The United States is a gangster state at home and a rogue state abroad

 

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

The BBC’s depressing lack of inherent institutional strength

10th November 2025

The BBC needs to be a robust, independent institution

*

The British (or Bullied) Broadcasting Corporation is suffering another kicking.

Of course, the BBC is not perfect, and nor is its ultimate legal method of funding, which relies on the criminal law and a prohibition on using television sets without a licence (ie, permission) from the state.

That the criminal law is involved at all in this area is a wrong and something to which this blog may return. There are other ways of funding a public service broadcaster and the sanction for non-payment of the licence fee should be a civil debt and not anything to do with the criminal law.

But there is also a great deal of good about the BBC and its special legal structure.

(Personal tastes will differ in respect of content. I will give a shout for radio channels 3, 4 and 5, the world service, local news, and for Match of the Day. I loathe the Today programme and Question Time, now parodies of what were once-interesting news formats. And many current news priorities of the online BBC news do seem rather odd, though not in the way the commercial media aver.)

*

The primary benefit of the BBC is that there is a large-scale broadcaster and online publisher structurally outwith the commercial pressures of the other forms of news media. And this is a valuable benefit.

Legal frameworks and nominal autonomy, however, are of less importance than a sense of institutional integrity.

Just as this blog emphasises that constitutionalism is more important than the form of any constitution, institutions such as the BBC require an independent robustness more than anything written in a charter.

And once that spirit goes, then the institution itself is undermined.

There will be those who will clap and cheer at the senior BBC resignations over the last couple of days, but such elation is misconceived. For the BBC to be this weak as an institution when faced with outside (and politically motivated) criticism is not a sign of a healthy mixed polity.

One of the many bad things done by the Blair governments was the kicking of the BBC over the Iraq WMD issue. The political benefit gained by the administration of the day was more than outweighed by the collapse of institutional confidence within the BBC.

And the current kicking seems similar in its nature – and will no doubt have similar effects.

Something precious in our polity is again being trashed, just because some with political motives want to give the BBC a good kicking, and the BBC will not (or cannot) defend itself.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

An instance of the royal prerogative

All Souls’ Day, 2025

Why an Act of Parliament was not needed to remove the title from the former Duke of York

The most fundamental feature of the constitution of the United Kingdom is the Crown.

At least, conceptually.

In one way or another the Crown invariably provides the ultimate source of power for the other elements of our constitutional order: Acts of of Parliament have effect once they have royal assent; the judgments handed down in the royal courts of justice; the discretionary powers of the prime minister acting on behalf of the crown.

Trace any legal power back far enough, and you will usually end up with the Crown.

(With a few exceptions.)

Indeed, the Crown can confer legal effect on all sorts of written instruments, of which Acts of Parliament are merely one example amongst others: royal charters, orders in council, royal warrants, royal proclamations, letters patent, and so on.

Once they are endorsed by the crown they, by constitutional magic, have legal effect.

It is a convention of the common law courts that Acts of Parliament have priority above the other royal instruments (a mere rule of statutory construction, as someone once mischievously put it.). But from another point of view, all are instruments that have legal effect once they are endorsed by the monarch.

Like a prime minister, an Act of Parliament is first amongst equals.

*

When the question arose about how to remove the ducal title from an individual previously known as a prince, many assumed that it could only be done by Act of Parliament.

Here there seemed to be a precedent: the Titles Deprivation Act of 1917 – the text of which is here – which was used to remove titles from aristocrats on the side of Germany in the first world war.

Presumably, the thought went, such a statute would be required again.

No.

If one looks carefully at the 1917 Act you will see that it recognises but does not create a right of the-then king to remove an honour. It instead provides a scheme for selecting which peers would lose their titles, and for dealing with consequential points like succession and property.

The 1917 Act was one way of putting the question before the king and for addressing any aftermath, but it was not the only one. It was not an exclusive method.

*

And so what happened last week was that the current king used another legal instrument – a royal warrant – to remove the title from his brother.

The warrant instructed the Lord Chancellor – responsible for maintaining the roll of peerage – to remove the title.

As simple as that.

One reason is was so easy was because of the constitutional changes of 1999-2005 which affected the composition of the House of Lords and the changed the nature of the Lord Chancellorship – see here.

Because a peerage no longer carries an automatic right to sit in the legislature, there is really little legal traction to a title, and so less impediment to it being removed by means other than an Act of Parliament.

A royal warrant was thereby a deft workaround, instead of a statutory scheme such as the 1917 Act.

*

Never underestimate the residual force of royal power in the United Kingdom (though Scots law is not necessarily the same on this as the laws of England and Wales and Northern Ireland).

The king can still do all sorts of things which have legal effect and without any Act of Parliament.

And many of these powers can be used “on behalf of the Crown” by ministers.

The problem with all this is that those royal powers are not directly checked and balanced by parliament.

And so whilst we may clap and cheer and the king’s clever constitutional move here, it would generally be preferable for such things to be dealt with by parliament, and not the crown.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

The one-way constitution

29th October 2025

Some say Trump and his circle are disregarding the constitution – but that is only half right

We have a tendency to think in binaries – and this is certainly true about when we think about constitutions and constitutionalism.

We will take a view on whether a politician is acting either within a constitution or not.

And if not, we may use emphatic phrases with redundant adverbs: “[A] is completely disregarding the constitution” or “[B] is totally ignoring the constitution” – and so on.

But with the case of Trump and others, this is not correct, “completely” or “totally” or otherwise.

For in practice Trump keen on the constitutional protections that protect him and confer on him powers, and his various supporters are keen on the constitutional provisions that protect them and give them powers.

The constitution is not disregarded or ignored when it is to their advantage.

When it suits them, the constitution is very much intact.

They just do not want those elements of the constitution that check and balance them, or which confer rights on those they want to attack

It is one-way constitutionalism.

*

Over at Prospect (click here) my latest “weekly constitutional” post applies this general observation to a couple of concrete examples: about how the Trump-allied Speaker of the House of Representatives is using his powers to not swear in a political opponent over a month after she was elected, and how the conservative majority on the Supreme Court are using a “shadow docket” to determine cases in the government’s favour without full hearings.

But there are many other examples – consider Trump’s use of the pardon power to circumvent and frustrate accountability in the criminal justice system, or how is using executive orders to usurp the proper role of Congress (with Congress nodding-along).

All these examples are, in their different ways, uses and abuses of powers and rights allocated by the constitution.

If Trump and his allies were genuinely disregarding the constitution they would not be able to do these things.

Instead what they are doing is gaming the constitution.

A constitution for me, but not for thee.

*

As such, they are adopting a similar approach to how they deal with other matters of first principle.

Free speech for me, but not for thee.

Law and order for thee, but not for me.

And so on.

As someone once described conservatism, though it also is wider application:

Conservatism consists of exactly one proposition, to wit:

There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.

There is nothing more or else to it, and there never has been, in any place or time.

This is formal power using a one-way valve.

*

If full, two-way constitutionalism is to be restored in the United States and elsewhere it will not be a case of building up from ground zero.

It will be a far more difficult exercise stabilising and remedying a structure which has half-fallen down – and against the unwilling occupants of the still-stable bits.

Restoring constitutionalism will be a big job – and it will be more demanding than, say, having a revolution and starting again.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

One way for a civil war to begin is for a constitution break down

3rd September 2025

Yes, an incoming illiberal and radical UK government would have absolute constitutional power

27th August 2025

Only good fortune has prevented previous governments from misusing our constitutional arrangements more than they did

The constitution of the United Kingdom provides for two – perhaps three – super-powers for governments with a firm majority in the House of Commons.

*

The first super-power is the doctrine of parliamentary supremacy.

(Some call this ‘parliamentary sovereignty’ though this blog tends to avoid that phrase, as parliament is only sovereign in its capacity to pass primary legislation, and not in other ways. Parliamentary resolutions and other motions have no real outside force, and secondary legislation can be quashed by courts.)

Under this doctrine an Act of Parliament – that is, a Bill with Royal Assent and which is, when applicable, passed in accordance with the Parliament Acts – cannot be gainsaid by anyone anywhere.

When the United Kingdom was in the European Union a court could (and did) strike down an Act of Parliament, though the polite fiction was that was because the European Communities Act had priority over legislation to the contrary. But since Brexit, that is no longer exception to the doctrine.

A government with a firm majority in the House of Commons can (even if with a year’s delay under the Parliament Acts) force through the House of Lords any legislation it wants.

Yes, there are conventions – but conventions can be freely discarded and if, say, a Reform Party manifesto was explicit in what it wanted to do, the Salisbury Convention, for example, would not even apply.

Under the doctrine of Parliamentary Supremacy, a Reform Party government could do exactly what it wanted with primary legislation.

*

The second super-power is the so-called Royal Prerogative.

This means the Prime Minister of the day can exercise certain powers with legal effect, free from any statutory basis.

A Prime Minister can sack ministers (and perhaps others) and make or break treaties and grant pardons and so on,

The main limits to this power are that the Royal Prerogative cannot be extended to new areas and that if there is a clash with an Act of Parliament then the legislation has priority.

There are also other legal limits such that it needs to be exercised “rationally” and fairly in certain circumstances, and it cannot be used to make fundamental changes in the law – but in practice the courts are very deferent to the Prime Minister.

In theory this is a power of the Crown, but in constitutional practice the power is exercised by the government of the day.

And these powers of the Royal Prerogative will be at the disposal of a Reform Party government.

*

The possibly third constitutional super-power is the sheer range and wealth of discretionary powers of the government not under the Royal Prerogative but already existing under perhaps thousands of legislative provisions.

Some of these provisions under Acts of Parliament even allow ministers to change the law by ministerial discretion, as well as to issue statutory instruments and other instruments (such as statutory guidance) with legal effect.

Every successive government has added more of these provisions, even if they complained about them in opposition.

And it would be open to a government under the first constitutional super-power – the doctrine of parliamentary supremacy – to add even more of these powers

One suspects various “think-tanks” are already collating the discretionary powers that already exist, ready to arm – DOGE-style – an incoming radical and illiberal government.

Such an incoming government would not need to break the law – for the law already will provide almost all the powers such a government could want.

*

That no previous government has used these super-powers to the hilt is because of one thing alone.

Luck.

The governments of Boris Johnson and Elizabeth Truss, for example, were too incompetent to see through many of the radical notions of some of their advisors and cheerleaders.

Fortunately Johnson’s and Truss’s hubris met a constitutional nemesis, and the body politic spat them out of office.

But we will not always be so lucky.

As with the passage quoted on this blog a few days ago about crushes in football stadiums, those nominally in charge will not always save us.

*

The potential for abuse by a government with a firm majority has long been spotted by observers.

In 1929 the then Lord Chief Justice Lord Hewart published The New Despotism, warning of the implications of the doctrine of parliamentary supremacy.

 

In the 1970s the Conservative politician Lord Hailsham warned of an elective dictatorship – though he did nothing as Lord Chancellor in the 1980s to counter this threat.

We cannot say we have not been warned.

This has been a possible danger since the modern doctrine of parliamentary supremacy became constitutional conventional wisdom.

(Even the main theoretical proponent of parliamentary supremacy – A. V. Dicey – wanted to have referendums built into the legislative process so as to stop governments doing as they wished with primary legislation – though in his case his fear was Irish Home Rule.)

*

So a competent, prepared and briefed incoming illiberal and radical government – either under the Reform Party or otherwise – would have nothing to stop them.

The only limits would be (currently) theoretical ones.

Perhaps the King could refuse Royal Assent – though no monarch has done this for three hundred years.

Perhaps the courts could impugn the doctrine of parliamentary supremacy – though one has to go back perhaps to the early 1600s to have authority for this now heretical view.

But that would be it.

The House of Lords would only have a power of delay.

Nothing would check or balance such an incoming government, short of the King or the courts doing something drastic, which in turn would no doubt lead to a constitutional crisis.

The gatekeepers and the “good chaps” and their counsel and practice of constitutional self-restraint would count for nothing, if any such people would be around at all.

*

Those now in government and parliament know all this (or should know all this).

If an illiberal radical government obtains a firm majority at the next general election, and is competent, then as the law currently stands nothing would hamper them in what they want to do and much would help them.

But those now in government and parliament are doing nothing to limit the scope of such potential damage.

They know this could happen (or should know), yet they are doing nothing to stop it in advance.

And so all we have to rely on is one thing.

Luck.

Brace, brace.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Who has control over “legitimate” coercive and lethal force?

“…everything is going to be alright” – conflict, balance and resolution in law and policy

22nd August 2025

*

In his 1992 memoir Fever Pitch, Nick Hornby describes his experience of a crush in a stadium at a 1980 match (before the tragedies later on that decade):

“…there was a forty-thousand-plus crowd.

“Something went wrong – they hadn’t opened enough turnstiles, or the police had made a pig’s ear of controlling the crowd flow, whatever – and there was a huge crush […]

“I could pick both my legs up and remain pinioned and, at one stage, I had to put my arms in the air to give myself just that little bit more room and to stop my fists digging into my chest and stomach. […]

“But the thing was, I trusted the system: I knew that I could not be squashed to death, because that never happened at football matches. The Ibrox thing, well that was different, a freak combination of events; and in any case that was in Scotland during an Old Firm game, and everyone knows that these are especially problematic. No, you see, in England somebody, somewhere, knew what they were doing, and there was this system, which nobody ever explained to us, that prevented accidents of this kind.

“It might seem as though the authorities, the club and the police were pushing their luck on occasions, but that was because we didn’t understand properly how they were organising things. […]

“But I thought about that evening nine years later, on the afternoon of the Hillsborough disaster, and I thought about a lot of other afternoons and evenings too, when it seemed as though there were too many people in the ground, or the crowd had been unevenly distributed. It occurred to me that I could have died that night, and that on a few other occasions I have been much closer to death than I care to think about.

“There was no plan after all; they really had been riding their luck all that time.”

*

You may think:

“….somebody, somewhere, knew what they were doing, and there was this system, which nobody ever explained to us, that prevented accidents of this kind.”

But:

“There was no plan after all; they really had been riding their luck all that time.”

*

At the end of the 1954 novel Lord of the Flies, Ralph is running and frightened, and he falls, and then:

“He staggered to his feet, tensed for more terrors, and looked up at a huge peaked cap. It was a white-topped cap, and above the green shade of the peak was a crown, an anchor, gold foliage. He saw white drill, epaulettes, a revolver, a row of gilt buttons down the front of a uniform.

“A naval officer stood on the sand, looking down at Ralph in wary astonishment.”

Everything is going to be alright.

*

There is a tendency to assume that unpleasant situations will resolve themselves, that problems will have solutions.

This tendency can be associated with certain modes of thought: that a court process will come to an end; that a constitution will regulate political conflict; that a thesis and antithesis will become a new synthesis; that a market will clear and come to an equilibrium.

In an image: the notion of the scales:

Things will balance, eventually.

A naval officer will turn up on the beach.

The police and the stadium authorities will know what they are doing.

Everything will be alright.

*

There is another, related tendency, of those who have not experienced things resolving themselves.

This is the complacent tendency of exceptionalism.

As Hornby avers in the quote above: what could happen at Ibrox would never happen at an English stadium.

The Ibrox thing, well that was different, a freak combination of events; and in any case that was in Scotland during an Old Firm game, and everyone knows that these are especially problematic.”

A similar sentiment is that what happened in Germany in the mid twentieth century would not happen anywhere else.

The Nazi thing, well that was different, a freak combination of events; and in any case that was in Germany during the 1930s, and everyone knows that was especially problematic.”

*

It can’t happen here.

*

So one can be tempted to think what is happening in the United States is eventually going to be alright.

That the constitution will resolve the issues, and the mid-terms are on their way.

And in terms of narrative, soon those “on the wrong side of history” will realise they are actually being the baddies and see the error of their ways.

Thesis and and antithesis will become a new synthesis.

There will again be an equilibrium.

Everything will be fine again.

*

The problem is that some conflicts never resolve, at least not without an absolute victory for one side and an absolute defeat for the other(s).

The current culture wars and cruel partisanship may not settle down to an agreed narrative, where one side admits they got it wrong.

The nastiness may continue, without there ever being a naval officer on the beach.

That the police and the stadium authorities really had been riding their luck all this time.

*

Trumpism is not going to go away, at least not easily.

An entire generation of people, many far younger than Trump, now know what it is like to exercise power without political, legal, or normative limits.

They see how the courts and the legislature can be made to cower.

They see that a codified constitution is impotent at setting limits, and in providing for checks and balances, without a sense of constitutionalism.

And in this situation, the political gatekeepers are not more useful than the old turnstile operators, adding more people to the crush.

*

Trump and Trumpism provide the most fundamental of challenges to constitutionalism.

And having tasted real, raw power, the Trumpists are not going to go away of their own accord: they like it here.

Unless and until Trump and Trumpism are defeated, there is no reason to believe constitutionalism will survive in the United States – or elsewhere with similar politics.

Brace, brace.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Whatever happened to conservative constitutionalism?

13th August 2025

There is a puddle where a serious-seeming body of thought used to be

There was once such a thing, in the United States and elsewhere, as constitutional conservatism.

This was a body of thought which provided an approach to thinking and acting about constitutional issues. It was a body of thought which, of course, would not be that shared by a liberal or a progressive, but it was a set of ideas and practices nonetheless. One could disagree with it, but it was there.

And now, it has gone.

It was dissolved into barely a puddle, like the wicked witch at the end of the film of the Wizard of Oz.

*

But not long ago, it was whole and (seemingly) formidable – again like a wicked witch.

It put forward arguments on States’ Rights.

It put forward arguments against the abuses of federal government.

It was aghast at situations like the Waco siege of 1993 where federal lethal power was used against individuals.

It took precedent seriously and also the settled caselaw of the courts.

It took individual rights seriously, including in respect of due process when challenging executive power.

It took Congress seriously, in setting the parameters in what presidents could and could not do, in economic policy and in directing military action.

As a reader of a liberal constitutionalist blog, you probably would have disagreed with some or all of this conservative constitutionalism.

Yet it existed for you to disagree with.

And now, it is a puddle.

A puddle where a serious body of thought used to exist.

*

We now instead have a president who wants to use and abuse lethal and coercive power to the hilt, regardless of Congressional oversight and States’ Rights. A president who wants to militarise the capital city.

A president who cannot get enough of “emergency” powers to rule by decree – for such “emergency” situations as placing tariffs on an island of penguins.

And Congress and the courts stand by, and even clap and cheer.

They could stop him, with the powers vested in them by the codified constitution of the United States.

*

For there are always Trumps – the difference is what the holders of the checks and balances do to prevent Trumps (and their allies) doing as they wish.

But all those earnest conservative articulations and expositions about how the constitution would prevent the abuse of power were for nothing.

All those stout defences of States Rights and the Bill of Rights were for nothing.

There is just now a puddle.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Constitutional law during a carnival of cruelty

31st July 2025

Protecting rights when causing pain is the point of policy

At the beginning of The Lion, The Witch and the Wardrobe it is always winter and never Christmas.

In the United States at the moment, as well as in some other places, it seems that it is always a carnival and never Lent.

Here ‘carnival’ is meant as a period where usual norms and rules are disregarded, a time for ‘anything goes’ – which, in US law and policy terms, means anything the federal government can get away with.

And it is not any old carnival, but one where the federal government is be as cruel as possible to those to whom it can be cruel.

It is thereby a carnival – a carnival of cruelty.

*

There is a quaint view that human beings need some reason to be cruel.

This is the view associated generally with, say, discussion of the Milgram experiment or the ongoing historiographical debates over the actions of the German reserve police battalion 101, where there is discussion over the motives of those who are cruel – and whether they are being merely obedient to authority.

But human beings often do not need a pretext or a reason, still less a justification, to be cruel to other human beings.

They just need an opportunity.

Some of the commentary about the approach of the Trump presidency emphasises the cruelty:

If this is the case – and the impression conveyed by what is being reported by the news indicates this is the case – then where does that leave law and policy?

*

In a modern liberal democracy one fundamental – indeed, absolute – value is that cruelty is wrong.

In the words of Judith Shklar, cruelty is the worst thing we can do.

(Shklar, like Hannah Arendt, is a political philosopher whose work is now more relevant than one would like.)

A liberal democracy thereby often proceeds on the happy assumptions that creulty can be banned and that, left to themselves, those with political or coercive power will not be cruel – and if they are, there will be legal protections for those facing the cruelty.

But what if those with political and coercive power do not care anymore about being cruel – or even being seen as cruel?

And what if those who are supposed to check and balance those with political and coercive power – the legislature or the judiciary – nod-along with the cruelty, and even clap and cheer?

One by one, each of the hallowed constitutional principles of a liberal democracy have been found to be an empty slogan.

A codified constitution has offered no protection – when there is no constitutionalism.

The seperation of powers offers no protection – when those powers are aligned against the individual.

The rule of law offers no protection – when the courts uphold unlawful decrees, and stay or deny all challenges.

The carnival of cruelty continues, and continues – and nothing intrinsic to the polity can bring it to an end.

No polite, uniformed grown-up is going to suddenly turn up on the beach (from their own warship) and bring an end to this lordship of the flies:

This is a two-minute hate which lasts rather longer:

As Adam Serwer set out first in a remarkable essay and then in a book, the cruelty is the point.

*

Until and unless there are any elections that mean that the policy will change, there is little that can be done to face this down completely.

But there are things: litigation is still being brought, pressure is still being placed on legislators, and the media are still reporting things (else we would not be aware of various abuses) – and there is still the prospect of elections (though some rightly fear about whether those elections will be free and fair).

The carnival of cruelty has not consumed everyone, and one can still see it from the outside, and there are still parts of the town as yet untouched.

One day the carnival of cruelty may come to an end.

But this is not a good time for law and policy in the United States (and elsewhere).

The institutions and constitutional principles that were there to protect individuals from an illiberal, cruel state have been tested, and they have failed.

And if – if – liberals and progressives are ever back in power, considerable thought needs to be applied to how such a total law and policy failure can be avoided next time.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.