie-in-the-sky.

Still, I wonder if the Democrats will now begin to hyperaccuse themselves of being obstructive, partisan, and resistant to the expressed will of the demos. It’s hard to imagine anything that demonstrates those qualities more than:

Democratic leaders in the Senate have vowed to shelve the repeal bill, and President Obama has said he would veto repeal if it ever reached his desk.

UPDATE: Hmm, seems I forgot about those little things called states…

May 162010
 

Via Tim, I see that the United States has leapt into the rabbit hole.

The very same administration-to-be that campaigned on a platform of restoring the civil liberties eroded by Bushitler etc. to Americans and everybody they arrested is now, er, taking more of them away than even Bushitler did.

Several weeks ago I saw a story on a blog somewhere about Obama’s authorising the assassination of an American citizen abroad (sans due process, naturally) because he was suspected of terrorist activity. I didn’t write about it then because I was sure it was a right-wing conspiracy lie.

Apparently it’s not.

Other restorations of our civil liberties include proposals to deny terrorist suspects arrested on US soil their Miranda rights, strip American citizens accused of terrorism of their citizenship, and treating American citizens arrested for terrorism as enemy combatants and barring them from trial in normal American courts.

I’m a bit confused about this, because while I obviously think restoring civil rights is a wonderful thing, these plans all sound to me like stripping Americans of every possible legal and Constitutional protection based solely on an accusation of a particular crime.

Perhaps the definition of ‘civil liberties’ has Changed™ since 2008. Perhaps, as appears to be the case, this legislation has been proposed by eeeevil Republicans. But if the latter is so, why are the good and kind Democrats in charge not screaming bloody murder about it? Why are they not swearing with their every last breath to use their Congressional majority to kill these bills stone dead?

And why, in the name of all that is holy, has the era of Hope and Change not only not reversed any of the rights-abuses perpetrated by the previous administration, as was promised, but perpetrated new ones itself?

Not that I ever expected him to be, but Obama is surely not the saviour he tried to make us all believe he was. And I absolutely do not understand why it is an outrage for Bush to read our emails but it’s fine for Obama to authorise the assassination of an American citizen. I do not understand why it is an outrage for Bush to deny foreign terrorism suspects their rights but it’s fine for Obama to do the same to American citizens on American soil. I do not understand why it was good that Obama was going to try Kalid Sheikh Mohammed in a civil court in Manhattan (where he would never get a fair trial), and now it’s also good that Obama’s not going to try American terrorism suspects in civil courts (where they might just have had a chance at a fair trial). I do not understand how American Congressmen can even propose this sort of thing during the administration of a constitutional lawyer, when the merest idiot can see that it’s plainly unconstitutional. There are no exceptions for terrorism in the Bill of Rights.

Are Americans really that frightened of terrorism, that they’re willing to put up with this stuff? I mean, the last time our government started abusing its own citizens, we had a giant fucking war with it.

And to be fair to him, it’s not just Obama at fault. Given that Republicans (including would-be president John McCain) have proposed a lot of this legislation, I’m afeard for what will happen if they win a majority in the elections later this year.

In fact, I’m afeard, full stop. Maybe it’s time to look into getting British citizenship after all…

May 082010
 

Whenever constitutional reform is mooted here in the UK, the drive seems to be something along the lines of: the executive has too much power, MPs have too little, and oh yeah, unelected Lords have no place in a democratic nation. (Let’s pretend in this discussion, for the sake of simplicity, that the Lisbon Treaty hasn’t made Parliament redundant.)

What kind of reforms would be required, then, to address these perceived problems?

The House of Lords is easy: sweep out all of the old peers and bishops and allow people to stand for election. Presumably the old peers and bishops would be permitted to stand if they wanted to; certainly they would have to have the franchise returned to them.

It’s not as easy as that, though, is it? First of all, how many members of an elected Lords should there be? Will it be fixed, or determined by population the way Commons constituencies are? Should it even be called the ‘Lords’ any more? What will be the length of term – same as the Commons, or staggered, or fixed terms? What will its constitutional functions be?

At the moment, its high-court responsibilities having been snaffled away, the Lords exists primarily to scrutinise Commons legislation. Because the lords themselves are supposed to be non-partisan, they are meant to be able to judge legislation on its merits, rather than according to who drafted it and who’s whipping them into place. In reality, however, the Lords rarely scuppers Commons legislation. A part of the reason for this is probably because they are unelected, and Commons legislation is supposed to represent the will of the people. Another part is probably because, though supposedly non-partisan, a great many of the lords themselves are ex-party higher-ups. Does anyone really think Kinnock, Mandelson, and Martin, for example, have been busily scrutinising Commons legislation on its merits?

So we end up with a conundrum. The lords are granted the power to scrutinise legislation, but only because they are meant to be non-partisan. But non-partisan also means unelected, so they can’t scrutinise too closely or they’ll be usurping the power of the people as represented by the Commons. But if we start electing them, they’ll no longer be non-partisan, and there will no longer by any point in their scrutiny because it won’t even have the current veneer of disinterest.

Okay, that’s a little too tough for a Saturday afternoon. Let’s look at MPs and the executive, because they go hand in hand. Absent the European aspect, the reason MPs have so little power is because the executive has so much. The executive controls the parliamentary calendar of bills, it introduces bills, it whips its party’s MPs to vote on those bills. Ministers have extraordinary powers in their departments to introduce measures that don’t have to go before the Commons at all. This is why the executive is called the Government, and the Commons is just a bunch of fat-chewers.

The current hung parliament really throws this into stark relief. Why is there such consternation? Because Britain, at this precise moment, has no government. Or rather, no Government. The people have had their say, and there is certainly a legislature. But the legislature can’t act, because no executive exists to, well, execute any action. The executive is, by constitutional tradition, the leaders of whichever party holds a majority of the seats in the Commons. No majority means no executive means no Government means that, even though MPs have been duly elected all over the country, they are sat on their asses with nothing to do at the moment. They are, in a word, powerless.

Now, that’s weird, isn’t it? Normally MPs have no power because the executive is over-bearing. But then we discover that they also have no power when there is no executive at all. So what is the point of MPs, exactly?

Quite clearly, then, we see that the only purpose of MPs is to provide a count by which it is determined which party’s leaders will rule the country. The electorate are not choosing a person to represent their interests in the legislature; they are choosing a counter for the party’s leaders to whom they wish to give power. After an election, the party leaders tally up their counters, and whoever has more than half gets to be dictator for 4-5 years, as long as he maintains his number of counters. He gets to choose the rest of the executive, and the executive rules the nation.

We can see now how pathetically laughable are all of the ‘reforms’ that have been mooted to give some of the executive’s power back to the Commons. Committees? HA. Relaxing the whips? Slightly more muted, but still ha.

The only thing that will transfer power from the executive to MPs is to change the way the executive is chosen. And the obvious solution is for the people to elect the executive separately. We can even be generous and just elect the Prime Minister separately. Then parliament can approve, by vote, his or her Cabinet choices.

Except – wait! Remember that newly-elected House of Lords with little to do because their partisanship has destroyed their previous role? Hey, why don’t we let them ratify the Cabinet? Let’s let them ratify the executive’s choices of important judges, too, just for funsies. Keep them busy with something, since we’ll be paying them to sit there. And maybe they can still have their scrutiny of legislation, because the balance of parties in the Lords may be quite different from that in the Commons.

We can also open up the Commons a little bit too, now. The parties can still have their whips, of course – otherwise what’s the point of parties? And the executive can even decide the calendar. But instead of introducing legislation, the executive will have to get its MPs to do that – because of course the Prime Minister et all won’t be members of the legislature any more. So now the legislature will actually be able to control legislation. As it should be.

And so at the end of all of this, we get a less dictatorial executive, a legislature that is actually in charge of legislation, and a democratically elected House of Lords (or House of Whatever) that can act as a legitimate check on the power of the Commons. We’ve spread all of the power around, you see, and because every elected representative will have a greater say in what the government does, so will the people who elected him (or her). The democratic deficit is reduced, the parties become less tyrannical –

– and there are no more hung parliaments.

What’s not to like? Come on, you constitutional reformers out there: propose something like this, and maybe we can stop nominating you for Biggest Bullshitters of the Millenium award.

Dec 102009
 

A gentleman called Mark Higginson left a comment recently on the older wordpress.com version of my blog, directing my attention to a project he’s been working on called Magna Carta 2009.

Despite the name, it bears more resemblance to a constitution than the original Magna Carta Libertatum, and it contains some interesting features, not least of which is that it is designed to come into force through plebiscite after England achieves independence. The document lays out some provisions for its maintenance, namely that it cannot be altered, once passed, except by further plebiscite, which alters the current relationship between demos, Parliament, and Crown (and is especially interesting given the growing numbers of culturally non-English voters in England).

The author, having asked me to comment, duly received some input, and he then requested that I tell others about his project so that they may make their own comments known, if they wish. Being a pleasant, obliging sort of lady, I duly draw your attention to the following articles of Magna Carta 2009:

From the section entitled The English Government:

VOTING IN ENGLISH REFERENDUM, shall be compulsory whether referendums are for general elections, national referendums on other national issues, or for voting in and for County councils and matters of county wide importance. There shall be a fine for anyone who does not vote without good cause for doing so.

From the section entitled Law and Order:

IT SHALL BE ILLEGAL for anyone (English people or not), to harm the flag of England in public or before a public gathering at a private function or party or other gathering in any way, as a form of protest either by stamping on the flag, ripping or tearing or cutting the flag, setting fire to the flag, or any other action against the flag in a manor designed to cause offence against the flag of England, England or the English people. Such action if proved in court shall carry a penalty of five (5) years in prison without the possibility of parole.

From the section entitled Rights of the Individual:

ALL ENGLISH PERSONS, regardless of age, have a right to free health care, clean drinking water, nutritious food and a clean environment, as well as a right to protection from any activities that can harm welfare and development.

ALL ENGLISH PERSONS have the right to privacy, provided that such privacy is not used for criminal or inappropriate acts that could result in court action or harm to others.

Nothing in this Magna-Carta-2009 shall give the English person the right to bear arms, except under the current rules for fire arms licensing.

THE ENGLISH GOVERNMENT SHALL help to restore an English person’s health, self-respect, and dignity, regardless of age, after abuse or neglect.

EVERY ENGLISH PERSON has the right to freely participate in English cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits, and have the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

From the section entitled Rights of the Worker:

There shall be a set of minimum wages worked out by the English government for work done depending on age and experience.

THE RETIREMENT AGE for both men and women shall be 60 years. However, nothing shall stop a person from working beyond that age, without loss of state pension, if they so wish.

From the section entitled Education:

THE OFFICIAL LANGUAGE of England shall be English as spoken in England during the Anglo Saxon times before the Norman Invasion of 1066 and the modern Queen’s English as taught and practised in England during the reign of Queen Elizabeth II.

THERE SHALL BE THREE official dictionaries, an Anglo Saxon English dictionary dated to 1065, and a standard English Historic dictionary dated from 1066 to 1957. The third dictionary shall be the Standard Queen’s English dictionary dated during the reign of Queen Elizabeth II. The last dictionary shall be an English dictionary without any additions from foreign influences.

From the section entitled Other Matters:

ALL UTILITY COMPANIES, regardless of weather they are publicly or privately owned, be they gas, electricity, water or telephone companies, shall have a duty of care to their customers, and ensure that connections remain in place, regardless of the customers ability to pay.

OPENING HOURS FOR THE PURCHASE and consumption of alcohol at all ale houses, public houses and other establishments where such activities are carried out by the public, for the day time Mondays to Saturdays shall be from 11.00 am to 03.00 pm, with time called at 02.30 pm. On Sundays the time will be 12.00 noon to 03.00 pm, with time called at 02.30 pm. Opening hours for the evening times, Monday to Saturday shall be from 07.00 pm to 11.00 pm with time called at 10.30 pm. On Sundays the time will be from 07.00 pm to 10.00 pm with time called at 09.30 pm.

OTHER ESTABLISHMENTS MENTIONED ABOVE shall include but not be restricted to; Supermarkets, hypermarkets, off licenses, private clubs and establishments, nightclubs and private parties.

PRICING FOR ALCHOHOLIC BEVERAGES shall be equalized between ale houses and public houses, and all other establishments that sell alcohol, so that all bottle and case prices are the same, including barrel prices and prices by the bottle and glass. In all such establishments there shall be no reduction of prices, including such things as happy hours, etc.

From Appendix C:

PRIMARY SCHOOLS.

Structured rudimentary teaching in the following core subjects;

Maths (no electronic calculators), Anglo Saxon English, Religion (Christianity), Science, Queen’s Modern English, Geography, English History, World History, French, Art, P.E., Swimming, ICT.

SECONDARY SCHOOLS

A continuance of original core subjects, plus the following additional core studies;

Basic money management, Historic English (Between 1066 and 1960), Cooking, Relationships between all people.

Appendix D contains a primer of English etiquette, including:

Women are usually independent and accustomed to entering public places unaccompanied. It is usual for women to go out and about on their own as well as with friends. Men and women mix freely.

It is ok for women to eat alone in a restaurant.
It is ok for women to wander around on their own.
It is ok for women to drink beer.

These are only the features that leapt out at me as significant, upon several readings through the text. There is much more, which I have left out as being largely unremarkable or uncontroversial. Mark Higginson, the author, welcomes your comments here.

Having said all of that, I feel compelled to point out that when I provided the feedback he requested, I was fairly unsupportive of this document. I do not believe he will ever get anywhere with it, for numerous reasons, but my overall impression is this: this document is so different in scope, tone, and content from the Magna Carta Libertatum as to be wholly unrelated to it. I have trouble imagining how this could possibly be based upon the original, as its author claims. It is no more a charter of liberties than my grocery list. It is a restrictive, self-conflicting, and invasive constitutional treatise, many of whose articles cannot be guaranteed except through the coercive power of the state, and sometimes not even then. Maybe it is the sort of thing English people want. But somehow I doubt it.

Nov 072009
 

Via the West Virginia Rebel, I am directed to some commentary about the recent shooting at Ft. Hood.

For those of you perhaps not au fait with this, as it happened on 5 November, a US army psychiatrist recently promoted to the rank of major and about to be deployed to the Middle East entered a building on the base at Ft. Hood and opened fire on the soldiers and civilians there, killing 13 people and injuring at least twice that number. He himself was wounded but not, apparently, killed, and is in hospital.

Mark Noonan, who should himself perhaps consider seeing a psychiatrist, reacts with all the illiberal, childish venom I’ve come to expect from American political discourse:

A terrible event – but I don’t want anyone to call it an “act of violence” or “a terrible tragedy”. It was an attack – one or more men decided with malice to attack a US military base. We need to get right down to the bottom of this – and, liberals, if the stories of accomplices in custody are true, this is where harsh interrogation might be needed: whoever was involved in this most emphatically does not have a right to remain silent.

This shooter, however heinous his crime, is an American citizen and, before two days ago, would have been just as staunchly defended by these types as a patriot to be supported with the ubiquitous yellow ribbon.

Now, apparently, he deserves torture and the loss of his constitutional rights. Why?

Because (a) he shot some soldiers, whose lives are evidently de facto more valuable than anyone else’s, at least when they’re on home soil. And because (b) he happens to be a Muslim.

I’ve read no credible reports to suggest that this shooting was any more a ‘terrorist’ attack or any more religiously or culturally motivated than, for example, the shooting at Columbine High School in 1999. What I have read is that the man is a natural-born American and served his country for decades before choosing this destructive course of action. That he is a Muslim, or the child of immigrant parents, means nothing.

Mark Noonan and his commenters, many of whom are crazier than he is, would deny this man the protections the law gives him because they don’t like what he did or the reason for it which they ascribe to him. Shooting people is a dreadful thing to do – one for which I am hard pressed to express my feelings – but overturning the rule of law because you’re a pissed-off little prick is arguably more dangerous. A gunman can only harm people within the range of his gun; a mockery of a justice system propped up by a democracy that excuses torture harms everybody.

Jun 202009
 

wh00ps has written a post, complete with picture of the story in the newspaper, about the trial of 4 men accused of an armed robbery at Heathrow, now to take place without a jury.

It made me wonder, for all that trial by jury has been a part of the British polity for centuries, why we use juries in trials at all. And came up with this:

The state acts as the arbiter of justice on behalf of its citizens; everything the state does, legally, is in the name of and as a proxy for the citizenry of that state. In order to preserve this legal idea, legal responsibility and, if necessary, restitution, must be decided on by some representative group of citizens (a jury), who provide the consent of the citizens in general to the courts decision, and legitimise the action of the state on their behalf.

This development – trial without jury – turns its back on the concept that the state is acting as proxy for the citizens. It undermines and even denies the idea that it is the people who are sovereign, who direct the actions of the state, and who give their consent to those actions through representative groups.

This is the state assuming ultimate authority; this is one of the state’s great ‘Fuck you’s to the people of Britain. It is now acting without your consent; it has deemed your consent unnecessary. It has denied you an election, it has denied you the chance to be the arbiter of your representatives’ behaviour, and now it is denying you representation at all. The laws of this country are no longer made according to the will of the people; the courts will now no longer operate according to the will of the people; the State is all – your consent is unnecessary – your sovereignty has ceased to exist – you do not govern yourselves – this is not a democracy. The State is separate from and superior to you, and the consent of the governed to be governed is no longer required.

You have given away your collective power, and now the State sits in judgment of you, not your fellow citizens.

I would say you have allowed this to happen without a murmur, except that I’m sure everyone who reads this blog has been murmuring, asserting, shouting, and screaming it to the skies for some time now. It is everyone else, who goes about his or her daily life without any thought or care of being the servant instead of the master, who should be ashamed today.

Jun 152009
 

Habeas corpus, as far as I understand it, is simply a writ that a detained individual is being held to await the judgement of a legally constituted court of the validity of charges against him:

corpus…habeas…ad subjiciendum et recipiendum ea quae curia nostra de eo adtunc et ibidem ordinare contigerit in hac parte.

It is a constitutional principle only insofar as the writ demands that proof be presented to the court that the detention of the individual is lawful; it also states that without such convincing proof, the court will release the individual. A detained individual has, therefore, the right to challenge the charge and evidence against him before he is formally tried. If the charge and evidence are found to be valid by the court, he will then be remanded to await trial.

There appears to be some debate, at the Devil’s Kitchen and at Tom Paine’s, about whether this appears in Magna Carta. It doesn’t, obviously, as Magna Carta is a charter of liberties, not a legal writ that refers to the detention of a specific individual. However, Magna Carta does protect and confirm the legal necessity for writs of habeas corpus in Article 39:

nullus liber homo capiatur, vel imprisonetur, aut disseisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super cum ibimus, nec super cum mittemus, nisi per legale judicium parium suorum vel per legem terre.

The necessity of providing proof that an accused individual ought to be detained, and his right to challenge that proof before a court, already existed in legem terrae; Magna Carta confirms them.

Tom Paine says: ‘For the first time in history, it limited the power of the state. It ended the rule of men and began the rule of law.’

This is not entirely accurate; what Magna Carta actually does is enumerate legal principles that already existed, but which John had routinely ignored or infringed; for the first time, Magna Carta enshrined what all men already held to be true, that the monarch was bound to observe his own laws. That Magna Carta had to be written, and John had to sign it, is merely a function of common law: it created a recorded precedent, thus overriding what had already been convention.

It is also slightly unfair to say that ‘you will be disappointed by’ the other articles.

No. 2 confirms the level of payment of relief upon inheritance – in other words, the Crown cannot demand extortionate inheritance taxes.

No. 3 confirms that underage heirs are not liable for relief/inheritance tax.

No. 4 confirms that trustees cannot plunder an underage person’s inheritance.

No. 7 confirms that widows do not have to pay relief/inheritance tax upon their husband’s death.

No. 9 confirms that only movable goods may be seized for payment of debt – not homes or land.

No. 12, 14, 15 and 16 confirm that no scutage (payment in lieu of service, i.e. tax) can be levied without the consent of those who would be paying it, and even then the Crown cannot demand more than what is reasonable and has been agreed upon.

No. 17, 18, and 19 confirm that people must be tried for crimes in the jurisdiction where they reside or in the jurisdiction where the crime took place.

No. 20 confirms that fines for offences cannot be levied arbitrarily, must be proportionate to the offence, and cannot result in the deprivation of livelihood.

No. 24 confirms that courts held by inappropriate authorities are invalid.

No. 27 confirms that if a man dies intestate, the Crown cannot seize his effects.

No. 28, 30, and 31 confirm that the Crown may not take a man’s property without payment.

No. 32 confirms that the Crown may not freeze or otherwise control a convicted felon’s assets for more than a year and a day.

No. 35 confirms standards in weights and measures.

No. 36 and 40 confirm that the Crown may not deny, delay, or sell justice.

No. 38 confirms that no man may be tried on the basis of hearsay or without the evidence of independent witnesses.

No. 42 confirms the free right of movement into and out of the country.

No. 45 confirms that only men who know and observe the law may be appointed to enforce or decide it.

Each one of these is tremendously important and not a function or product of circumstances limited to 1215. How many of them, I wonder, has the current government infringed?

Jun 092009
 

A commenter at the Devil’s Kitchen, who obviously couldn’t be bothered follow the link over here to leave his correction, says:

I appreciate your position, but Bella’s interpretation of Protocol 1 Article 2 of the ECHR (which she calls a ‘charter’) (and thus the Human Rights Act) is incorrect- and I wouldn’t want you to be misinformed by it (and I’m not suggesting that it is).

It is actually a reinforcement of a negative right, rather than a positive – ensuring that citizens have a right not to be denied an education. It certainly doesn’t compel subscribing states to provide an education.

The protocol doesn’t provide for “the right to an education”, nor does the Human Rights Act itself.

On the issue of healthcare , the convention doesn’t even mention the subject, so that straw man is knocked down. Only health is mentioned in the context of public authorities not interfering with the rights set out by the convention except for where the protection of health requires it.

He is right; I was thinking of, not the European Convention on Human Rights, but the UN’s Universal Declaration of Human Rights, which says amongst other things (emphasis mine):

Article 22
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 25
(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

Article 26
(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages Elementary education shall be compulsory Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

And so I stand corrected.