In the run-up to the EU referendum there was a widespread conspiracy theory that
the establishment is not above fixing the vote to thwart the democratic will of the electorate.
The run up to the referendum has seen the rise of the hashtag #usepens which urges people to reject the traditional pencils supplied at polling stations and instead use a pen to mark their cross on the voting paper. The thinking behind this is that it will then be impossible for some unknown hand to use an eraser to rub out your cross and make another mark in the other box.
Pathetic delusions. The elite have much more sophisticated methods than that:
Boss of property website Zoopla revealed to be behind Brexit legal action bid.
I suppose that one should not be surprised that people who saw nothing wrong with the EU’s favourite strategies of ignoring inconvenient popular votes or having referenda repeated until the (almost invariably less well-funded) opposition is worn down see nothing wrong with these views:
- We need a second referendum. The consequences of Brexit are too grave – David Lammy MP
- How to stop Brexit: get your MP to vote it down – Geoffrey Robertson QC
- Forget the politics – Brexit may be unlawful – Philip Allott, Professor Emeritus of International Public Law at Cambridge University
- A second EU referendum could pull us out of the fire. Let’s make it happen – Geraint Davies MP
- Letter to all 650 MPs urging Parliament not to support a motion to trigger Article 50 of the Lisbon Treaty – Professor A C Grayling, New College of the Humanities
- How can a close referendum result be sacrosanct when the electorate were deliberately misled on the consequences? – Peter Sutherland, UN Special Representative for International Migration and former EU Commissioner.
This leaflet, Why the Government believes that voting to remain in the European Union is the best decision for the UK, was sent by the Government to every household in the UK some weeks before the referendum. On page 14 it says,
This is your decision. The Government will implement what you decide.
An oft-repeated argument of those who seek to use a procedural trick to overturn the result is that the Leave campaign won as a result of ignorant tabloid-readers believing lies. If it turns out that the biggest lie of all was that the votes of the common folk would count equal to the votes of the quality, expect trouble.
As I have pointed out, General Pinochet called a referendum on his rule in Chile in 1988, he lost and respected the outcome.
Anyone calling for Brexit to not happen, or a second referendum, has less respect for the popular vote than General Pinochet showed.
Were that to happen and the BREXIT result simply overturned, and I do not think it will be, the state simply loses all legitimacy with half the population. The date stops being 2016 and becomes 1642. I for one will start posting molotov cocktail recipes on samizdata as well as ways to make IEDs out of things you can buy in Waitrose, right up until the Plod kicks my door down and arrests me.
I do not think it will come to that.
Perry,
I would not be in that market Perry, but would there be a range of Duchy IEDs?
Well you could certainly assemble IEDs from Duchy products, if you knew how, money was no object, and you preferred your weapons to be free range and organic 😉
Democracy exists to prevent civil wars. Some people seem to have forgotten that (assuming they ever knew).
Agreed Mr Ed.
As for conspiracy theories – sometimes they are true, but normally just bad ideas (beliefs) leading to bad policy (and stupid accidents) are the cause of most problems.
Well, yes, up to a point.
1. If Zoopla think their interests may be harmed by the government acting unlawfully then they have every right to take the government to court.
2. Libertarians are not extreme majority-rulers. “If THAT’s what the people want, they can’t have it” is perfectly respectable libertarian (and Tory) dinner table talk. Let us not sanctify democracy.
Indeed it is the second point that is most helpful here. Those who for years have insisted that this or that be made “more democratic” and who have sanctified democracy-as-an-end-not-a-means are revealed in their true colours – doughty defenders of democracy, when the people get it right, and not if not. I hope someone is assiduously collecting their quotes for the next time they come up with the “we must ban this because of the popular will.”
For what i’s worth, I think Farage should have delayed his resignation until the outcome of the Tory leadership election is clear. He hasn’t won yet.
In private organisations there is seldom much need for formal votes. In my role at work I am a member of a few committees. Votes are held, but quite often the votes are unanimous, possibly with a few abstentions. In civilised company, rule by consensus is highly valued, and this should be a good model for democracy. Frankly, if a proposal cannot pass by more than 51% it seems quite likely that it is not a good proposal. Politics is a zero sum game. Politicians need their ‘colleagues’ to lose in order for them to win. In order to play their game they raise the stakes to a level which the people themselves would not let it rise.
Term limits (one term only), 60% to pass a law, 40% to revoke one. Parliament supreme with no ability to delegate power (e.g. to EU). That should do nicely.
I doubt anyone here disagrees with that as Samizdata is hardly a hotbed of democracy fetishists. I for one understand its strengths and limits and subscribe to the Guy Herbert school of thought: “Democracy makes a good brake but a terrible steering wheel”. The BREXIT vote was just using democracy for exactly what it’s actually good for: applying the brake rather forcefully by exiting the EU.
Lee Moore, all those I have quoted have the right to do or say what they do. I’ll keep defending their rights to launch a legal action or to free speech even when they complete their political journey to supporting Plato’s rule of the philosopher kings. But they still deserve to be called out as men who attempt to go back on a deal that was acceptable to them when they thought they would get the better of it.
It’s certainly true as well that any libertarian worth their salt should defend the rights of minorities or individuals against the majority. But in no way is it an inalienable human right for one’s nation to forever belong to a supranational organisation.
I agree with your second point.
I suspect that we are seeing the outline of the establishment plan to thwart Brexit. Step 1, get lots of lawyers and “experts” to claim that the only legitimate way to leave the EU is through a vote in the House of Commons. Step 2, the party leaders collaborate to ensure that a majority of MPs will vote against it. Step 3, the Prime Minister tells the public “very sorry, we did try but unfortunately it wasn’t possible so we have to remain in the EU”. The only way to deter them is to point out as loudly and frequently as possible that we can see what they’re doing and that tens of millions of people will never forgive them if they go through with it. But I’m not just talking about the 17 million who voted for Brexit, because many people who voted “remain” or who didn’t vote at all would still be outraged to discover that the whole thing was a charade all along. MPs need to realise that such a blatant display of contempt for public opinion would have worse consequences than even a completely bungled Brexit.
There’s an article in the Graun by a chap called Paul Mason agreeing with the general tone here that the last ditch Remainers are not doing their credibility much good by coming out in their true colours. But I particularly liked a line from his piece :
I know why the official remain camp failed: because its fear narrative “jumped the shark” of credibility.
which I think is spot on. Osborne’s emergency Budget scare was SOOOO ludicrous that it will have registered even on the half awake sheeple as a “WOLF” announced once too often. Which is why I have this tiny nagging doubt about whether Osborne should be awarded the George Cross and a Earldom. Was he really a Leave double agent destroying his career for the common good ?
[I’ve taken the liberty of adding a link to the article by Paul Mason, Economics Editor for Channel 4 News, referred to above. – NS]
I’m curious, are any of the people who are no saying that leaving requires a vote in the Parliament objected to having a referendum in the first place?
I imagine Natalie is as unsurprised as I am that the urbane bigot Grayling is amongst the usual suspects doing the usual suspicious things.
However I am more interested in the absence of some of the usual suspects from this cause. The BBC’s television news coverage, and even their background graphic, seem to treat the UK’s leaving the EU as fact. Junker demands we get on with it; for once, “make them vote again” is not being ordered. And I see where they are coming from. The more honest remainers – there are plenty – appreciate the duty to respect the vote. The more level-headed remainers can see the very considerable political dangers of not doing so, some of them very immediate dangers. How many Labourites want their party to face an election this year? How many Tories would want their party to undergo an election this year under a remain leader? Outside the “let’s pretend it never happened” group, are there many who would give any but the longest odds that parliament could defy the result and avoid an immediate election? (In his resignation message, Nigel Farage speculates that, were there any government backsliding then, with Labour disconnected from many of its voters, UKIPs great days could yet lie ahead. I don’t think him foolish to say that.)
I think the “let’s pretend it never happened” people will more likely end like those left-wingers in 1979-81 who spoke of getting the Thatcher government out “as soon as possible”, a code phrase that deceived noone and never achieved anything except to give Maggie more legitimacy. I think Cameron’s prediction after the vote – that the new Tory leader will be a Leaver initiating article 50 before the end of the quarter – will prove true. The future is unknown – don’t we all know that after the last two weeks 🙂 – but that’s the most likely outcome IMHO.
60% to pass a law, 40% to revoke one. Parliament supreme with no ability to delegate power (e.g. to EU). That should do nicely
I think this is a mistake, but it’s on the right lines. It should be harder to pass a law than to repeal it…..so long as we are talking about a liberty restricting law. Imagine :
Law A : “Thou shalt not own a firearm” and
Law B : “Law A does not apply to a person over the age of 21, who intends to use the firearm for sporting or agricultural purposes, and who has been granted a licence to own a firearm.”
Making it hard to pass a law makes it hard to pass Law B after Law A is in effect. And making it easy to repeal laws makes it just as easy to repeal Law B as to repeal Law A. What is required is a system that discriminates between laws according to their content – whether they are imposing restrictions on liberty, or reducing such restrictions. Of course most laws are written combining Laws A and B, so that a single Act contains restrictions on liberty and also limitations on those restrictions.
So my system would be something along the lines of :
1. Elect the House of Lords by PR, keeping the HoC FPTP
2. Provide a definition of a liberty-restricting Act, effectively as any law that involves a restriction in anyone’s liberty
3. Require liberty restricting Acts to be passed by both Houses before they can become law
4. Allow either House to pass any other kind of Act by itself
4 would allow either House to repeal nasty liberty chewing laws, or any offending part of a mixed up law. My particular system is not important – the key thing is to discriminate, for the ease of passing and repealing laws, between liberty- restricting laws and other ones.
(Incidentally a very similar point applies to the Commerce Clause in the US. They should have written it so as to give Congress the power to DE-regulate commerce, not regulate it.)
Alisa – I can’t be bothered to hunt up quotes, but I would be pretty confident that quite a few Remainers publicly opposed a referendum beforehand. Clarke and Heseltine wouldn’t surprise me at all. I certainly recall Ken Clarke being opposed to a referendum on the Lisbon treaty. It’s not that they love Parliamentary sovereignty – after all the whole point of the EU is to take power from Parliament and give it to Brussels – it’s simply that when you’re winning, and you have a large pro-EU majority in Parliament, why would you ever want a referendum ? The referendum was promised, against the wishes of the keenest EU types, because Cameron thought it would save enough Tory votes from UKIP to get him re-elected, and he was right. It was certainly not promised because the pro EU types thought that the people should be allowed their say. God forbid !
I would not be in that market Perry, but would there be a range of Duchy IEDs?
Do you pass them on the left hand side?
Those who are keen to dismiss the will of the demos might do well to consider what it might mean to lie outwith the demos.
By way of example, as our celebrations wind down (yes, it’s early here, but we’re old) SWMBO is watching a zombie movie, in which doctors have declared themselves a superior class, with access to cures not permitted to the hoi palloi.
It does not take much imagination to envision a world in which, after such a betrayal, doctors become accustomed to performing their duties while naked from the waist down and standing on one foot. Because the only way anybody would trust them again would be if a trusted friend had the muzzle of a shotgun shoved up their arse.
Frankly, if a proposal cannot pass by more than 51% it seems quite likely that it is not a good proposal.
So a proposal (to remain in the EU) which gets 49% is therefore a better option?
Would it be overly cheeky to wish you a happy 4th of July? Happy independence day. Welcome to the party! 😀
Thank you MadRocketSci, but having made our declaration, we’re hoping we won’t have to go to the trouble of a shooting war to ram the point home.
(Sorry about that, last time, by the way. And I still think y’all got the Commerce Clause wrong.)
“And I still think y’all got the Commerce Clause wrong.”
Well, Lee, that depends upon your definition of “wrong”. Your suggestion that it should be to de-regulate commerce was in fact the original intent, and it was so interpreted by the Supreme Court until that bastard Roosevelt scared them all into submission. The original meaning of “regulate” was to “make regular”, i.e., to ensure that all the states treated commerce from all other states equally as compared with their own. It wasn’t until the 1930s that the word was reinterpreted into the universal justification for federal control which it has now become. The Framers got it right; the Charles Evans Hughes (and subsequent Courts) are the ones who got it wrong.
This: Mishcon’s proposed challenge is devoid of all legal merit. As a matter of law, giving of notification under Article 50 of the Treaty on European Union is a matter of Crown prerogative. No Act or other parliamentary approval is required before this is done. In the European Union Act 2011, Parliament has chosen to require parliamentary approval before ministers are allowed to take certain actions under the European treaties, but notably has not extended any such restrictions to Article 50. Any argument that there is an implied restriction is therefore quite hopeless.
As a matter of constitutional and political authority, the decision of the British people in a national referendum authorised by Act of Parliament not merely permits but mandates the giving of notice, without the need for any vote by Parliament. It is deeply objectionable but sadly not unexpected that those who suffer from a deep-rooted contempt for democracy should resort to legal antics of this kind in an attempt to frustrate the democratic decision of the British people.”
Martin Howe QC
Chairman
Lawyers for Britain
I went to a really beastly minor English public school, wherein we who regarded ourselves as part of the solution (rather than as part of the precipitate) always comforted ourselves with this thought:
If they won’t let you leave, you can always get yourself expelled.
The detailing of this concept being left as an exercise for the student.
Excellent plan, Catherine.
Didn’t the British EU Commissioner just resign in a fit of pique at the Great Unwashed ? I should think nominating the now less busy Nige to replace him should do the trick.
Lee,
I think I prefer my model. Simplicity is better and underlying my approach is the premise that laws are more likely than not to be liberty restricting. So the approach to modifying a bad law is to remove it and start again, not to pass a law to improve the existing law.
Twisting language to make ‘liberty’ mean what the user wants it to mean is much easier than getting around process.
Chester,
That was not the point (which was general and not in relation to the EU referendum). A high quality proposal should be able to garner 75% of votes or something. Clearly, this assumes that the status quo is acceptable. In most cases it will be, as people have adapted to it. Given status quo bias, radical changes would be unlikely to be passed. For example, I think a vote to stay in the EEA but leave the EU could have won by a considerably greater margin, as there are no good arguments against this, and it is a less radical change than leaving the single market.
Politicians are not simple folk, Peter. You are forgetting the puppies. When you want to pass an unpleasant law, and you have the votes for it, the law you pass will not be of the form :
“The firstborn will be slain”
It will be of the form
“(1) the firstborn will be slain
(2) the puppies will be fed”
embedding the puppies in the law makes it politically impossible to repeal the law. It is basic strategy to try to embed your favoured laws by making them difficult to repeal. This is after all the EUrophiles’ basic tactic – wind EU directives into a domestic law with other bits in so that it’s a huge tangle to unravel.
You need a system that allows you to save the puppies while repealing the slaughter of the firstborn. Which means you have to be able to repeal bits of laws not just a whole law.
Thanks, Lee. The reason I was curious was just to get an idea how consistent any of them were with regard to the very idea of democracy.
@Peter T: “Clearly, this assumes that the status quo is acceptable”
In this case, one must remember, the status quo was not on offer.
The EU will continue to change, in more and more ways that we don’t like, with fewer and fewer democratic controls, and increasingly with no controls that we can influence in any way. Eventually it will arrive at a destination we have never wanted, and do not wish to be part of.
This is one reason why so many people said “Enough – we’re outta here”.
Perry, I see a 40% chance that Brexit will not happen despite the referendum, given the political aftershocks of one prominent leader after another.
The spin is coming hard and fast from the anti-Brexiters on social media. I don’t see a lot of counter-attacks from the pro faction. This may very well have the effect of demoralising Brexiters and convincing them that going against the anti-faction will cost them their social networks and in the worse case, perhaps even their jobs.
And losing the battle in the social media… it’s like air superiority – it’s not the end all and be all, but it makes the ground fight a lot more unbalanced.
Wobbly guy,
I doubt social media spin is that important to anyone other than those interested. I am not intimidated by what my friends are saying, but I do not feel like breaking their cycle of grief at the moment (they should know how I voted, but I doubt they would be happy for to point out they are being undemocratic). Social media is not a reflection of reality but an expression of feelings that can in cases like this be catharic; it might mislead a few people around what opinions are but after two miscalled elections and a miscalled referendum it should be clear social media does not actually carry predictive powers because those using it are atypical.
Plus unless people get banned from social media, silence is not losing a war. We can all speak up if we need to do so, but so far there is no reason to do so – the petition and the legal challenges, and the wierd assertion of parlimentary supremacy, are all grasping at straws. If the noise makes people think these have a chance, that is unfortunate.
The case could be made in the opposite direction too, that due to remain only getting 48% it’s not a good proposal to stay.
That is why I am proposing 40% to repeal a law. Happy for that to be extended to repealing part of a law (“line item veto”).
My point is not about the EU referendum so I am not sure why you need to quote my line in order to make your point.
I see there’s a certain amount of huffing in Remainer circles that Leadsom might be a wee bit too sympathetic to UKIP. I’m struggling to see the horror in this, I have to say.
1. The electorate has just endorsed UKIP’s main policy, indeed its raison d’etre, and all the Tory leadership candidates have said they will proceed to implement it
2. If being cosy with another party is a serious problem, how come the Tories just spent 5 years in coalition with the Lib Dems ?
I can quite understand that some of the lefter Tories feel closer to the Lib Dems than they do to UKIP, but it’s hard to see why they should expect everyone else to feel the same way. I sense that we’re edging towards the traditional form of Tory unity – you right wingers must unite around what we say, cos we’re certainly not going to unite around what you say.
As to the difficulty of repealing laws containing both good and bad parts (for whatever values of “good” and “bad”): That’s why what we call “omnibus bills” are so dreadful. Should definitely be one bill per very narrow topic.
Like everything, as stated this would sometimes have problems. That would get us into “severability,” so let laws requiring them be broken out into separate statements. In that way “(a) Slay the firstborn” could be repealed without repealing “(b) feed the puppies” — although, depending on the family, one might wish to repeal (b) and keep (a) /sarc.
. . .
Laird, to more-or-less lift your own words in another discussion, that’s the best explanation of “to make regular” I’ve ever seen. Mostly the explanations either aren’t, or else they seem to me circular.
Oddly enough, this is one place where it might help, slightly, if the modern misuse of the word “between” were generally substituted for “among”: “Commerce between the several states.” It seems to me that to the 20th-21st-century ear, “between” has a bit of a connotation of separateness, whereas “among” has a connotation of inclusion in the sense of “togetherness,” or de-emphasis of the notion or the fact of separateness.
Of course I would squawk like a stuck pig (if they “squawk”) if the incorrect substitution were made, unless accompanied by the explanation for it, which no one would sit still to hear anyway. :>( Nevertheless, there it is.
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The other difficulty with the Commerce Clause is with the word “commerce,” which today has at least a connotation that is much broader than the founding-era’s understanding of the word.
So while it did narrowly restrict the Federal Government in its endeavors to “make regular,” to our ear it doesn’t seem entirely out of order to call any activity whose end is to accomplish a sale, “commercial” activity. From there, to apply the umbrella term of “commerce” to the activity itself for purposes of either meddling or taxation is easier to pass off as legit — even when, for instance, the activity is the manufacture of bridges or works of art with intent to sell.
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These analyses of “original meaning” show one of the many difficulties caused by the inevitable shift of usage in language, and one reason why despite the inevitability of these changes, we ought to resist them as stoutly as we can. (That doesn’t mean denying growth and richness to our language, as new coinages — like the godawful-ugly “blog” — and borrowings from other languages are infinitely available.)
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Following on from this, “original public meaning” is a whole lot more problematic than those who rely on it for interpretation of the Constitution seem willing to allow. However, that really would be dragging the discussion too far afield, so I will return to my seat now.
Julie, I love analyzing words and their meanings as much as the next person, and probably more so. But, it seems to me, to think that the problem with the US Constitution and its interpretation is the actual words is to ignore the elephant in the room: that the actual problem is the interpreters – by which I mean politicians and the judges doing their bidding (which they inevitably do). No words are safe from these people, no matter how self-explanatory and straightforward they may seem to a regular person.
Alisa,
As I see it, anyone who engages in verbalizing about any topic whatsoever, whether speaking aloud, writing for others to read, or just thinking his own thoughts in his own head, needs to be clear about the meaning of the words he uses, and about the meaning that others will likely take from his words; as well as being clear as possible about what others mean by their words that he hears or reads, so as to try to understand their meaning as close to accurately as possible.
Some Samizdatistas are lawyers of some stripe; it’s important in our discourse here to use words accurately and to try to understand the meanings and use and misuse of words that Samizdatistas write. For they necessarily interpret the laws, whether as attorneys, as judges, or as teachers.
We cannot blame the judges alone for misconstruing important words, phrases, sentences when the culture at large is unimpressed with the importance of getting the words right. After all, their tendencies toward careful or careless use of words is certainly influenced by the culture. Everybody on Our Side of things understands that the tendency of modern philosophy to hold “Nothing means anything [in particular]” as the meta-principle which underlies the entire field of philosophy has had disastrous results.
The same goes for the use of language.
My point is that we would do a better job of getting the Const. right if various important words in it had not come to have somewhat (at least) different meanings over the centuries between 1789 and now. Surely that’s incontrovertible? I mean, if in today’s common parlance “regulate” still meant what it meant then (as Laird explains so clearly and concisely) and “commerce” were still limited to the concept it denoted, and connoted, in 1789, there would be no issues of interpretation in reading the Commerce Clause.
. . .
That’s not to say I entirely disagree with what you write, as you’ve written it.
In fact, there is another huge problem, which can only be fixed by education — and then only partly.
Namely, that what seems straightforward and obvious to you and me and others of the lay public, “what is seen and what is unseen” is a problem in thinking about issues and alternatives regardless of the field: politics, economics, the painting of pictures … the cost in money of doing the dishes (in any given case) by hand or in the dishwasher.
An obvious example: the 2nd Amendment, which supposedly guarantees that “the right of the people to keep and bear arms shall not be infringed.” Leaving the reference to the Militia out of it, the thing seems to say that the Federal Government (which is supposedly the chief body bound by the Const.) has no power to place any limit on who shall own or carry weapons.
But wait. Is Joe Blow right in thinking that “arms” means pretty much any sort of firing weapon? If so, then JB has an absolute right to keep ICBM’s with nuclear warheads on hand, just in case. (Even if he’s just been released from the pen on a second-degree murder rap, which is the best the prosecution could do despite the fact that everyone knows perfectly well that he’s a terrorist responsible already for nuking the Kremlin. What you “know” and what you can “prove” are not always the same.)
In fact, what about lances and swords and daggers and knives and fists? Crossbows? Nunchuks? Bolos? Boomerangs? Are or are not those “arms”? They all certainly served as such in the days before devices for the forceful delivery of projectiles by means of an explosion.
And “bear.” The right to “bear” also “shall not be infringed.” To the layman like me, this obviously means “carry.” Well, you can’t carry Big Bertha. Yet in what we Provincials still often call the Revolutionary War, there were private ships bearing (carrying) cannons which took part in the war, and I understand that such “military weapons” were still acceptable as part of an individual’s arsenal in 1789.
Then there’s “infringed.” To some people, “infringement” is only applicable if there is virtually a complete ban on keeping or bearing “arms,” whatever those are. To others, if the government concerns itself with the issue of personal weaponry at all, the RKBA has been “infringed.”
So the “plain meaning” is very often not so plain, and no matter what the wording it likely raises legitimate questions. Probably most of us on this board are in broad agreement as to the meaning of the terms, but not in complete agreement by a long shot.
Then there’s the famous First Amendment, which guarantees that Congress, at least, shall make no law “abridging the freedom of speech, or of the press;”
Surely that’s clear. There can’t be a federal law against saying what you please when you please. Since neither “Piss Christ” nor desecration of the flag is speech, neither is protected by the First. Since material not presented as printing upon some receptive surface can possibly be said to proceed from a [printing] press, is prohibiting it an abridgement of “the freedom … of the press”?
Again, people have different opinions about where to draw what lines in interpreting the First Amendments.
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So what is evident on its face to Joe Blow likely needs a whole chain of inquiries to see whether Joe has it right. (And it will always be thus.)
And what is evident on its face to Joe Blow is quite often exactly the opposite of what is evident on its face to J.Q. Public.
“Plain meaning” very often is plain, as long as one restricts oneself to the core and does not think to consider what happens as one moves away from it.
. . .
Words are shifty things. We are careless in using them, at our peril.
In Liverpool today in a law court, I heard 3 men, 2 security, 1 maintenance, (i.e. blue collar) discussing their concerns that the Leave vote would be ignored. Two were convinced that Article 50 would not be triggered, one was rather concerned that it wouldn’t.
They agreed that the TTIP was a stitch-up by multinationals.