Constitutional games

Sackerson points us to a CNN article on Daniel Ellsberg.  I posted on Ellsberg a long time back, here, asking if whistleblowers were heroes or traitors.

The PBS series POV is streaming “The Most Dangerous Man inAmerica: Daniel Ellsberg and the Pentagon Papers,” on June 13 and 14.

In this interview, Ellsberg says, “Richard Nixon, if he were alive today, would feel vindicated that all the crimes he committed against me–which forced his resignation facing impeachment–are now legal. ” (Thanks to the Patriot Act and other laws passed in recent years.) And he says all presidents since Nixon have violated the constitution, most recently President Obama, with the bombing of Libya.

CNN: Until now, the public has been able to read only the small portions of the report that you leaked. What do you think the impact of releasing all 7,000 pages might be?

DE: The “declassification” of the Pentagon Papers–exactly forty years late–is basically a non-event.  The notion that “only small portions” of the report were released forty years ago is pure hype by the Nixon Library.  Nearly all of the study–except for the negotiations volumes, which were mostly declassified over twenty years ago– became available in 1971,  between the redacted (censored)  Government Printing Office edition and the Senator Gravel edition put out by Beacon Press.

Ellsberg goes on to say:

Our Founders sought to prevent this. Article I, section 8 of the Constitution, for the first time in constitutional history,  put the decision to go to war (beyond repelling sudden attacks) exclusively in the hands of Congress, not the president.  But every president since  Harry Truman in Korea–as the Pentagon Papers demonstrated up through LBJ, but beyond them to George W. Bush and Barack Obama–has violated the spirit and even the letter of that section of the Constitution (along with some others) they each swore to preserve, protect and defend.

However, as has been pointed out repeatedly by Glenn Greenwald,  ( Click here) and  Bruce Ackerman , David Swanson and others, no president has so blatantly violated the constitutional division of war powers as  President Obama in his ongoing attack on Libya, without a nod even to the statutory War Powers Act, that post-Pentagon Papers effort by Congress to recapture something of the role assigned exclusively to it by the Constitution.

This open disregard of a ruling statute (regardless of his supposed feelings about its constitutionality, which Obama has not even bothered to express) is clearly an impeachable offense, though it will certainly not lead to impeachment–given the current complicity of the leaders of both parties–any more than President George W. Bush’s misleading Congress into his crime against the peace, aggression, in Iraq, or President Johnson’s lies to obtain the Tonkin Gulf Resolution.

That the Constitution and its provisions are being openly violated today is an eye-opener and either speaks of a feeling of total impunity on the part of the Executive or else a feeling that it has to do the maximum possible in the time before the hammer comes down.  The lawlessness on Wall Street parallels this.

Meanwhile, over here, the miserable situation is that, under an EU yoke, we’re still debating if we even have a constitution or if we do, where is it vis-a-vis the EU Constitution [they like to call the Treaty].  Ranty mentions Gerrard Batten and he’s well worth a listen.  Courtesy of The Talking Clock:

Any member of the House of Commons or House of Lords that votes for ratification of the reform treaty is therefore literally a traitor to their country.

The EU obviously takes advantage of the confusion within the former UK and deals directly with Scotland, Wales and its defined regions of the rest of the isles – ignoring the concept of England.  Much has been written by other pundits on this.

Relevant charters and acts include:

How much for’ader are we?  Not far.  Federalism would destroy British parliamentary sovereignty but strengthen English:

Federalism solves the West Lothian question and is fair to the English, but would mean the end to parliamentary sovereignty and politicise the judiciary. What is needed is a solution which retains the basic idea of devolving legislative powers to English and Welsh assemblies but which works with the grain of the existing constitution by retaining parliamentary sovereignty.

As mentioned here, the judiciary is going to be strengthened, if only in the interim and do the people of this nation want that?  Do we want parliamentary sovereignty when it is abused by the parliament acting against the people?  Would the judiciary act in support of our rights as English?

The question of the politicizing of the judiciary is also hand in hand with the independence of the judiciary:

This long constitutional conflict was all about power. Where did sovereign power reside? What was, or should be, the source of supreme law? What power did the sovereign have to dispense with the law? To whom were the judges responsible? The efforts, first of the unelected judges under Coke, and then of the elected parliament, to harness the powers of the Crown, led eventually, and unexpectedly, to the assertion by parliament in 1688 of sovereign power, faute de mieux. They also led to parliament’s recognition of the importance of underpinning the principles of judicial independence in a very public way.

And do we codify or allow the statutes and precedent to determine law and constitutionality?

Codifying the constitution, however, has never been the English way of doing things, and whatever Montesquieu and Blackstone may have said, a rigid division between judicial, legislative and executive powers never in fact took place in this country. Lord Mansfield CJ was in the Cabinet between 1757 and 1765 and as late as 1806 Lord Ellenborough CJ was a member of that body. The government of the day defended the appointment by saying that “we take not our principles of the English constitution from the theories of Montesquieu and Blackstone, but from precedents, and it was idle to talk of the separation of powers”. More recently Lord Cave was Home Secretary for a couple of months at the end of the First World War when he was also a serving Lord of Appeal in Ordinary.

This post touches on the sovereignty question.  Also, Akehurst, Michael; Malanczuk, Peter (1997). Akehurst’s modern introduction to international law. London: Routledge. pp. 65–66 maintains, concerning repealing the ECA:

The repeal of this Act would leave European Union law unenforceable in the UK, but the UK would still be bound by treaty obligations to the European Union.

This last is the complication.  Let’s say we do repeal the ECA and also leave the EU.  Does that mean an end to agreements already signed into UK law by the traitors in Westminster?

Pig’s breakfast really, isn’t it?

IMHO, we should not have a written constitution but should rely on statutes already in place prior to our accession to the EU, via the ECA.  Not a great solution but better than many.  We should also simply declare our intention to depart the EU and then put a referendum, at the next council elections, after that is done: “Did parliament have the legal right to withdraw from the EU and to repeal the ECA?  Yes or No?”

That would be an interesting precedent indeed.

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3 comments for “Constitutional games

  1. June 19, 2011 at 16:15

    Thanks for the link James.

    There are really only two ways to leave the Stupid Club:

    Option 1-Repeal ECA 1972 and deal with the fall-out.

    Option 2: Beg permission from the other 26 members. (Unless ALL agree, we are still in).

    I go (not unsurprisingly) for Option 1.


  2. June 19, 2011 at 17:56

    Now it needs a PM with balls [no pun] to do it.

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