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14 November 2019


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". . . apparently Jefferson never did produce [the documents subpoenaed by Chief Justice Marshall]"
An age old tussle.

What President today could get away with ignoring a subpoena? The possibility that Jefferson did neglect the subpoena probably indicates a broad, political support for Jefferson's position. John Marshall as Chief Justice was, after all, a lame duck appointment by the defeated John Adams and an outgoing Federalist Congress, just before Jefferson and the Republicans took office.

If the subpoena proved unenforceable, then one might argue that the precedent it creates is weak at best.

At least, in the case of both the Jefferson and Nixon subpoenas, the case at hand was directly a matter of state: questions of treason and malfeasance within the Executive Branch.

English Outsider

On the question  of Judicial control of or interference with the Executive am I right in believing that this lecture from Attorney General Barr at the Federalist Society's National Lawyers Convention goes directly to the point?


It's a truly great lecture, covering the issues from first principles up. If we over here had a good look at our own constitution we might find that the American solution to the problem that the Framers were wrestling with - how do you get the job of government done when the elected Legislature is inevitably faction ridden and therefore slow and divided - should be considered if ever we attempt to make our own constitution more fit for use.  But that's a separate issue, particularly since there's a growing body of concerned opinion in the UK that reform of the House of Commons might more properly be undertaken by a bulldozer than by constitutional theorists.  

Transcript (not always verbatim) -


But to the immediate point.  I had expected to be baffled by the lecture because of the difference between your and our constitution.  Your Executive is separate from the Legislature and cannot be removed, or not easily removed, by the Legislature.  Our Executive serves at the pleasure of the majority in the House of Commons and is easily removed if it loses that majority.  Maybe not as simple as that because a UK Prime Minster has great powers of patronage and can also control the legislature by his powers of selecting who in his party is to be a Member of Parliament. Even so, the two systems are so different that lessons from one cannot easily be transferred to the other.  

But to my astonishment I found AG Barr's lessons work here.  Because for a period of several months in the UK we had a Prime Minister who did not have the support of the House of Commons but was nevertheless retained as Prime Minister.  The reasons for this are not here relevant - the majority of the MP's could not decide on an alternative leader for that time. nor perhaps on an alternative policy to his - but the effect was that for that short time we had a system that looked a little like yours - three separate  branches, the Executive, the Legislature and the Judiciary.  And during that time the first two at loggerheads.

So for that short period the Attorney General's masterful analysis of the relationship between the three separate branches of government - what it should be and how it is currently being distorted  - fitted us.

That's why I found myself at home with this analysis coming out of what is normally a very different tradition, and that even though the HoC is now effectively a unicameral Legislature.  There were two points in particular that struck home.

The first is that the House of Commons, finding itself with an Executive it could not remove, resorted to much the same devices to hamstring the Executive as we saw in the States. The HoC had an activist speaker.  The devices he permitted or assisted with have now, I think, been disowned by his successor.  We shall not see them again.  But for that short time he was in practice though obviously not in theory the equivalent of such as Mrs Pelosi. And a battery of obstructive devices was deployed to render the Executive little more than a puppet, able only to carry out the House of Commons' uncertain bidding and not able to act as a true Executive.

Just as well, some would say, but that's not the point.  The point was that the House of Commons was able to hamstring the Executive.  It had never needed to do that before because it can normally get rid of the Executive whenever it pleases.  But for this period when it couldn't or refused to do that, we saw what AG Barr refers to as the necessary and fruitful interplay between the Legislature and the Executive turning into stalemate.  We had a government that could not govern and that, AG Barr warns us, is what is occurring in the United States when similar devices are resorted to there.

The second area of comparison is not as transient.  In the UK the Courts have, certainly since Lord Denning, overtly regarded themselves as being able to get ahead of the pack when it comes to adapting law to changing circumstances or to a different climate of opinion.  Denning was no revolutionary activist.  He was, I believe, if at times somewhat capriciously, doing what the Courts have always done.  Making those adjustments that are, whether one is conservative or progressive, always necessary to adapt law to changing circumstances and often without waiting for the legislature to give them a lead.

That can, however, easily lead to activist judges and from then on to the next disastrous step.  Politically activist Judges who not only seek to override democratic consensus, but who extend their grasp as far as they possibly can into the political process and seek to be, not one of the three essential branches of government, but the supreme and undisputed arbiter of all.

That is, I think, what AG Barr is observing and what he is warning us about.  Both sides of the Atlantic we are at risk of having a judiciary that thinks it's boss.  And that isn't right.  Ultimately, we the people must be the boss.


Yes, maybe vaguely?* And no, it feels considering the respective matters at hand. But yes, sometimes our inner spontaneous mode takes over.

* There surely has been a lot of talk concerning the constitutional power of the president, led for me by Col. Lang's take on matters.

Concerning the specific case that seems to have triggered this: Didn't check. It shouldn't depend on where you stand campwise in Trump's case. (Is someone still seriously interested in those hush money Trump (supposedly) paid? Or ever was, thus one camp's argument would be: simply another fishing expedition)

I guess we continental outsiders cannot be truely part of either the Resistance or the Trump support camp? Were we British maybe we could be? Should law be partisan?



Given the history of the British Monarchy and politics I would be mildly surprised and annoyed if paying off a couple of whores excited and titillatedthe British.

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