This is a developing collection of material on constitutional matters. Many of the items were originally prepared for the newsletter of the Victorian Chapter of the Constitutional Centenary Foundation in Australia, which I edited in 1996 and 1997 when I was a committee member. Although it was originally written for Australians much of it may still be of wider relevance.
Unfortunately the CCF decided to censor and suppress material instead of disseminating it, apparently for reasons of political correctness and even though the material they found offensive had a disclaimer, so this collection also includes some of the history of the exercise in censorship. In case you think legal action is extreme and that the matter properly ought to be resolved internally, you should be aware of two things:-
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As I notice that the Victorian Chapter of the CCF has been assisting at the Melbourne Convention, I should inform you that there is some reason to believe that its behaviour may not be wholly impartial. By way of example I attach an extract from an unpublished letter to the media containing information that is demonstrably both true and in the public interest.
No doubt CCF representatives will claim that their behaviour was justified. That remains to be determined by the courts. However for present purposes the issue is not whether they felt justified before their own consciences. It is whether these things occurred and also whether the fact that they did was also kept from public attention. In fact, it would matter even more if it turned out that the CCF was entitled or even obliged to suppress information without letting it be known that this was happening, because it is precisely such behaviour that would diminish the public's ability to rely on the CCF. This affects both the CCF's broader remit and also its handling of the Melbourne Convention. Any attempt to claim justification suggests a continuation of the same attitude that led to this behaviour in the first place, and might detract from the Convention. It appears to me that they cannot afford to be in the right, because it would completely undercut their credibility.
Further and better particulars of this and other recent CCF(VIC) activity, including proof of assertions contained in the attachment, may be obtained from my solicitors, Best Hooper. This shows that matters do not relate to an isolated incident but to a general pattern of similar handling of materials by the CCF(VIC).
I hope that you find your Convention proceedings satisfactory.
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Mr. Strempel (18.2.98) warns against slipping into censorship through following the advice given by Mr. Geeves (16.2.98) to its logical conclusion. Some people have already done exactly that.
The stated aims and objectives of the Constitutional Centenary Foundation are "to promote and facilitate an informed public discussion on the Australian system of government during the decade leading to the centenary of Federation in 2001. It is independent, firmly non-partisan and has no predetermined views either on the need for change or the form which any changes might take."
This is the body of a motion put to a special extraordinary meeting of the Executive Committee of the Victorian Chapter of the CCF last year:-
That the Victorian Chapter confirm that its newsletter is intended to further the aims and objectives of the Foundation and in furtherance of them to provide relevant information for Chapter members and others sharing an interest in these aims and objectives, and accordingly resolve that:
- a) The "Summer 1997" issue not be further distributed;
- b) All remaining copies be destroyed under the authority of the Secretary
- c) All aspects of editorial responsibility be reviewed by the committee
This goes beyond selectiveness. They wished to destroy an already existing authorised publication, including more than the material they objected to. Some contributors were the Hon. Mr. Justice Howard Nathan (who assisted at the Constitutional Convention) and former Administrator of the Northern Territory the Hon. Austin Asche AC. As one of three people who worked directly on that issue I had researched an alternative republican model, which I would still like to present.
As all internal remedies have now been exhausted the matter is going before the courts. It is case 9710156 of 1997 in the County Court of Victoria at Melbourne.
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Following comment on the article "Devil's Dictionary", it has been agreed that future articles including controversial views are to be accompanied by the author(s) name.
pp. Ken Coghill - Convenor, CCF (Victorian Chapter).
In order to give effect to this and related directives of the executive committee, another directive requires us to keep committee members informed of work on the newsletter as far as is practical. Between times the editorial subcommittee meets regularly, so that we maintain a general awareness of how far we are putting our policies into practice - for instance, keeping a general sense of what might be controversial.
One of the other areas raising concern was the possibility that articles might be "critiqued" in such a way as to modify the sense and falsely attribute views to the original author. In some cases, to avoid this, we must present certain items in the form in which they reached us for publication. For single articles our only alternatives are selective cutting - equally distorting, and contrary to the spirit of the concerns raised - or complete omission. Yet to do this would be deliberately to withhold information from our readership, contrary to our duty "to take active steps to obtain a balanced presentation of material from the full spectrum of work in constitutional matters in order to facilitate discussion of substance on matters within our terms of reference".
Obviously we cannot publish everything, if only for reasons of space, yet if we must select we must have criteria, and if those are not to degenerate into advocacy they must be objective. Mainly, we are judging matters by their potential consequences: are those material or not? Whether anyone agrees with all the views presented or not, the fact remains that they are out there in the wider world and it would be ostrich-like to deny their existence. It might even lead to one or another set of views prevailing not through any active merit but through nobody noticing their infiltration. As Edward Augustus Freeman remarked in an early study of racism ("Historical Essays", Third Series, 1879), "... I must emphatically say that nothing can be more shallow, nothing more foolish, nothing more purely sentimental, than the talk of those who think that they can simply laugh down or shriek down any doctrine or sentiment which they themselves do not understand. A belief or feeling which has a practical effect on the conduct of great masses of men, sometimes on the conduct of whole nations, may be very false and very mischievous; but it is in every case a great and serious fact, to be looked gravely in the face. Men who sit at their ease and think that all wisdom is confined to themselves and their own clique may think themselves vastly superior to the great emotions which stir our times... But the emotions are there all the same, and they do their work all the same. The most highly educated man in the most highly educated society cannot sneer them out of being."
So, when we have potentially controversial material that it would be irresponsible to omit, we are taking the course of presenting it in as balanced a fashion as possible, with opinion articles from one source presented together with matching articles from other sources. In this way we hope to avoid giving the impression of advocating any single item presented in isolation, while still keeping our readership informed of wider developments. And, if past experience is any guide, it will still be controversial.
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His maternal grandfather was an Irishman who for some reason found it convenient to emigrate to France immediately following the First World War, and if family tradition is correct his great-uncle was the Leopold Kerney who became Irish Minister to Madrid during the Second World War. His paternal grandfather was a Scot who became an itinerant schoolteacher in the Falkland Islands and an inspector of schools in British Guiana before the First World War. His parents met in Algiers and he was brought up in British private schools and various emergent and often violent countries. After three unsettled generations he has been living in Melbourne for the last seven years [i.e. from late 1989 to early 1997].
I got into this whole constitutional area out of interest which derived from various personal experiences and drove various researches - some more obscure than others - and, once I was in it, I pursued some research out of duty because it does help to know what you are talking about. In a chicken and egg sort of way, the research drove the interest and the interest drove the research. On the one hand I now want to share the results of some of this with a wider readership, and I want to repair various gaps which I noticed in other people's work along the way. On the other hand, there are bound to be gaps in my own work, and that's where a broader discussion should be fruitful.
In particular, the work of the Republic Advisory Committee seemed to have some very definite gaps. It concentrated only on certain kinds of republic, only on legal considerations, and only on how a republic would work once it was there. Not only did it omit consideration of monarchist models (which should have been there, if only as a "control" or standard of reference) but also it applied criteria of different strictness as between various republican models, for instance as between a popular and a parliamentary election of a president. It neglected cultural, defence, and political issues in the broader sense, e.g. ignoring realpolitik and understanding "political" only in the sense of party-political. And it did not give much attention to matters of transition to a republic - for instance, when describing the categories of people eligible to run for president in the U.S.A., it totally ignored the transitional category. Ignoring transitional matters implicitly means leaving out a good part of the price of a republic, any republic.
Now, these seem to be less a matter of defects of the committee than common blind spots in nearly everyone's enquiries into a republic. So I decided to put together as much as I could from historical examples that did encounter these missing issues, then adapt them to the Australian situation to make a sort of paper working model of a republic that came from a different direction. The idea is to test out some of these other issues on paper. What I want to do for this article is present a description of this approach and of a way of making a clean transition to it, but without explaining why I picked the features I did. For reasons of space I will not present the historical sources of inspiration that I drew on, or the reasons why I think these various mechanisms might work in handling certain problems that are usually left out of discussions, but I do have fuller notes if anyone wants to see them. Then I will mention a few of the problems that I have not actually addressed - matters outstanding. Because, after all, I do not have any magic secret to solve everything but I do think I at least have enough to move things forward a little - and I do have a mind that is open enough to accept the answer "no"; there may be too much to lose, too little to gain and too much to pay to make a republic worthwhile. But who knows, this study of mine, combined with other things, might lead to more than a paper paradise - or somebody else might be inspired to constructive criticism of my work, just as I was by the work of the Republic Advisory Committee.
The first change is to detach the Australian constitutional monarchy from its explicit links with Britain. At the moment Britain has a method of handling the succession which works reasonably well through the Act of Succession expressing itself through the Council of Accession, but Australia simply follows whatever happens in Britain like the back end of a pantomime horse. It would be a straightforward matter to change the Australian procedures so that they were written copies or equivalents of British ones. The fact that in practice they would lead to the same actual monarchs - at least until one or the other country changed its procedures again - would be a coincidence rather than a dependence on Britain.
Rather than just having a referendum make a constitutional change at some key date like 2001, it should set it up by being triggered by certain key events. Some of this amounts to using enabling measures. The key events would be:-
For election of a president there would be several steps, although only one would happen at a time. There would be an elected vice-president, there would be a popular election, there would be an umpire role for the senate and there would be government input at both State and Federal level on the calibre of candidates. Here's how it would work.
The vice-president would be elected by the people. At any time two years or more after the vice-president's being elected, or whenever the position was vacant, any eligible candidate could move another election. Eligible candidates would be any past or present Territory or State governors, Commonwealth Governors-General, vice-presidents or presidents, or such larger group as parliament might from time to time decide, except serving presidents, current presidents-elect or persons who had stood for Territory, State or Commonwealth parliamentary election within, say, the previous five years. In particular, there would be no other bar by reason of criminal record, etc.
The president would remain in office indefinitely until removed by the following procedure. At any stage, the president or the vice-president - or both - could suspend both of them together, referring the matter to the senate for a decision. The senate would have to make a resolution deciding which of them stayed; that one would become, or remain, president and the vice- presidency would become vacant - but the suspension would remain in force until there was a new vice-president to act as guard. Whichever one was dismissed would have the same option of standing for the newly-vacant vice- presidency as any other candidate, without prejudice. If the senate did not or could not decide within a week, it would be deemed to have decided in favour of the president. Apart from losing an election, this would also be the only method of removing a vice-president. This is flexible enough to handle ordinary retirement as well as misbehaviour, etc.
In practice, the usual case would be that the president would serve for several years, with an honorary vice-president at first and then a future president as vice-president to learn the ropes. (But even an honorary vice- president would be a serious position, as death or crisis could easily lead to a Roosevelt-Truman, Kennedy-Johnson or Nixon-Ford style elevation.) When the time came for the president to move on he or she would be replaced by the vice-president, with the senate confirming it as a formality.
The presidency would need financial and physical resources for a secretariat and protective services, as well as other things like presidential and vice- presidential accommodation, salaries, pensions, etc. None of these could be provided by the government or parliament without destroying its independence. The only practical way to achieve these would be by giving the president, vice-president and their specialist staffs various immunities, exemptions and privileges, even after retirement. The most appropriate is to have full tax exemptions, permissions to raise limited security forces for use in designated presidential areas, and something like diplomatic immunity which could only be waived by the president. Tax exemptions can be worked to produce revenue, e.g. by selling "presidential" alcohol on better terms than anyone else, and the rest gives the presidency a free hand to use it.
Finally, the president would need to be able as of right to summon cabinet members, individually or as a group, to meet him or her and keep him or her briefed, up to a realistic drain on their time. The sanction for this would be that any minister or ministers who refused to comply or who misled the president by commission or omission could be dismissed. Technically this could be done within existing powers. The only need is to spell this use of them out in advance so their exercise in this way would not cause any sense of betrayal.
The Prime Minister and Cabinet would be responsible to the president, but now it would be more like the British fashion - the president would not be dismissable the way that the Governor-General is at present. All matters of prerogative or reserve powers would remain, as now, with the Head of State until such time as other provision might be made.
While this scheme takes some areas into account that most approaches do not, nevertheless it is incomplete. This scheme does not rest on any enquiry into the nature and causes of stability in sovereign states - or of instability, which happens far too often. To ensure stability, we would have to know just what was involved so as not to remove something inadvertently that might turn out to be vital. This scheme does not rest on any enquiry into the financial and non-financial costs of this or any other alternative (including the status quo, monarchy), either in their maintenance or their creation. And this scheme does not rest on any enquiry into any spirit or ethos that might support a republic, and might in turn be embedded in it - the sort of thing that suggested changes to the preamble of the constitution are getting at. That would be some Australian analogue - I will not say equivalent - of the "American dream", and would help both to define Australian identity and to unify the people in that identity (we must be descriptive here, not prescriptive; if people did not fit the vision outlined for them, so much the worse for the vision). No doubt there are many other things that I have not even thought to ask of a republic.
So, with all this, there is much more to do, and I hope it inspires people to follow up what I have left out, even subjecting this work itself to the most searching scrutiny. With that and a similar attention to detail elsewhere it may be possible to develop the requirements not just for a republic but for a viable and successful republic. If you forget something before a boat trip you can't just walk back and get it. The one thing we must not do is to say, a republic is good, therefore it can neither be nor do any wrong; that way denial lies. We all ought to be agnostics when it comes to the merits of constitutional change - particularly ones of such moment.
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Most obviously, this would assert the Australian identity by establishing more plainly a fully Australian system. But there is a more practical reason too. Various details of the transition could theoretically trip up if various events happened coincidentally in Britain at the wrong moments. By having a separate formal structure the transition could not trip over these; they will be mentioned in detail below. Incidentally, this issue of whether to copy something by following or duplicating it comes up in a number of other disciplines; in computer science it is known as making a "shallow" or a "deep" copy, and the differences and reasons for the decision are the same - convenience and lack of added expense, versus having things change in unexpected ways due to unrelated events elsewhere.
There are several reasons for wanting the States to become republics first:-
It is almost essential to make a formal break at the point where the monarch changes - the "demise of the crown" (this doesn't necessarily mean the death of the monarch). For one thing, all sorts of constitutional matters are linked to the idea of the monarch's "heirs and successors", and it would be far more convenient to define those as the new republic than simply to change the requirement. But that would be much harder to make work while the monarch was still around. Politically in the wider sense - that is, in the spiritual and emotional affinities people feel - it would cause more trouble within Australia by hurting people who still felt for the monarchy. If you think they deserve it and should be ignored, think about what you are saying. That is exactly one of the symptoms of divisiveness.
And there might be serious technical problems with amputating an existing monarch. Any measure doing that, or even preparing to do that like a bill for a referendum, would be technically treasonous because it would violate the oaths of office - and in some circumstances really treasonous. While parliamentarians might ignore that at the time, knowing they could push it through regardless, they would always have something hanging over them. Any later political enemy could use it against them, the way some parliamentarians have been threatened with having their pensions removed by later governments for their actions when in power.
Changing to a republic at the demise of the crown is one of the areas that would need to go through smoothly. Suppose British political reasons required a rapid coronation, say to head off a British republican pressure? Then Australia might lose its window of opportunity. On the other hand, suppose Britain became a republic at a time that Australia was not yet ripe for it? Either way, the coupling between the two monarchies needs to be looser, so we need the "deep copy" approach to the succession.
If we just have a trigger based on the demise of the crown, though, this leaves a loophole a mile wide. After all, technically, just making a republic would involve deposing the current monarch if he or she did not abdicate first, so by itself limiting a transition to the demise of the crown wouldn't prevent this. There could still be an amputated monarch, with all the divisiveness and constitutional risk involved. On the other hand, if we have a referendum that only enables a window of opportunity for a demise of the crown that happens without abdication or similar, this removes any temptation for people to pressure the monarch to leave - and one of the republican arguments I have seen in the press was that nobody loyal to the Queen would wish to cause her discomfort by keeping her when there was hostility towards her. But that scenario is exactly one of the divisive ones, because it rewards republicans for pressuring the monarch. We should close off that particular reward for misbehaviour, if only to maintain proper conduct. (This doesn't prevent an abdication, of course - it only prevents using it as a way of fast- tracking a republic.)
There is a simple reason for needing a special parliamentary majority as an additional trigger for a republic. The referendum would be earlier, and the exact circumstances might be different at the demise of the crown - the time might not be ripe. There would need to be a final democratic exercise of discretion, and this seems to be the most practical one available.
It may be suggested that all this would slow down the development of a republic. Mostly, it would require a State-level development to occur at the same time as everything else - it would not delay things. To the extent that it could, it would only do so by insisting on waiting for a gap in the traffic before crossing, so wanting more haste amounts to wanting to go off half- cocked.
There is a good reason for choosing popular election over something less direct, and that is that even if you want an indirect method you generally can't have one, or at any rate not for long. Putting it in as a constitutional requirement is as realistic as a constitutional requirement for full employment - making it come to pass is beyond our means. Jeffersonian democracy became Jacksonian in the U.S.A., so their electoral college evolved into a proxy for the public that gave effect to popular feeling. Similarly the Irish practice is changing to its democratic version right now. And these are not just coincidences. The main fear has been that a popularly elected president could gain an alternate mandate and use it to defy the parliamentary mandate of the government. Yet indirect methods have never prevented this for very long. De Gaulle in ending the French fourth republic, de Valera in ending the Irish Free State, Jackson himself in the U.S.A., Gladstone in defying his party on the home rule question by taking it to the people, Hitler in defying the Nazi Party leadership and taking over the party with a mandate from the members - all these chose their moment, created their own mechanisms for drawing wider support and bypassed formal structures. Randolph Churchill failed, but most succeed because they can choose their moment, and if at first they don't succeed... try, try again. The formal structures do not hold forever, and once the politicians realise that, they usually break their united front. It's almost a standard procedure. March around the walls blowing trumpets a few times, and they just fall down.
So the best bet is not to deny popular election, but to accommodate and channel it. At least that way you get something you will be allowed to keep - if you can set it up. Eire provides a method that spuriously appears democratic but usually thwarts democracy, and this is becoming less and less viable - it is becoming democratic, just as the U.S.A. evolved. What I am describing here is based loosely on Roman practices, although only in respect of a presidency and not the whole machinery of executive government where it would need a great many other things like separation of powers as well.
Each step by itself is simple, and there is no reliance on them all working together at the same time - so although the whole thing might seem elaborate, there is nothing intricate needing everything to work together in a particular way. Also, it rests on one of the ways political convention works, and it resolves some of the anticipated problems of keeping a Head of State responsible without making parliament and the government itself irresponsible.
As far as the public part of it goes, first off every vice-president would be voted on by the public at regular intervals, so every president would have been vetted for acceptability by the public. Yet no election would be specifically for a president, and all party-political ambitions would have been restricted by the bar on potential politicians.
This bar has a practical reason as well as a symbolic one. While many concerns about an elected president have been levelled at too much power accruing to a president, history suggests that the usual risk is from the opposite direction. That is, while there are a few cases like Napoleon III using a presidency to gain supreme power, the usual case is like Stalin, Hitler or Augustus who gathered together and combined several junior functions in one person. So we need to prevent either ministers or vice-presidents being able to double up as presidents or control presidents. The bar on politicians and presidents standing for vice-president, together with the existing requirement that ministers be parliamentarians, creates the desired division of duties and separation of powers. With two interested groups involved, the potential candidates and the professional politicians, the creative tension should enforce the separation. It seems reasonable to overlook youthful indiscretions, so a five year cut-off makes sense, and barring people who only stood as well as those who succeeded would catch the potential as well as the actual politicians. (Ideally, former presidents should be barred from parliament and things in the government's gift too, but that is less important.)
The symbolic effect of eliminating political careerism means that popular elections should avoid the worst polarising pressures. Further, candidates would be drawn from a group of people with similar responsibilities, the governors etc. This means that, rather than being put on the spot when a candidate stood for president, there would be a multi-stage process for each individual - governor, vice-president, president, and he or she could work up to it gradually without any public glare deterring the most fit. This actually reflects the working of the Roman "magisterial republic". Finally, elections would have to be moved by a candidate, so any external populist movement would have no way of taking advantage of a fixed timetable or of creating a situation.
You will recall that a republic of this sort would only come about after all States had become republics. This would mean that they would themselves have some sort of democratic input on the choice of their own governors, so the pool of candidates would be subject to State level influence, popular input, and Federal input (at first from Federal appointment of Territory administrators, and later from any parliamentary widening of the candidate pool). With this the whole thing follows the magisterial republic framework. That involved a pyramid - but not a hierarchy - with junior posts being appointed, and each more senior post being freely elected but with the only realistic candidates being those who had proven themselves at more junior levels. So usually no single election was very contentious, but real issues could let anyone else in without being part of an insider clique. For that last part to work, either governorships would need to be open to the public, or it should be possible for someone else from the wider public to qualify as a vice-presidential candidate - say by the sort of nomination process that Eire has, only more reliable.
When it comes to a vice-president moving up, he or she could initiate the process, and the senate - in keeping with the idea of a house of review - would approve it. In no case would the government or parliament have any initiative, and the only discretion would be one of review with no tactic of delay being available. You see, the system is also designed to be fail-safe for awkward situations when a president or vice-president might need to be sorted out in a hurry.
The fail-safe error-handling of this system works like this. Suppose just one of the president and vice-president is acting up. Then the other refers him or her to the senate. Suppose one is in collusion with the senate. Then they could fabricate a dismissal, but it couldn't stick unless the public allowed it - you could get vice-president and senate dismissing the president, but the public sending him or her back as vice-president so he or she could try to dismiss the upstart. If the senate did not acquiesce in the public's verdict, this could only work as a temporary suspension - but the cycle could repeat indefinitely until the senate itself was replaced by the public. Suppose the president and vice-president are acting in collusion, or out of an unconscious consensus that is different from parliament's, so parliament wants to make a change. Then it can't, but they can only hold out for a couple of years until the public gets a voice - so it only amounts to a delaying power, which is perfectly proper, unless of course the people agree with them which would mean they were right all along, and then the people would sort parliament out. (If there were a consensus among all the governors, well, parliament could always extend the candidate group. But it would be wrong to allow parliament to disenfranchise candidates, as this would open up the undemocratic possibility of manipulation by selective editing.)
In passing, some other methods of handling such problems and limiting presidential powers have serious difficulties. One idea involves a rigmarole with a president only being able to act on prime ministerial advice. But this is supposed to control someone who might not play fair, and someone like that could also subvert the rigmarole. Another idea involves electing a president by a special majority of parliament, but this opens the way to small groups using delaying and sabotage tactics. The person who made that suggestion claimed that this would simply undercut the saboteur group, as the public would get disgusted with them, but we know from history that this is not true. The Parnellites a century and more ago sabotaged the process of Westminster, and the more they did it the more they were esteemed by their constituents - because the constituents did not want to be part of the system. So public disgust would only work as a control for so long as everybody shared the same values. In fact, the idea of people having diametrically opposite values, so that for them right is wrong and wrong is right, goes back so far that there is even a word for it: antinomian.
Most of these potential problems would never materialise under this approach, because they could never get off the ground. This is the way "political conventions" can be self-enforcing, i.e. work without needing a separate enforcing mechanism. A separate mechanism would itself need something to support it, and so on, which can get you into a lot of trouble - it is possibly the main difference between law at a constitutional level and at a lower level, in that other law can rely on something else being there to enforce it. The self-enforcing mechanism here is that it never pays any individual or group to misbehave, so they will rarely create trouble, and when it happens anyway - maybe because someone is temporarily irrational or because of some external factor - the built-in sanctions not only punish the troublemaker but also remove his or her capacity to make trouble beyond the short term. Remember, merely punishing misbehaviour would not be enough, because irrational motives or outside pressures might be enough to override the pain of the punishment.
Last of all, we should notice that this succession approach has two more historical precedents. One is Buggins' turn - widely used in chairing committees. The other is symbolic and cultural, the idea of the old king being ritually slain by his replacement and successor. The Celtic institution of Tanistry falls somewhere near both of these. If there is anything to those ideas that contributes to stability and emotional and spiritual acceptance, well, there they are.
Looking over a great many comparative examples of republics, many of them lean so far in the direction of quarantining their presidents that the presidents can hardly move. That means they are nearly ineffective in those areas where they most need independence of the government in a crisis - and as someone has pointed out, few if any of the proposed republican models would resolve that essential dilemma that was first posed in Australia by the dismissal crisis a generation ago. What is outlined here is something like the special privileges that embassies have in order to carry out their jobs, except that those derive their resources from their own countries. Where embassies might have, say, marine guards and special funds, the presidency would need to be able to obtain something equivalent. Perhaps the best parallel for the protective forces is the way that the Vatican has Swiss Guards and Brunei has Gurkhas, obtained through the cooperation of uninvolved countries. The Vatican very definitely does not rely on Italy for its immediate protection - the Swiss Guards have a real function, over and above their public ceremonial role. However, they have separate sources of funds. How could a presidency get funds, other than through machinery controlled by the government? Through working the exemptions.
One objection to this is that it puts these areas outside parliamentary control. Precisely - that is not only absolutely correct, it is the whole point of doing it. To the extent that it is appropriate to grant the presidency any independence in the first place, it must be real and effective. There is no point clawing it back through the power of the purse or controlling its means of expression, such as protection and information services. On the other hand, if these powers could be misused, they should not be granted in the first place. (If no balance could be struck, this would prove there could be no workable yet safe presidency - evidence against a republic. We should be willing to pay attention to such evidence if it exists.)
In fact, there is a reason why control of some sort is necessary, and that is that corruption should not develop. But this does not necessarily mean that there should be parliamentary control - that is an unconscious assumption out of sheer force of habit. The best way to control this is to have all the special privileges chosen so that they can only be exercised openly, like having inspection ports in the hoardings round a building site - that cuts down on petty pilfering amazingly. While precise accounting numbers would not usually be available, the public would be able to tell if anything seriously out of the ordinary was going on.
Another objection is that it is wasteful and inefficient. This is based on the idea that there would be extra duplications or inefficiencies in working the system. This is not always the case, as government funding does not always make its own systemic inefficiencies immediately obvious. One of the most broad-based and efficient method of raising revenues through working a system of privileges is to grant concessions to companies to operate free of corporation tax in exchange for an up-front payment in the form of a proportion of each share issue. This is equivalent to an alternative corporation tax, and in fact if efficiency were the only concern it is an improvement over corporation tax as it avoids much duplication of accounting systems. However, it is often true that using privileges creates duplication, and, yes, this is "wasteful" - but this should be thought of as part of the price of independent resourcing since "independent" always amounts to "spare" or "duplicate", so it comes back to the earlier objection. The method of compounding corporation taxes for shares is too covert to qualify as an open exercise of privilege, so sadly it is inappropriate even though an efficient form of funding. (There may also be other reasons why it is not currently in use, such as unfairly displacing costs onto other parts of the economy. I hesitate to suggest that parliament never thought of this method of raising revenue.)
The last point in this area, making ministers report to the president, needs some explanation. Traditionally, there are three main areas where a Head of State can contribute to the workings of government. These are the rights, or even duties, to be consulted by, to encourage (or advise), and to warn the government. The president must be in a position to arrange these, and experience has shown that there are some difficulties with this. Drawing on information submitted to the Republic Advisory Committee, we see that in Ireland the president has been routinely ignored and kept in the dark. Some countries have made some attempt to avoid the difficulty. The Trinidadian material shows some surprise that their constitution only tries to enforce the right to be consulted. But there is an essential difference between the right to be consulted and the rights to encourage and to warn. The first must be initiated by the government, and the others by the Head of State. So the Head of State can exercise the second pair at his or her discretion, but an obligation must be imposed on the government in respect of the first right. That - making the government co-operate - is as awkward as any injunction for specific performance. Courts are reluctant to grant these, just precisely because it is hard to make them stick. Rather, they prefer to rearrange the problem so that it is no longer one of specific performance but of preventing a wrong action.
This is the approach I have suggested here. By making ministers report to the president, he or she would have the opportunity to warn, advise and encourage. While the president cannot make them consult him or her as such, by interrogating them separately he or she can make it highly likely that he or she would find out - all the more so when individual ministers realised he or she is likely to find out anyway, and that non-compliance might hurt while confidentiality meant that informing the president could not get back to the cabinet. Separate interrogation is a standard police technique, and it prevents ministers conspiring only to meet the president en masse - something which has happened elsewhere. The sanction is implicit in the power to dismiss a minister. While this may appear to be like an injunction for specific performance, in fact it is not. While an individual minister might fear dismissal, the sanction is actually that while non-compliers are perfectly free not to comply, they cease to be ministers - so that no ministerial authority can ever be exercised except in compliance, whatever the personal actions or omissions of any individual. This is the kind of rearrangement that the courts like. The only power the president needs is implicit in the right to dismiss, but as that would be awkward and might even provoke a constitutional crisis if using it like this was not understood, there would need to be an explicit statement explaining the duty of ministers to report to the president on pain of dismissal.
Obviously this is aimed at achieving minimalism. It would be important not to let any governmental or quasi-governmental functions drift into the sphere of the presidency, any more than they let such things fall into the hands of the Buckingham Palace bureaucracy in Britain. (There is a grey area, the Crown Estates.) This would be more likely to happen where new activities appeared, as existing ones already have a known and proper place. The biggest parallel in other countries is foreign adventurism.
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, article printed in the "Winter 1996 CCF(VIC) Newsletter"
This entry is about NATION and COUNTRY. They are not the same - when federation was proposed, one slogan was "a continent for a nation, and a nation for a continent" (or should that be the other way about?). You couldn't use the word "country" there, because that has a geographical sense - the slogan wouldn't have been bringing together separate ideas of people and place, because "country" already contains them both. "Nation" originally only meant a people, without any sense of sovereignty, as when Shakespeare and Dylan Thomas called the Welsh a Nation, or when the United States made (and broke) treaties with the "Indian Nations"; the new meaning grew up gradually with the idea of Nation-States in the nineteenth century (the rebel George Washington was recognised in the eighteenth century as the "Father of his Country", but in October 1862 the rebel Jefferson Davis was acclaimed by Gladstone as having "made a nation"). It really took off with Woodrow Wilson's push for a "League of Nations". That genuinely did address some real issues that had been developing during the nineteenth century, and its only real philosophical flaw (it had many practical ones) was that it assumed that one size fits all - it supposed that the only cause of conflict lay in discrepancies between nations, and it blithely assumed that every state could be fitted into a Nation-State scheme. You only have to look at Yugoslavia and Czechoslovakia to see where that went wrong.
The ideas of "nation" and "country" are most important to us now because of their significance to matters of citizenship and to ideas of territorial claims. Britain - and therefore the Australian heritage - contains and reflects this dichotomy. Four hundred years ago and more Elizabeth of England (a place) opposed and defeated Mary Queen of Scots (a people). Buchanan's famous work on Scots law has a title that translates as "the law of the realm among the Scots". To this day Irish nationality reflects ancestry, extended family, far more than British nationality does, which used to be extended to anyone born in Britain. This shows the Celtic emphasis, which derives from the fact that Celtic cultures developed in an era when land was not a constraint, but Latin and Teutonic ones settled out later or in areas where matters were further along. Indeed, that is why colonisation was often pioneered by peoples who were Celtic - they had relevant social and cultural models to revert to in new and empty lands. Even so, Celts did and do recognise land; Rob Roy MacGregor was described as being safe in his own country. The conflict between the two views - still unresolved, as we see from the lifestyles of the cattlemen of the Victorian high country - is of the same order as that between aboriginal and European views reflected in Mabo, though not as extreme.
When it comes to territory, unless we can distinguish between territory and sovereignty we can paint ourselves into a corner, as the French did over the issue of "Algerie Francaise". I have heard Christmas Island described as "part of Australia", when it would be clearer and less of a hostage to fortune to think of it in an emotionally detached way as an Australian possession. And history is full of examples of borderline cases, usually transitional ones: the Heligoland islanders a century ago, the Danish "optants" of Schleswig- Holstein after 1864, the Anglo-Indian special minority in India, the staff of the Commonwealth War Graves Commission and their descendants, the Aland islanders, and so on. Hong Kong and Gibraltar may be coming up; the usual procedure has been to give residents of different affiliations a special cultural and electoral recognition and a special status in relation to conscription, letting them fade away under a "grandfather" or "sunset" arrangement. When these arrangements are not made you end up with suppression of symptoms, continued trouble like the Falklands, the exchange of minorities (a deliberate attempt to make people fit the League of Nations scheme), forced deportations (like the French Acadians or the British Loyalists in America), or the modern ethnic cleansing. And the whole idea of identity is complicated by the fact that different philosophies emphasise yet other criteria: Islam emphasises religion over nationality - "mesok Melayu" and "turn Turk" both meant the same thing, adopting a new culture and loyalty through conversion - and the feudal system rested on the supremacy of personal loyalties over ethnic or clan / extended family ones.
NATION means people connected by shared loyalties and affiliations, whether by descent or adoption. Although it can be done, it is hard to adapt this principle to multicultural ideas - in fact, multiculturalism could be handled more naturally if less equitably within the concept of EMPIRE, which grouped otherwise unrelated ethnic subdivisions by means of a shared connection through a shared head. To those experiencing it this head might be either the abstract idea of Empire, or something as concrete and personal as Victoria, Queen and Empress. Now that the cosmopolitan but inequitable idea of Empire is no longer a viable option, we have to work twice as hard to be tolerant within the framework of "nation" - but that does deliver more, when it delivers at all.
On the other hand, as opposed to the idea of NATION, COUNTRY means people connected by falling under the same sway of power and authority, which like Empire is generally a political consequence of the accidents of geography and history. Unless we understand these things we do not know who are "we, the people", and we cannot make democracy work. In a purely formal sense - not in the spirit of it - apartheid was utterly democratic, because it had one citizen one vote; non-voters were still people, only other people.
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, article printed in the "Spring 1996 CCF(VIC) Newsletter"
This entry is about the - sometimes very loose - connection between DEMOCRACY, LIBERTY and MORALITY.
Not everybody has our need for precision. For instance, there is A Certain Newspaper with a very casual approach. It recently informed its readers that Glenconner in Peebles is an English peerage, and that Zeppelin was another name for Blimp. (Peebles is in Scotland. Zeppelins are rigid airships given their shape by girderwork, and are typically more than twice as big as Blimps, which are non-rigid airships held in shape by being pumped up.) This sort of thing happens a lot in A Certain Newspaper. Now, if you just want to take in a general effect it would be as silly to criticise this as to criticise an impressionist painting for not being photographically accurate. But it is important to realise this is going on, as otherwise you might make the mistake of taking it literally. For instance, A Certain Newspaper recently printed a leader including the following passages:
"... The proponents of a shift to voluntary voting also argue from democratic principle: Senator Nick Minchin, a founder of the John Stuart Mill Society [He isn't - ed.], which debated the idea this week, argues that to compel people to vote is a breach of the principle of individual freedom ... The argument for a change to voluntary voting comes down to a choice between competing democratic priorities - the individual right not to vote or the collective duty to participate in the democratic process ..."
The word "democratic" in this passage is being used as a portmanteau word to mean something like "our way of handling community affairs". And, in fact, that is where much of its importance comes from. But, to make the analysis work, we need to look at what democracy really is, and from that point of view that leader is wrong. Without buying into the question of compulsory voting as such, but just using this for illustration, we should note that:-
(By the way, it is not at all established that participating requires voting, let alone that participating is a duty. Suppose a boycott is in order? We have the Irish Parnellite experience to show us that this can easily happen even without the democratic process being deliberately abused by those in charge of it. And suppose forced voting creates the appearance rather than the reality, a distorted indicator of participation attended by a sense of outrage rather than the intended "civic engagement"?)
Of course, A Certain Newspaper is right in one way. We cannot ever really separate these things, any more than we can take the cat apart to see how it works - it stops working. What we can do is see how it used to work, to gain an insight into other cats. But that is what we want to do, so here goes.
By and large we want "good" government, whether we are talking about the government of a country or the government of a Tennis Club. The word "good" brings in ideas of efficiency and MORALITY, and we do not want to compromise either kind. But we are not wholly wise enough to know what is good, so we have evolved institutions and ways of coping. The idea of "doing things by the book", done properly, is one of these. To a bureaucrat, the regulation is all; he serves the means, treats it as an end. But ideally the rules and regulations mechanise most of what we have to deal with, leaving our attentions free to deal with the remainder on an ad hoc basis. The only reason we can walk and chew gum at the same time (well, most of us) is that our reflexes do most of this work, leaving our minds free to supervise. "Doing things by the book" is the same principle.
Even efficient government is hard to get right, and ethical government, where there is even less scope for compromise, is much more so. So we have evolved the approaches of liberty and democracy. Among other things they help us do our best in the area of morality. Let us see how this works out. If we have LIBERTY - freedom of choice - as individuals, we can choose what seems right to us as individuals, and we do not need to make general arrangements for everybody and incorporate them into our system of government. IF this works it reduces the scale of the problem. The old phrase "Man is the measure of mankind" meant that the only measuring device we had for our human problems was ourselves. This is absolutely true, but it does not solve everything. If Martin Luther's conscience told him he "could do no other", well, that is exactly what Peter Lorre's character's conscience told him when he played a child molester and murderer in the film "M". (It may have been a deliberate irony on the part of the director.) But by and large free will helps ethics and morality, because - mostly - if we can do the right thing, we do. It is certainly wrong to try to force another into virtue, and not only because it rarely works. Where liberty helps is by making that choice available. For instance freedom of religion means that people can worship on Fridays, Saturdays, Sundays, or not at all, and so that must be better than forcing the whole population to worship in a particular way. Doing that would be bound to violate some consciences.
So now - because it is too hard - we can put aside looking into the details of morality and start looking into liberty, a concept which we do have some chance of understanding. "Power", "might" and related terms all come from the idea of "to be able to", and liberty is much the same. The only distinction is that, while neither kind can be constrained, liberty generally has its own internal limits. That is, while the hunger for power grows without limit as it feeds on itself, the hunger for liberty is satisfied when it is achieved. But that does not mean that you get liberty by limiting power, any more than bending a speedometer needle changes the speed of a car - it is the test of the difference, not the cause.
People who do not understand liberty can make several kinds of mistake, even with the best will in the world.
One is to say "If you don't know what you want you don't really want it." They feel entitled to ask you to make an early choice, to commit yourself to all the meals you want at the beginning of a holiday and so on. But liberty lets you say you, and you alone, will decide.
Another kind of mistake is to set limits to liberty, to say "No reasonable person would want to make that choice, so it is reasonable not to allow that choice". But that is like saying "let them eat cake" just because no reasonable person would prefer bread to cake - you are presuming to know all the relevant circumstances, and sometimes you will be wrong. Of course, you may make this restriction out of necessity, but even so it is better to realise that this is what you are doing and not simply delude yourself.
There is a third mistake: confusing liberty and duty, making an option into an obligation. If (say) we provide ethnic groups with the option of having their children educated in their own languages, we have to be very careful. Too often, in documented cases around the world, this has degenerated into preventing them being educated in any other way on the grounds that only one form of education can be provided. If any "liberty" can be described in words like "can do this", and the description remains accurate if we change "can" to "must" throughout, then this is no true liberty.
So, although liberty is self-limited and power is not, it is not meaningful liberty if it is supplied, resourced, constrained and controlled by others - in particular, by a government. In this sense the only meaningful kind of government is none at all, and in this philosophical sense we should all be anarchists.
Unfortunately there is more to it than that. There is always Peter Lorre's child molester together with other enemies, concrete or abstract. Also, as well as activities that we can do individually, there are others that we can only do conveniently or at all as joint activities, like public health. There is a continuum, and in the middle we get a tension which cannot always be resolved because people can argue at cross-purposes. If an activity is done most conveniently as a joint activity, the way education is, does that mean it absolutely must be done that way? Obviously private education is a possibility in some cases, which proves that a community solution is not inherently necessary from the individual's point of view. Yet it is arguable that at least some part of it should be a community priority.
But the case is much clearer with public health, which cannot help spilling over from one individual to everybody else. Here, we are getting close to the necessity for government, but we cannot simply state that because we cannot have public health without joint action therefore all joint action in this area is justified. It may be that some joint action is justified and that other joint action is not, or that public health is not worth the price being demanded. You don't agree with that last possibility? We could wipe out AIDS almost overnight if we tested everybody at regular intervals and shot everybody who was infected. And one of the surprising anomalies in the public health area is that not only does the common good need everyone to make some sacrifices, it may even require people to take unequal risks. Paradoxically, it can be shown that the best vaccination strategy does not require all children to be vaccinated but only some, perhaps most - and then the rest are at lower risk. So there is no built-in reason or principle that automatically makes equality the right way to achieve the common good, even though it usually is. There is a chance that equality may not be a good thing for the community in areas other than public health as well, ones where we cannot do a full analysis.
Getting back to morality for a moment, "good" government consists in having a chicken in every pot and a gallows on every hill, so we should always have some reservations about it. Napoleon produced a post-revolutionary government, the French Empire, which was supposed to implement and support the ideals of the French Revolution - which included liberty. It, too, was a means towards a second means, liberty. The only trouble was, although it confronted the reality that government was necessary it went by degrees from thinking of it as a necessary evil to a necessary good, and so to thinking of the good of Napoleon's Empire as being the true good.
DEMOCRACY is an approach to this problem, that government can take over its own reins. Do you remember the saying that democracy is one of the worst systems, apart from all the rest? This is a grim joke, like the jokes that described Czarist Russia as despotism tempered by assassination or the Austro-Hungarian Empire as tyranny redeemed by inefficiency. But, like those jokes, it gained its value and its grimness from the underlying truth. Austria-Hungary was effectively free yet civilised for so long as its tyrants were too weak to enforce their tyranny. Democracy is a bad way of doing most things, but it avoids many of the mistakes of human hubris. Consider the twenty-year career of Mussolini; his first decade, 1922-1932, was a great improvement over the previous ten years of corrupt parliamentary government in Italy. Not good, just better. Only, as in a Shakespearian tragedy where the protagonist falls because, being who he is he can make no other choices, Mussolini went on to his second decade and his miserable end. Mussolini got where he did because of his own personal characteristics working their way out in the environment he found; without both Italy and himself he could not have made the trains run on time. Only, being who he was, he could only make the later choices leading to his end. In a Shakespearian tragedy, although everybody else can see what will happen if he keeps doing what comes naturally, the protagonist is the only one who cannot - and he does not, and falls. One falls this way, another that, just as Hitler, Mussolini and both Napoleons all had different dooms, but they all shared this inevitability.
How does democracy help? Well, some people have accused the present Premier of Victoria of Fascist tendencies, but with all due respect this is an entirely unjust analogy. Let us see how, with democracy, this parallel fails.
In most cases, the government in a democracy is made very aware that it is NOT in charge in any ultimate sense, and so it is much less common for the hubris to develop. It is in this sense that an apparently undemocratic governor or governor-general serves the principle of democracy: he makes another arm of it keep its place. (This is a worry about what we might lose in a republic, too. It would actually be wrong to have a president so restricted that governments began to suppose that their mandates were somehow total. Since first writing those words events in Pakistan have further underlined them.) The present Premier is almost certainly aware that he is a kind of servant, not a master.
But from time to time, even so, even the best breed of dog forgets what it is, and democracy provides a choke chain. Sadly, in Australia the culture as a whole encourages this hubris; the worst sorts of Australian policemen and security guards think that they are in charge and that they are entitled to order people around at their own sole discretion. Suppose a politician got all the way to the top and fell off? Well, look what happened to Margaret Thatcher. For most of her career she kept her actions within bounds, and when she didn't the system threw up those that would, could and finally did replace her. In a democracy Mussolini would have been given his first ten years and then either have practised self-control or been ejected much earlier than he was. He could have written his memoirs and lived in print rather than dying in the street.
So, with democracy we have all for the best in this, the best of all possible worlds, right? Wrong. In terms of actually doing things - getting things done - it is very bad. In efficiency and effectiveness terms it works best not in "service provision" but in service procurement and quality control - authorising others to act rather than acting directly, but then monitoring them rather than giving them an entirely free rein. Where the problems of government can be cast in this form, they should be, but sometimes they cannot be. When democracy must act rather than provide a pool of resources we must live with "bad" - meaning inefficient - government or risk undue power falling into a few hands. Even if problems can be cast in this indirect form there are still difficulties. One is that little problems grow into big ones, and for purely historical reasons we might still be set up the wrong way. Another is that we might forget to do all the work this approach needs - "laissez faire" means roughly "leave it be", but what we should try to do in matters of government is "get it right and leave it be".
There is still room for confusion. Some people - notably the media - think that freedom of the press is part of democracy. It is no such thing. What it is - and remember we are talking technically - is a particular aspect of freedom that is intended to make democracy work better. (Freedom of speech is much the same in this respect.) You can have democracy without freedom of the press, only it would be that much less likely to work, both because the people would be uninformed and because if there were forces working to eliminate it or make it ineffective, they would be working against democracy too.
So freedom of the press is still important, but if you do not separate it from the idea of democracy you run two serious risks. One is that you might forget to check whether it was really serving the democratic purposes it was hoped to, and you might forget to provide other means of informing the public (like constitutional conventions!). Another is that you might forget that it is also valuable for the usual reasons that liberty is valuable - so you might eventually forget to protect it if there happened to be a democratic mandate to limit it. If journalists are only exercising a variation of freedom of speech, maintaining their freedom maintains the principle of maintaining any freedom. But if they are regarded as a special case, and their "freedom" is merely considered a special privilege much like parliamentary privilege or the confidentiality of discussions between lawyers and clients, maintaining it does nothing for anybody else's freedom.
The particular value freedom of the press gives to democratic practice is that it lets information in and out. Without that, representative government might fall prey to "groupthink", as popularised by Charles Handy. That is, although ideas are circulating, they are only circulating in a closed loop away from the real world. Insiders get the ideas and values they started with passed round and round again. This has the value of continuity, but it also allows ideas to gain ground on other ideas by virtue of their plausibility rather than by being tested against reality. We can see that this happens from the way that the fogs clear when a new batch of parliamentarians enters politics after each major war - old ideas are blown away and the new ones are valuable not because they are new but because they are real.
Unfortunately, just as a large enough building can develop its own clouds inside as well as keeping outside ones out, so also the media can turn into its own closed world. So can some professions, like teaching. This means that the world of politics can fall into the error of supposing it is in touch with the real world at one remove when it is only in touch with the media and academia; but if those have also become ivory towers this is a false sense of security. From our point of view it is not enough to ask if there is freedom of the press - we must also ask whether the press is dispassionate and objective; in a word, responsible. Unfortunately there is some reason to wonder about the Australian media. Most Australian comedy these days is based on other matters in the media, so it is definitely incestuous, and I have seen a comment by a journalist that he was sure the monarchist point of view had no good arguments because he had not read any. It is not the question of whether there are any that counts here, but the way he came to that conclusion. That is, there may or may not be any good arguments, but the way you find out is by studying the area directly and asking people in the wider world, a few experts and a few people off the street in case you miss anything. You do NOT find out by asking your colleagues, who in turn ask you. The absence of arguments means EITHER their non-existence by objective standards, OR their un-newsworthiness by subjective ones, OR the absence of a way for the information to enter the media. We need to worry about that last possibility and to make allowances for the second.
What else? Again, even though democracy reduces the risk of personal hubris, it does nothing about a more general form of it. That is, the idea of a democratic mandate more and more gives people the sense of being right - yet we have seen that democracy and morality are quite separate things. Democracy has three areas of grave risk, three areas of incompleteness, and this idea that democracy justifies the things done in its name is one of them. That is, when the Athenian people voted to destroy the Melians, that was democratic, but it was still wrong. Or if you prefer a more modern example, for generations the U.S.A. maintained slavery. You may point out that eventually it was abolished, and democracy had the moral fibre to carry through the severe measures needed to achieve this. This is correct, but it brings out the point: democracy made neither slavery nor abolition right, it only made them happen. It gains derivative value from being able to do the latter - but it does not confer any merit on it.
There is one way in which liberty does make things right, or is tantamount to it, and the same thing happens with democracy. That is, suppose something really is entirely up to me, my property in the full, complete and original sense? It follows by definition that it is absolutely none of anybody else's business, which means that if I decide to do something in this area it must be right. At any rate, it must be wrong to thwart it, which is what I meant when I used the term "tantamount". In the same way - and much less likely to be contradicted - something that is truly "ours", nobody else's business but ours, is subject only to democratic mandate. If someone tries to do anything else, ipso facto it must be wrong, which is tantamount to making the democratic choice the right one. Not necessarily the sensible one, any more than when someone chooses to dye his entire body bright green for a fancy dress party and then discovers it won't wash off. But perhaps you see the remaining difficulty: the problem area has moved to deciding just what is, or is not, truly "mine" or "ours", and to who has the right to decide.
In a small way the mistake of supposing that virtue proceeds from rather than through democracy continues today. Some people state, as a criticism, that new law made by the courts is undemocratic and therefore wrong as judges are not democratically elected. Yet the reverse idea, that elected judges would make good law, is wrong; judges should try as much as possible only to interpret the law, leaving legislation to the proper body. They cannot succeed in full, which is why interpretation results in new law, but they would be no better at it if they were elected. Indeed, Hitler made the valid point (quoting scripture to his own ends) that the talents needed to get elected were not closely connected with the talents needed to govern once in office, and the same applies to the talents needed of judges. But our system allows for this by separating the taking of action from the authorising of action; there is no more need for judges to be elected than for the public servants who implement their Ministers' policy - although they too must be monitored in the most appropriate manner. The democratic aspect of our present court system is that it is part of our whole system - the loose use of the word democratic - and that is enough provided we remember what our judges are there for, which is not about being democratic but about providing justice within democracy.
In a larger way this mistake affects people who think that liberty derives from democracy, when they are quite separate. The way that they relate is because of the similarity of "each" and "all". If all of us go to the beach, each of us goes to the beach. But if each of us has a favourite food that does not at all mean that we all of us have one single favourite food - we might have different ones. Confusing the two means that democracy can get very procrustean. If something gets handled by the government when it need not be it runs the risk that we will get the "one size fits all" treatment. With democracy that one size will at least fit the majority, which is better than providing a size for a minority, but it is a long way from giving everybody the right size. Sometimes constraints make this impossible, in which case democracy is a good compromise, but it is only a lesser evil.
In practice this situation is handled by having democracy recognise the rights of minorities, but again this is just a matter of something more we need to do, not really an essential part of democracy at all - only an essential part of making it just. If we only look at making things democratic we might forget to do this other necessary thing, looking out for minorities. And even if we do we might only remember to look out for officially approved groups and overlook some very real problem areas. After all, it is the attitudes behind racism that are wrong and the things it produces that are harmful, not racism itself. What sort of thinking is it that condemns people for hurting others for racial reasons, but freely allows it if they do it when they simply don't like their victims? Racism is just a test of one particular expression of evil, not the thing that makes it wrong.
Again we have a distortion from confusing two principles, democracy and liberty. Such clashes are compounded by our talent for self-deception, our capacity to convince ourselves that we are in the right. That brings in a confusion with morality. As I pointed out before, in practice we cannot separate democracy, liberty and morality (or perhaps ethics) in our system of government, but to attempt the separation helps the analysis. It certainly highlights the problem of mistaking one for another, of mistaking means for ends. We value democracy for everything it carries with it in the way of cultural baggage and civilisation as well as for being a useful means, and for convenience we call the whole lot democracy, but in itself democracy is not a good. We have not attempted to reach very far into morality, or indeed into democracy and liberty - indeed we have been looking for a systematic way of avoiding the question. However it is perhaps worth mentioning that, in the Christian tradition, confusing means and ends in this sort of way has been identified with idolatry, so the issue does occur in the study of morality. And, in sincere flattery rather than mockery of St. Paul, we might finish by saying that in our system of government there are three things, democracy, liberty and morality, these three; but the greatest of these is morality.
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Jupiter answered, "... I shall create a German hero who will accomplish all with the edge of his sword. He will kill all the bad people and preserve and foster the good ... a hero who needs no soldiers and yet can reform the world ... Every large city will tremble at his presence and every fortress that is otherwise impregnable will fall to his power in the first quarter of an hour. Ultimately he will rule over the greatest sovereigns on earth and set up such a government over land and sea that men as well as gods will love it and praise it ... you don't understand the wondrous power the hero's sword will have ... my magnificent German hero can deprive whole armadas of their heads with one stroke ... Whenever he comes to a town or fortress, he'll use one of Tamerlane's tricks, raising a white flag as a sign that he comes in the interests of peace and the common welfare. If the people come out, well and good; if not, he'll draw his sword, and ... cut off the heads of all warlocks and witches in that town and display a red flag. But if no one presents himself after that, then in the same manner he'll dispatch all murderers, usurers, thieves, rogues, adulterers, whores, and pimps and run up a black flag. Finally, if the ones still left in town don't come to him and act repentant, he'll want to eradicate the whole city as disobedient and obstinate. But he'll execute only the ones who kept the others from yielding sooner. Thus he will go from one town to another, giving to each the countryside around it, to be governed in peace. From each town in all of Germany he will summon the two wisest and most learned men, make a parliament of these, unite the towns forever, abolish serfdom and tariffs, imposts, interests, mortgages, and dues throughout Germany, and take such measures that all memory of servitude, contribution, confiscation of money, warring, or onetime special taxes will be lost among the people, who will be more blessed than the inhabitants of the Elysian fields."
... "Your Highness Jupiter, what will the masters and princes say when the future German hero illegally takes away what is theirs? Won't they resist by force or at least protest to men and gods against this seizure?" Jupiter answered, "My hero will bother very little with them. He will divide all the mighty into three groups. Those who live in sin and evil he will punish like commoners, for no earthly power can resist his sword. The others will be given the choice of staying in the country or leaving it. Those who love their land and elect to stay in it will have to live like other common people. But the private life of the Germans will become much happier and more enjoyable than is the life of kings at present ... The third group, the ones who want to stay rulers, our hero will lead by way of Hungary and Italy into Moldavia, Wallachia, Macedonia, Thrace, Greece, and even across the Hellespont into Asia. Having obtained these countries for them, he will there deposit and make into kings all the military cutthroats of Germany ...
"Returning to Germany, he (with the two members of parliament summoned from each of the German cities, who will be called the leaders and fathers of the German fatherland) will construct a city right in the middle of Germany ..."
I asked Jove what the Christian kings would do in this emergency. He answered, "The ones in England, Sweden, and Denmark (because they are of German blood and family), and the ones in Spain, France, and Portugal (because the ancient Germans once conquered and ruled these countries) will volunteer to receive their crowns, kingdoms, and lands as fiefs from the German nation. Then there will be a constant and everlasting peace among all the nations of the world - as in the days of the Emperor Augustus."
... Then I asked, "How can Germany have an enduring peace with our different religions? Won't the various priests incite their people and provoke one new war after another?" "Oh no," said Jupiter, "my hero will wisely anticipate this matter, and above everything he'll unite the Christian denominations throughout the whole world ... in moving words he will address the spiritual and worldly leaders and heads of the Christian peoples and particularly of the churches; and he will eloquently point out to them the harmfulness of the prevailing discord in matters of faith. Through the most reasonable, incontrovertible arguments he will lead them to the point of desiring a general union and of handing the whole matter over to his direction. He will then assemble the wisest, most learned, and most pious theologians of every denomination and assign them a quiet, serene place where they can cogitate without being disturbed; he will furnish them with food, drink, and all other necessities, and order them first to compose the differences among their various religions and then to put down in clear wording the correct, true, holy Christian religion according to Holy Writ, the ancient traditions, and the opinions of the holy fathers. About that time Pluto ... will initiate all sorts of quibbles, conspiracies, evil, and deceit; he'll advance one amendment after another and try to kill the matter or at least prolong it ad infinitum or indefinitum.
"He will undertake to point out to each theologian, in glowing colours, his vested interests, his status, his peaceful life, his wife and children, his reputation, and whatever is most likely to make him insist on his own opinion. But neither will my brave hero be idle; as long as this council lasts, he will ring the church bells to admonish all Christians to pray ceaselessly to the highest Numen to send the spirit of truth to the council. But if he notices that one or two are perhaps yielding to Pluto's blandishments, he will torture the whole conclave with starvation, and if they won't work to complete the great cause he'll speak to them of hanging or show them his marvellous sword; first with kindness, later with seriousness, terror, and threats, he will bring them to the point at issue, so that they will no longer mislead the world, as they used to, with their obstinacy and false doctrines.
"When unity has been reached, he will have a great celebration and publish the refined and improved religion to all the world. He'll make a bloody victim of anyone who is against it."
The author of this little piece flourished in Germany during the later stages of the Thirty Years' War, and immediately thereafter. In many ways this coloured his view on life, leading him to think nothing of quite savage methods in pursuit of otherwise laudable ends - in seventeenth century Germany's case, putting out the smouldering embers of a savage religious civil war.
But you will have noticed the distant tread of Hitler's footsteps, too. For Hitler sprang from that same Germany, three centuries more marinated in tradition. In many ways he truly was a man of the people, fully representing its spirit. While we cannot take "Simplicius Simplicissimus" as a primary source for what was current in seventeenth century Germany, it is primary evidence of something else: the sort of cultural transmission that was being passed down to Germany in the eighteenth, nineteenth, and early twentieth centuries - das Mythos des 17tes Jahreszeites, the myth of the seventeenth century, if you will.
We do not want to receive this deplorable tradition, in which starvation and hanging seem reasonable, incontrovertible arguments. But this piece is still useful to us, if only because it also receives and retransmits an even earlier tradition. This other tradition is a mediaeval survival, which underwent a sort of revolutionary synthesis in England in the seventeenth century and created our own Westminster System. (Meanwhile in France it atrophied into a vestigial institution which propped up the ancien regime.) If we can filter out the barbarism we can learn something from this earlier tradition.
We see talk of summoning a parliament to resolve issues, and a very similar council of specialists to address related matters in a specialist area, religion.
The parliament is different from what we know now - and in fact very like a constitutional convention - but it greatly resembled the kind of parliament then known in England, and it is in many ways like Edward I's model parliament of 1295. Most of the representatives to that were also summoned in pairs from each constituency. In those days parliaments were occasional, ad hoc bodies, directly representing particular interest groups and only indirectly representing the whole people, which was why there were different houses for different social classes. There genuinely was no continuity of content from one to the next - although the concept remained alive, no one parliament was identical with any other. This idea is still with us, though as something of a legal fiction, in the idea of dissolution of parliament and in the idea of parliamentary sovereignty: no one parliament can bind its successors. But when parliaments were genuinely distinct one from the next this had a real and valuable result: the representation was more direct, unmediated by the apparatus of political parties. This is the same reasoning as when farmers plough fields between harvests and occasionally leave them fallow - it prevents other things getting entrenched, as each new parliament starts afresh without a burden of past history. This metaphor is unkind if not unjust to our parliaments, in which at least some of the workings of party politics are beneficial even if not always cost-effective. However, the parallel is a lot closer for constitutional conventions: it is the main reason for having a convention separate from parliament and free from serving politicians.
Altogether, those mediaeval parliaments had three features that helped them be more representative:-
For their purposes - which are very like our purposes in a constitutional convention - these features were useful. They have needed to change for parliaments because those are now the engine of sovereignty. There is a greater need for continuity in practice, so parliaments now need to sit regularly for more or less regular terms. Distinct houses need to have a recognised priority and way of combining to express sovereignty, because otherwise they do not properly represent the whole people. Multi-member constituencies are often "unfair" to political parties, which really means that they are unfair to the other patterns of interest that political parties evolved to express. Also proportionality, as a goal, conflicts with giving definite majorities in parliament - the main advantage of the first-past-the- post system that replaced it. (But there are systems that combine several different approaches and keep the problems manageable.) And geographical priorities are less important these days. Indeed, as an experiment, Victoria once had a non-geographical constituency set aside for public servants to vote in, although it ultimately failed. It was in some ways like the old university seats in England. Again, this was intended to be a way of providing for particular interests rather than overwhelming them by constraining things to fit a geographical pattern.
The three main groups that were represented in the middle ages were the nobility, the merchants and the clergy. These were all numerous enough that they had distinct houses rather than simply having special provisions made for them like a few non-geographical seats. However, in England at any rate, the business and agenda of the clergy were specialised enough that their chamber separated off to form a separate institution, leaving only a few vestiges like the university seats and bishops sitting in the House of Lords. You can see the sort of specialised business by looking at the House of Lords when it needs to function as a law court; non-lawyers do not attend, so in practice it is a specialist body. This works because these special sittings do not happen that often and ordinary business is not disrupted.
This is another, though lesser, reason for having a constitutional convention separate from parliament: it has a specialist function, and there is little overlap with either a parliamentary agenda or the expertise of politicians. Some "political" skills are necessary, of course, but parliamentary experience is at least as likely to mislead with false parallels as to guide. Fresh eyes are even more valuable than experience.
In the same way Grimmelshausen suggested a specialist theological body, a council, to sort out the particular underlying problems of his day. This too had great precedent, which is probably why he foresaw all the practical difficulties he did - he had seen it all before. He makes the drastic suggestion of coercing delegates to reach agreement, but there are problems with that. For one thing, its brutality is not only distasteful, but he implicitly assumes that brutality will be consistent with the desired result, a valid system of religion. If it is not, brutality is not an option - but there is a risk that by assuming it is it might be built in as part of the answer, so distorting the process. Also, Grimmelshausen quite correctly sees the Scylla of personal motives preventing true agreement being reached, but he overlooks the Charybdis of genuine difficulties preventing any genuine agreement existing to be reached at all. That is, while he sees spurious disagreement as failure, he does not see spurious agreement as failure. Indeed, confabulating agreement would simply have left the council out of touch with the wider people, which Grimmelshausen would have countered with killing.
What we can learn from this is that a constitutional convention must have its remit and procedures framed carefully, not only to prevent the sort of sabotage and delay that Grimmelshausen foresaw but also to prevent building in a definition of success that only recognises definite change as proof of a result. Framing procedures to encourage a result is as bad as changing court procedures to increase the proportion of convictions. We want more guilty people convicted, not more accused people - some of them are innocent. Similarly, for a constitutional convention we do not want to measure success that way, or we might force it to deliver something unworkable. We must allow an honest recognition of real difficulty, just as a prosecutor who does not gain a conviction has still contributed to the course of justice - provided he did a thorough job.
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No examination of constitutional conventions would be complete without looking out for mistakes to avoid as well as goals to achieve. Luckily (for us) we have some historical cases of things that went wrong, so we can look at them and try to learn from them. Here are two easy pieces, the American Hartford Convention of the early nineteenth century, and the conventions and other attempts at nation building after the fall of the Chinese Empire in the early twentieth century.
First, some historical background. Eighteenth century wars were never complete and total, and they always left some unfinished business. Not even the American War of Independence was a complete defeat for the British - indeed, the British made some modest offsetting gains at the expense of the American colonies' allies. By the early nineteenth century, when Napoleon seemed to be winning, the U.S.A. still had some outstanding grievances. Eventually this led to the British-American War, but first there was an embargo - the U.S.A. imposed sanctions. Now, these looked even-handed as they applied symmetrically to both French and British, but in fact they worked to help Napoleon's own "continental policy" of sanctions. That was aimed at hurting British trade and also reducing British supplies of naval materials to the point where the British Navy could no longer confine the French Navy to port effectively. With reduced sea training for the British and increased training for the French, the French would eventually have become superior. But North America was an independent source of these materials, not controlled by Napoleon.
All this was general knowledge at the time, and President Jefferson introduced a series of measures to reduce the combatants' access to American trade. Now, this embargo also hurt the British by cutting off food supplies from the Northern states to the British West Indies. It would have hurt the French West Indies the same way, only the British had already cut those off, those that weren't in rebellion anyway. What the Americans apparently did not realise, however, was that these two things - food and shipbuilding materials - were much of the economy of the Northern states, and Britain still had access to naval supplies from Canada. So New England suffered disproportionately. This increased when the Americans invaded Canada in 1812, as New England was the most exposed to counterattack after the invasion failed dismally. The Americans did not even manage to disrupt the Canadian supplies significantly. Two years into the British-American war the New England states planned a series of conventions for constitutional change, possibly even going as far as secession, since they held much of the damage they were experiencing to be the fault of the system. They felt that it allowed the president to do too much at their expense, which they had no constitutional means to resist. This was a real rather than hypothetical risk because of the political reality that the president was always affiliated more to one section than another - in this case, he was a southerner.
The only convention that got off the ground was at Hartford in Connecticut, although a later one was planned for Boston. What it showed was that there was not enough understanding of the need for the people to be involved. The state legislature made facilities available to a small self-selected group, 26 "wise men of the east" of whom 22 were lawyers, i.e. specialists - and then they reduced public confidence still further by meeting in camera. The media of the day accused them of plotting all sorts of things, even treason in the face of the enemy, on the grounds that obviously only deeds done in darkness needed such secrecy. But that was standard procedure in those days, and it did allow the preliminary rough work to be done without committing anyone to unprepared positions. Indeed, it seems that while secession was contemplated as an option, and even reunion with Britain, the main attempt of the committee work was to try to find realistic compromises within the American system. These would have been taken to a second convention in Boston for further work, perhaps more public, so holding an implied threat to the heads of the Washington political establishment. Meanwhile, a delegation would take the work to Washington to try and gain constructive ground there, negotiating compromises with the establishment.
The Hartford Convention finished in early 1815, and the delegation reached Washington in February. It looked as though the delegation had a strong hand, but the very next day news reached Washington that a peace treaty had been signed at Ghent the previous December. The Boston Convention never took place and the whole effort faded away in anticlimax.
The timing of this entire exercise provides some nice ironies. First, Napoleon's sanctions never had enough time to gain full effect, even with covert American support. Second, the only land victory the Americans ever won came after the peace treaty, though before news of it. By then the American naval forces had been contained despite early successes, so they got absolutely no gain from their military effort. (They did gain something by negotiation, but only because Napoleon had been defeated and the British could afford to give up some matters that they had previously needed as military necessities. The Americans had not contributed to this windfall gain, although it was misrepresented as evidence of American victory since it had actually been a war aim.) Third, if there had been no communication delays the Hartford Convention would either not have taken place because of the peace, or it would have finished earlier and had some lasting effect rather than an anticlimax. Fourth, and neatest irony of all, if (as seems possible) Napoleon had encouraged the Americans in their anti-British fiasco, it backfired on him. The usual British practice was to demobilise soldiers in peacetime to save money, and when Napoleon returned to fight the Waterloo campaign there would have been a much smaller British Army available to deploy against him; but the regiments were only just returning from America when Napoleon returned from Elba. He may have raised up one of the instruments of his own destruction.
The Chinese Empire fell in 1912. Like the Roman, it fell from a combination of causes that are not fully understood but which it received at the hands of enemies both internal and external. Immediately afterwards two main figures influenced the course of events: Sun Yat Sen, who had led the revolutionary movement that had weakened and destabilised the Manchu dynasty; and Yuan Shih Kai, who had led the armed forces. What happened was that Yuan Shih Kai transferred his loyalty away from the empire when it stopped being able to offer anything substantial on its side of the bargain - the support that comes from an accepted base of legitimacy. The revolutionary forces claimed victory, but all that they had done was weaken their enemies - they were not strong enough to keep the control they could deny to others. All in all, a recipe for instability.
At this crucial juncture there was no basis for any kind of legitimate government, because democratic thinking had eroded the old basis but had not taken over in the Chinese people's minds. Sun Yat Sen briefly became president, but had to resign when it became clear that he could not rule effectively without a real power base. Yuan Shih Kai took over because he was the man on the spot, with the usual military strong man's brief of restoring order and a regular basis for government - and the usual difficulty in achieving it.
There was the beginning of a basis of legitimacy, though. At the beginning of 1913 Sun Yat Sen left behind him a provisional constitution, which was intended to be a bridging arrangement to let things work while a real one was prepared, and to allow the assembly to prepare it. Yuan Shih Kai had that much legitimacy, as he came to power under it, and its moral effect and the involvement of the revolutionaries in the assembly brought some of them on side - it reduced the white-anting that they had been giving the empire. This was not a regular constitutional convention, though, as it was part of the regular workload of an assembly that also had to conduct normal assembly business under the provisional constitution. Also, it was not that democratically set up itself - by the nature of things, the revolutionaries were self-selected from those that had worked against the empire. By the nature of things, though, this was all that was available. It was not at that point a deliberate distortion by having a special body with selected membership working to provide the regular constitutional arrangements.
China now faced a dilemma. Monarchy did not work, because it had been white- anted. Yet a republic did not work either, because it had not grown into any place in the hearts and minds of the people. Unlike today, everyone was well aware of the difficulties of creating a republic because they were more familiar with examples of serious failure, e.g. in Latin America. The assembly became factious and unworkable, so the work of constitution building was passed on to a specialist group: 69 nominated members formed a "Political Council" in 1914. This too failed, and recommended a further body be set up, a "Constitutional Compact Conference", which had 66 members elected in an oligarchical way, and was effectively rigged. This did eventually produce a constitution of sorts in May 1914.
Let us follow the sequence of events here. Each failure led, not to reappraisal, but to a new attempt. Each attempt was made on a narrower and narrower basis in an effort to get a result, but the only effect was that they moved further and further away from genuine support and acceptability. So the final result was spurious. That is, rather than a genuine disagreement corresponding to a real problem of Chinese identity, they ended up with a spurious agreement among themselves which was not matched by genuine acceptability. The underlying mistake was in seeking the form of agreement rather than the substance.
Meanwhile Yuan Shih Kai himself had been continuing as president on the back of the provisional constitution, and while its legitimacy had been weakening he himself had been settling in. He had no special affection for a republic as such, so in a way he was thoroughly democratic; a republic had no more place in his heart and mind than it did with most Chinese. His motives were a mixture of being self-serving and meaning well for China - the same mixture that led him to give away the Manchus when they had stopped helping him and China. For the first few years of his presidency he had been content to let the assembly squabble and leave him to get on with things, but this was by its nature unstable, damaging and impermanent. He began seriously to consider doing much what Napoleon III had done, converting his presidency into an empire under his own dynasty.
For this, he got a number of experts to set out criteria that would need to be fulfilled if monarchy could be restored. These experts included an American, Dr. Goodnow, who could have been expected to be prejudiced in favour of a republic. This exercise does not necessarily amount to rigging; applied fairly, these criteria would have amounted to making monarchy a non-option, because genuine criteria, properly applied, would always have given the answer "the time is not ripe". The three criteria were:-
The first, of course, meant that monarchy would only work if monarchy worked. It is like catching a bird by putting salt on its tail or persuading a young lady by gently stroking the base of her spine; if you can do it at all, it means that you have already succeeded in your objective. Not that I have ever put salt on a bird's tail.
Yuan Shih Kai never really implemented the 1914 constitution, even with its increased presidential powers. Instead he put together a claque of supporters which called for a monarchy of the sort Dr. Goodnow had specified during 1915. This amounted to having an even more specially selected body to produce constitutional change. Then he graciously acceded to their demands in early 1916. This was helped by the assembly's factiousness, preventing it putting together a coherent alternative.
The criteria had not been met. Rather than conferring further legitimacy on Yuan Shih Kai's military power base, becoming emperor stripped him of his remaining presidential legitimacy in the eyes of the revolutionaries. After a few weeks he had to give up the attempt, and he rather conveniently died soon afterwards.
The dilemma had worked its way out. Usually only one option is chosen, and so we never know for sure what would have happened if things had gone the other way. For a change we know that both parts of this dilemma were real problems because both were tried out in practice. It was claimed that monarchy had exhausted its legitimacy and would not work, and this was correct. But it was also claimed that a republic could not work because it could not bring stability, and the next thirty years proved that this was also true. Damned if you do and damned if you don't - the only way out of this sort of trouble is not to get into it in the first place.
These two cases show that a good way to ruin a constitutional effort is to make it specialist and keep it away from the people; we have to "own" it. If we cannot agree, then that is reason to stand back and reappraise the whole problem rather than change the methods used, as rigging to produce spurious agreement is just as damaging and futile as rigging to carry through a hidden agenda. White-anting one option does not make unviable options viable, only relatively stronger because the white-anted one is absolutely weaker. It might even start a round of white-anting which would leave all options weaker, and serve no good purpose. And it is easy for the whole exercise to be overtaken by events - conventions do not exist in isolation, but occur in an outside context over a period of time, and they are not isolated events. And, sometimes, problems really are insoluble. Which is no reason not to try - that's the only real way to find out. If the attempt itself is expensive and damaging, why, that might be a reason. But not just because success does not look certain.
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