CHECKS AND BALANCES … THE POLITICAL RESTRAINTS AGAINST ARBITRARY AUTHORITY.
Checks and balances, those power sharing principles of government under which its separate branches, legislative, executive and judicial, are each empowered to curb actions by the others.
Quoting John Adams, one of the framers of the US Constitution:
It is by balancing each of these powers against the other two, that the efforts in human tyranny can alone be checked and restrained, and any degree of freedom preserved in the constitution.
In the western world’s long and chequered history, political democracy is a rarity, more common tribal societies and the later political development of rule by divine right of kings. Not much need for checks and balances to limit power in either of these systems.
That earlier political system, a tribal closed society ruled by a chieftain or oligarchy of aristocrats, required no internal checks or balances because in tribal societies no distinction was made between the customary regulations of social life and the regularities found in nature. What need of checks and balances when institutions were gifted by the gods and ways of acting determined by taboo? The later political system of territories ruled by kings often took advantage of this magical persuader to proclaim their own divine right to wield authority. Any checks and balances employed were used, not to protect liberties, but to maintain their own autocratic power. These checks and balances took the form of carrot and stick practices such as granting privileges to a noble elite or royal army in exchange for support, to imposing harsh penalties for disloyalty and hiring lots of spies to get wind of sedition or potential uprisings by discontented plebs.
History being a tale of human agency, albeit within a potent context, aims requiring means, when expanding tribal populations took to the sea and commerce, coming in contact with different cultures, those old certainties began to break down, with philosophers like Protagoras and Democritus formulating the doctrine that institutions of custom and law are man-made and therefore able to be altered. By 6th century B.C. around the Mediterranean Sea, this new mode of thinking led to the partial dislocation of tribal life and to the political revolution that was Athenian democracy, with its great spiritual development, the invention of critical discussion.
That Greek Revolution.
In 507 BC, a propitious year for freedom, the Athenian leader Cleisthenes introduced a system of political reforms he called Demokratia – the first known democracy in the world. Athenian democracy was a direct democracy composed of three institutions, the Ekklesia, a sovereign body that wrote laws and dictated foreign powers, the Boule, doing most of the hands on work, a council selected by lottery from each of the ten Athenian tribes, and the Dikasterea, the popular courts in which citizens argued cases before a group of paid jurors who were citizens over the age of thirty, also selected by lot but on a daily basis, so no entrenched public bureaucracy to way-lay democratic decision making.
Affirming the new system, the Greek historian Herodotus wrote: ‘In a democracy, there is first that most splendid virtue, equality before the law.’ Athenian equality before the law, as thereafter in most democracies in their formative stages, was not extended to everyone, however. The Athenian Demokratia allowed this privilege only to all male citizens over the age of eighteen, women and slaves taking no part in the Athenian demos. Nevertheless, compared to Athens’ previous system in which Athenian aristocrats monopolised decision making, the Demokratia was a great leap forward for rule by the people and achieved remarkable developments.
In its two hundred year existence, despite attacks from the enemy abroad, mainly tribal Sparta, and at home, from aristocratic enemies of democracy like the oligarchs known as the Thirty Tyrants, who tried to overthrow it, Athenian democracy produced a remarkable flowering in philosophy, Socratic debate, speculative science, history as a study of human action, and in the arts. Athenian painters and sculptors helped bring about a revolution in representative art and perspective, its tragedians transformed theatre, innovating dramatic form and exploring the human condition in great depth, including giving voice to powerful women… So many achievements in so many fields that initiated the dynamic and humanist tradition that is western civilization.
And most importantly, Athenian democracy paved the way and provided a model for later democracies, from the Roman Republic to the Constitutional Monarchy of Great Britain, to the varied democratic constitutions of the nations of the British Empire, and to the republican experiment in democracy of the United States of America.
‘Equality before the law,’ it’s the essential democratic principle shared by Athenian and modern democracies. How to achieve it – and keep it? By a process of fair and regular elections, every adult citizen having the right to vote and the party with the majority vote getting to make the parliamentary decisions for the next term. Is there a better way? The Athenian demos, western modern democrats and Winston Churchill say ‘no.’ Those who define democracy as mob rule, those Athenian oligarchs, Plato and some western elites, say ‘yes.’
But consider this. What is the opposite of majority rule? Why, it’s minority rule, and we’ve seen in history how that pans out, certainly not a matter of ‘the wise rule, – for every wise Roman emperor, a Nero or Caligula to follow. And just how perfect is rule by a philosopher king? Plato’s proposed ‘Republic,’ based on ‘the noble lie’ and ruled by a wise philosopher king and aristocratic oligarchy doesn’t inspire confidence. What Plato proposed was a complete tyranny where none of the plebs were free to speak or act without approval from their masters. Where Plato asked ‘who should rule? ‘ those who value liberty ask instead, ‘what checks and balances need to be in place, to prevent those in power from replacing equality before the law with rule by a tyrannous minority?’
Rule by a tyrannous minority, there’s a case study in the 1930’s in Germany when Hitler overthrew the Weimar Republic. It also happened in the 1960’s in China when MaoTse- tung incited students in his Cultural Revolution to attack his rivals. It could happen to our western democracies. As in Athens, with its separate governing bodies elected by lot on a recurring basis, the West’s democracies today have checks and balances, a House of Representatives or Parliament to make decisions, an Upper House of Review, or Senate, except New Zealand, some elected, others not, and all the democracies have a judiciary or High Court to throw out decisions by the government of the day deemed unconstitutional. These being human institutions, however, and the human ambitions of its actors being what they are, these checks and balances do not always perform as intended and a democracy, like any other political system, is likely to attack from outside it’s borders or from enemies within them.
Things go awry.
Anyone who has read previous editions of Serf Under_ground Journal may know that serfs’ at the present time have concerns with how western democracies are withstanding such attacks. Some links here…
Serfs like myself are concerned that international bodies like the U.N. and EU, hostile to the democratic process, together with elites within nation states themselves, wishing to replace it with a new globalist world order, seek to impose broadly phrased, open-ended, that is, international laws and treaties on nation states that are intended to supersede a nation’s own well-considered, democratic constitution.
Constitutional lawyer, Professor James Allan has written a book, ‘Democracy in Decline,’ (connorcourt publishing, 2014) identifying the causes of decline in some of our most established and stable democracies, the Anglo-American democracies of the United States, the United Kingdom, Canada, Australia and New Zealand. Professor Allan’s book which he describes as part lament, part call to arms, is worth reading in its entirety for the depth of legal experience he brings to the discussion. Herewith I will attempt to outline some of his argument on the main causes of decline and challenges threatening the further weakening of these democracies.
James Allan is all for majority decision-making even though it may sometimes produce less than desirable results (as may also rule by minorities.) What democratic decision-making means is a matter of process, of how decisions are made. Democratic decision-making means commitment to letting the numbers count, even if some smart, well-informed people may disagree with that decision and argue that the quality of that decision is more important than the process by which it is made. Hmm, isn’t that the old ‘ends justify the means ‘ trick? Says James Allan, ‘For these people,’ says James Allan, ‘the rightness of their view matters more than democracy.’ They are not prepared to wait until they might be able to persuade enough others and their view is no longer the minority view.
So herewith those causes of decline that Professor Allan identifies in Anglo-American democracies, four causes which interrelate in subtle ways, but which, for the sake of clarity, he discusses as separate phenomenon. First under the spot light, an over-powerful and influential judiciary, supposed to be protecting a nation’s constitution but expanding their role to reformulating it. Secondly, the influence of international law, the more you look at how it was created, its lack of transparency, the more you are aware of its lack of democratic credentials, Thirdly, supranational organisations – probably should have written that with a capital ‘S’ and a capital ‘O’, how these organisations, the EU and second-tier bodies of the U.N. like its Human Rights’ Council, enervate democracy at the national level, Fourthly those undemocratic elites, those lawyers, lobbyists, officials, bureaucrats and self-styled human rights activists prepared to impose their own preferences and value judgements on the country without bothering to win a majority of us to this value judgement.
Who judges the judges?
So beginning with the judicial system, a century ago, Professor Allan argues, top judges in the Anglo-American democracies were more respectful to the elected branches of government and much less likely to gainsay the elected legislature. There were sometimes cases where judges needed to interpret some ambiguity in an enacted law but generally they would not attempt to over-ride or circumvent it. From the 1950s and 1960’s on, however, we see unelected judges, selected by appointment, in some countries by unelected committees, becoming more adventurous in their constitutional interpretations and more willing to block or redirect the views of the majority of voters as expressed in laws passed by their elected representatives. James Allan cites a number of cases in different countries where this has happened. (Democracy in Decline p 45.)
James Allan is arguing there’s a sea-change from the judiciary’s intended role, an interpretation of the words used in the Constitution or a Statutory Bill of Rights, which was not a blank cheque telling a future judge to give them the meaning he happens to think is morally or politically best. The original words in a nation’s constitution were debated and argued over by the people drafting them and the wider groups voting for them because they intended those actual words to matter. They were intended to provide a non-fiat form of constitution that put constraints on later judges from striking down or rewriting the elected legislature’s statutes. No blank cheque for judges, changes to the Constitution would have to be voted in.
One of the reasons democracy is in decline is that a lot of judges have moved from this view of looking at the framers’ original intention to one of treating the document to be interpreted as a metaphysical living tree or living constitution, a shift allowing unelected judges to gainsay or overrule the democratic branches whose role it is to make the laws.
James Allan analyses how these democracies, with the exception of Australia, have facilitated this living tree notion by adopting a Bill of Rights. While a Bill of Rights is sold to the electorate on the basis that it does not take precedence over the prior constitution and is locked in, not a blank cheque for judges, ( few would likely support it else-wise,) when Canada adopted its Charter of Rights in 1980, and New Zealand in 1990 and the UK in 2000 each adopted a Bill of Rights, these provisions were soon by-passed by judges taking advantage of the vague and amorphous language of their human rights statements that required interpretation. Using the living tree approach each of these country’s judiciary began exceeding their judicial power, invalidating prior law and soon asserting their right to do so. Here’s an example, the Ghaidan Case in the UK where the top judges asserted they now have the power, when interpreting all statues, to read words in, delete words and even ignore the legislature’s undisputed intentions, and do so even where there is no trace of ambiguity. Here is the actual wording:
It is now generally accepted that the application of S.3( the reading down provision in their statutory bill of rights) does not depend upon the presence of ambiguity in the legislation being interpreted. Even if, construed according to the ordinary principles of interpretation, the meaning admits of no doubt,S.3 may none the less require the court to… depart from the intention of the Parliament which enacted the legislation… is also apt to require the court to read in words which change the meaning of then acted legislation so as to make it [bill of rights] compliant. (Democracy in Decline. p70.)
International Law, Guidance from the Olympian Heights
James Allan looks at the ways in which two kinds of International Law exert undemocratic influence on domestic law in each of the five Anglo-American democracies. The first is by way of ambiguously phrased UN International Treaties that play an increasingly influential role in determining judicial outcomes compared to less ambiguous, domestic statutes, international treaties which have been formulated without any citizen input. The second type of international law, known as customary law, is a non-treaty sort of international law that can flow on from treaties and have influence on local judicial decision making although it has never been agreed to by any accountable legislators.
In the first case, this happens by adoption of International Treaties like the UN Convention on the Rights of the Child, (CRC) with its open-ended wording For example: State parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical and mental violence.
The ways the U.S, the UK, Canada, Australia and New Zealand respond to these treaties has changed over the last 40 or so years. In Westminster political nations in the past, while treaties could be ratified by the country’s executive and not by majority vote, this didn’t matter too much because the treaty did not become domestic law. Treaties had little force despite ratification. In the United States, though, treaties were taken more seriously, requiring that they be voted on in the Senate and if ratified by a super majority, were expected to become statutory law.
Today in Westminster countries, treaties are being acted upon by judges as though they are part of domestic law. In the US, what is taking place is even less democratic with treaties like the CRC over-ruling constitutional law even when they have failed to win Senate approval.
So who gets to create and monitor these treaties? Why, they’re created and monitored by the UN member-committee consisting of those forty-nine countries that make up the Human Rights Council. Only seven of these members come from the five Anglo-American democracies, the overwhelming majority coming from countries with abysmal human rights records, countries that James Allan says, ‘you wouldn’t take any moral advice from if your life depended on it.’ (P 87.)
And there’s that second kind of international law known as customary law with its practises that ‘are inferred’ or ‘have been identified,’ referred to in passive voice to gloss over the question of who gets to do this inferring or identifying. Well who gets to make these decisions are publicists, legal academics who have no democratic warrant whatsoever, and as James Allan points out, as a group are likely to have political and moral values far to the left of the general electorate, and be appointed by a lawyerly caste because of their perceived ‘soundness.’ Regarding the election of this group of people into the International Court of Justice, many from non-democracies, a great deal of horse trading takes place, a method of selecting International Court judges that Allan describes as ‘opaque,’ By way of this Customary International Law process, when it comes to resolving debatable social policies. as with UN Treaties, a nation’s voters are overwhelmingly locked out.
So on to the third cause of decline of democracy in western nations, those supranational organisations.
Supranational Organisations – they’re ‘Groupies.’
In these organisations lots of diversity you might say, many geographies, many nations, some with parliamentary systems, others with presidential systems, some constitutional monarchies, some with no constitution at all, the diversity of democratic, or non-democratic provisions may be staggering. With the EU, a federation of democratic nations and the UN, a council of both democratic and non-democratic nations, votes are made by each country’s representative, individual members of that country having no say at all. Turns out it’s even less majoritarian because each country has equal representation, so countries with big populations get the same representation as much smaller ones.
In that supranational organisation, the European Union, though it may be a club of democracies, its countries do not vote on everything and individual citizens have no say. The EU is a supra-bureaucratic body in the which an unelected civil service proposes new laws and the parliament does not get to propose laws but only veto them.
The UN is also democracy deficient, specifically in its second-tier agencies, like the Human Rights Council, controlled by voting blocs from the world’s despotic nations, Sudan, Cuba, China … any wonder that there are ever more sweeping powers for judges under UN made prescriptions, any wonder that there are ever more regulatory controls on the freedom of a nation’s citizens to make their own decisions.
Supranational organisations, one of the external causes of a nation’s democratic decline, that fourth cause of decline, sadly, those undemocratic elites that undermine it from within.
Undemocratic Elites, we who know what is for the best…
Of course we know about those judges and lawyers, lobbyists and publicists, any of those elitists ‘prepared to impose his or her preference or sentiment or long thought out value judgement on the country without bothering first to convince a majority of us that this preference or that value belief or this moral position is the best one (or least bad one,) in the circumstances. ‘ (D/D P121.)
Apart from those elite judges and that elite international legal fraternity, there are also some parliamentarians prepared to by-pass the electorate to get their own agenda into law. There are elite politicians in the UK, says James Allan, who reneged in their undertaking to put entry to the EU to a referendum. Once ensconced in the EU, elite politicians have tended to drive policy through the EU rather than going the way of public opinion. In Canada, there are those elite politicians refusing to invoke S33 when domestic law is being invalidated, such as common law definition on marriage or abortion laws that are being changed. In the US, there have been many elected office holders, from the President down to elected Mayors, who prefer winning their victories in the courts, relying on the court’s interpretation of immigration laws, for example, rather than being prepared to court public opinion. In all our five nation states, these practices by supposedly accountable politicians are weakening our democracies.
As James Allan argues, if these elites were more attached to democracy, judges would be more deferential to electors and far less inclined to be adventurous in
their legal interpretations and politicians and international organisations would be more prepared to put issues to democratic vote. These are the actors James Allan targets in his book, ‘Democracy in Decline.’ To which I’ll add others like George Soros, Read his Manifesto and you’ll observe his globalist agenda and stated wish to bring down the US democratic state. Examine his Ópen’ Society Grants Program and you’ll see how he funds organisations like the radical Brennan Centre that work to subvert the US electoral system and funds educational institutions like Bard College, that specialise in training social justice warriors.
To James Allan’s undemocratic elites I’ll also add those Silicon Valley Big Tech directors, you know who they are, who are even now, as I write, shutting down debate in their social media outlets that is contra to their own leftist views. And let’s not forget the many academics in those publicly funded universities supporting hate-speech attacks by students against free speech, conducting cancel culture trials on recalcitrant teachers who must be sure to give warning if they say something that may discomfort some students. Say, what ever happened to Nullius in Verba, motto of The Royal Society? Oops, now it, too, has restrictions relating to open debate when it comes to matters it decides are settled science.
‘Let truth and Falsehood grapple,’ says John Milton,
‘ Who ever knew truth put to the worse in a free and open encounter? ‘
Let truth and falsehood grapple… Part lament, part call to arms, James Allan’s study of the ways checks and balances in our western democracies are being eroded. “Equality before the law,” the essential democratic principle is losing ground to minority rule.
How to rebuild our democracy? Knowing where the problems lie is helpful but discovering effective ways to solve these problems is easier said than done. Can’t be defensive, must first seize the high ground, the right to free speech, go on the attack, getting our coherent arguments out there loud and clear, arguing just how important it is that a nation’s democratic constitution be observed. Easier said than done, yes. But it’s gotta’ be done. – No blank cheque for judges to over-rule the democratic assembly whose role it is to make the laws.