Friday, October 28, 2005

Reflections on the Legislation

Potted history of "separation of powers" and "due process"

Magna Carta, 1215, England - "the first step in a long historical process leading to the rule of constitutional law."

The Fifth Amendment to the United States Constitution (1791):
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001)

Australia has no Bill of Rights, although the High Court has held that there are some protections implied by the structure of the Constitution. Aside from these, the Parliament can legislate in disregard of rights like those protected by the United States Bill of Rights.

Exceptional times?

Whiskey bar has put together a series of excerpts on the rule of law, torture and the institutionalization of arbitrary justice. The comparison suggested there between current events and the suspension of constitutional rights in Germany, 1933 is interesting not because we need to apply fundamentalist categories ("evil", "crazy") to our current representatives, as is so often done with Adolf Hitler, but because--soberly judged--the tendencies evinced by the current legislation are similar to those that operated in Wiemar-era Germany. (Do we need reminding that Hitler was popularly elected, or that Singapore's People's Action Party has been directing an authoritarian regime since 1965 with overwhelming support at the polls?) The current legislation makes the Nazis look like "pioneers ahead of their time", albeit crude ones. Now that we are on the whole more cynical, the party (or parties?) of order has needed to become more sophisticated. --mh

A little song, of Operational Information

Though now 'tis Spring, and my denizen Fibres call
in Humour seasonish "From thine to be unpent!" -
be warned, nathless may I thee vanish from my Heart,
without a Trace. In Times as troubled Ours, the Part
of Love must cede its Nature-given Liberty
to changéd Laws, and Powers of Emergency.
While sweet the Sigh and tender Moan thy Lips let fall,
sweeter the Token, more misused to stir Dissent
among those subject to my inner Government:
So let us love top-secretly, or not at all.


Alexis de Tocqueville, `Democracy in America' (1833)

In 1831 Tocqueville travelled from the France of the July Monarchy to the USA. His observations precipitated a wealth of incisive reflection, set down in his seminal text on democracy, which seem strikingly apposite to our question. In the following passage he considers a "novel despotism" peculiar to democracies:

"The first thing that strikes the observation is an innumerable multitude of men all equal and alike, incessantly endeavoring to procure the petty and paltry pleasures with which they glut their lives. Each of them, living apart, is as a stranger to the fate of all the rest – his children and his private friends constitute to him the whole of mankind; as for the rest of his fellow-citizens, he is close to them, but he sees them not – he touches them, but he feels them not; he exists but in himself and for himself alone; and if his kindred still remain to him, he may be said at any rate to have lost his country.

"Above this race of men stands an immense and tutelary power, which takes upon itself alone to secure their gratifications, and to watch over their fate. That power is absolute, minute, regular, provident, and mild. It would be like the authority of a parent, if, like that authority, its object was to prepare men for manhood; but it seeks on the contrary to keep them in perpetual childhood: it is well content that the people should rejoice, provided they think of nothing but rejoicing. For their happiness such a government willingly labors, but it chooses to be the sole agent and the only arbiter of that happiness: it provides for their security, foresees and supplies their necessities, facilitates their pleasures, manages their principal concerns, directs their industry, regulates the descent of property, and subdivides their inheritances – what remains, but to spare them all the care of thinking and all the trouble of living?

"Thus it every day renders the exercise of the free agency of man less useful and less frequent; it circumscribes the will within a narrower range, and gradually robs a man of all the uses of himself. The principle of equality has prepared men for these things: it has predisposed men to endure them, and oftentimes to look on them as benefits." -- From Book Four – Chapter VI: What Sort Of Despotism Democratic Nations Have To Fear


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