The 14th amendment and oath-breakers

The 14th amendment and oath-breakers

In the linked video, Michael Pocock, a lawyer correspondent on the Meidas Network expresses his delight at Baude and Paulsen’s white paper, “The Sweep and Force of Section 3” which argues that the 14th amendment to the Constitution prohibits Donald Trump from holding any federal office, including that of President as the clause forbids holding office by former office holders who then participate in insurrection or rebellion. Baude and Paulson are well known and respected judicial scholars and members of the Federalist Society and known supporters of the originalist doctrine of interpretation of the Constitution. The rest of this article, see overleaf, reproduces the powerful abstract and links to two further news commentaries. ...

Subsidiarity, representation and human rights

Subsidiarity, representation and human rights

Despite the picture above, this is a short piece of comparative politics, comparing the US Constitution with that of the EU, taking in some lessons from the UK. I have just watched The Original Intent of the [US] Constitution by Prof. Mark Stoler. This taught me some things and this essay reviews these points and looks at lessons for the UK, the EU and the rest of the world.

I look at the “Separation of Powers” vs “Parliamentary Sovereignty”, note that checks and balances are designed to protect the [untitled] aristocracy against the mob, that without the Bill of Rights, the US Constitution may well not have been agreed. I note the desirability of a basic law, with the ability to amend, but not as flexibly as is the case in the UK. I look at constitutional inflexibility in the residual construction of the US Senate and the EU veto. I look at the need for federal taxation powers. I have concluded that parliaments need a freedom of action, and the freedom to negotiate between party programmes. The paradox is that they need to be constrained which is why we need human rights law.

The lecture to me reinforces the need for a subsidiarity guarantee within a constitution, including taxation powers, and a human rights guarantee, remembering that human right law is designed to protect you from the Government. Vetoes are a topic for another day, although much of the failings in the US Constitution can be placed at the door of single seat constituencies, including the Presidency, elected by simple plurality, or indirectly in the case of the Presidency. I say more overleaf ….

Losing one’s way

Over the last few days, the Guardian has broken the story of the illegal use of personal data in the US 2016 general election. We are now waiting for the trail to come back to UK politics, in particular, the use of Cambridge Analytica (or one of its associates) by the alliance of Leave organisations. The data was stolen, well acquired, from Facebook, but it seems they knew for two years and there is some argument as to their corporate complicity. Their Chief Information Security Officer has been on the way out since the end of last year and some stories suggest it’s because he argued for greater openness in co-operating with the enquiries into Russian state sourced fake news.

Citizens, their representatives and law makers have been arguing that IT companies should have a duty to report security breaches to law enforcement and the EU is introducing such a law now; such Laws exist in California which is where Facebook is headquartered. We should also note that their duty to protect their users personal data is governed by the US privacy laws, the now defunct EU Safe Harbour agreement and its successor, the Privacy Shield. In addition, the US signed up to the 7 Principles of Data Potection when first declared by the OECD.  It is a fact however, that many US business executives (and their employees) consider the European Data Protection laws as non-tariff import barriers, not that this should matter but I have no doubt that considerable time has been spent in determining where the line between legality and illegal activity stands.

There are several factors in the US political culture which often makes it hard for the US to obey foreign laws (and their own), one of them being, that they often have difficulty in legitimising their own laws and law enforcement.

This is, to me, summarised in the 10th Amendment, one of the Bill of Rights amendments to the US Constitution.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

There is a beauty to the sentiment and an economy to the words, but they are a fundamental challenge to the rule of law. (Is this a bit extreme?) The Citizen’s United ruling, which upheld the citizen’s free speech rights for an association, can be taken to mean that corporations have citizenship rights. US Laws are hard to make and often Laws re challenged in court often to the Supreme Court asking for laws to be struck down as unconstitutional. The upshot of all this is that politicaly citizens can take a view on whether a law is legal in the knowledge that if they win, unlike in Europe & the Antipodes where the Government’s have majorities in their legislatures and will rewrite the laws, they get to do what they want.

The US tradition of a people’s access to justice, showcased by the Judge Judy show is also admirable, if a bit bizarre to UK eyes but it is another dimension of the US commitment to rights and the rule of law; they’e just a bit weaker in understanding collective and inalienable rights, such as privacy (except from Government).

We also have the growing dichotomy between companies Legal and Compliance teams, with Legal advising under the protection of client/attorney privilege in the best interests of their clients and Compliance having a duty to the public advising how not to break the Law.

One can see how US Companies might lose their way. It’s nothing to be proud of though, the UK route to corruption is just shorter as currently viewing the C4 news program on Cambridge Analytica will show.

Do politicians understand? They may not understand the details of the tech., but they do understand Human Rights law and the rule of law, although some of the House of Commons are to quote the shadow chancellor “Fucking Useless”, and the select committees could do with better advisors;  the purpose of the witnesses is to deliver this advice and knowledge, but you need to know the questions and understand the answers. You need a nose for a cover up and to know the 2nd question. …

Copyright, a constitutional right

For some reason, I had a quick peek a the US Constitution earlier today, I wonder if Congress’s powers,

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

would permit nationalisation? What gobsmacked me though is that artists, authors and inventors copyright protection is a constitutional right. The constitution grants congress the right, or maybe duty,

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Mind you, I don’t see where it says that companies have the right to buy the copyright and pursue the author, artist and inventors customers. In fact, the consitution states that these rights should accrue to the authors and inventors, not their agents. Perhaps the current legal framework is unconstitutional.

ooOOOoo

Several people are exploring in the US, the limits of useful Arts, in particular looking to see if Porn films can be considered ‘useful arts’? DFL 12 Aug 2103 …