Post by Viteu Marcianüs on Mar 13, 2018 15:24:43 GMT -6
Below is a short thesis that started out as a reply to GV's post, but I realized would be better as a stand along discussion. Also, as I'm wont to do, I wrote this on the fly so excuse typos and missing words.
For background, see GV's post and the draft org law (that is finally getting the attention it deserves).
A Short Thesis in Support of Bifurcation
(Sorry for the overuse of parentheticals. I don’t have the luxury of footnotes and it would be too cumbersome to manually put them in. I’ve tried italicized all non-sequitur or explanations appropriate for footnotes so you can jump over them. Emphasis are bold.)
This thesis, drafted quickly and without requisite citations, and in channeling the great debate that occurred between the federalist and anti-federalist when the US Constitution was drafted, argues in favor of bifurcation. If adopted, bifurcation would separate the Covenant of Rights and Freedoms from the Organic Law, recognizing both as constitutional acts but establishing the legal superiority of the Covenants over the Organic Law. This thesis argues that bifurcation is both consistent with already established Talossan tradition and not uncommon in other common-law jurisdictions.
To follow the argument put forth in favor of bifurcation, two presumptions are required to frame the conversation:
The first presumption - there are two two overarching schools of thought for legal authority that informs how legal theorist understand certain rights or laws (while others exist, they generally will fit into one of these two very broad and general categories; also please consider I’m trying to give broad definitions for what legal theorist far beyond my understanding and level of study have debated for centuries, so you’ll excuse if I’m a bit sloppy) – (1) legal positivism, or that we derive legal authority from some external source irrespective of ethics and morality (e.g., the common-law, a document, a treaty, an act of the legislature, etc.); and (2) natural law, or that there are certain universal truths that humanity accepts as true (e.g., internationally, this would be jus cogens; locally, this may be a regional natural right, like say in one region of the world, freedom of speech is considered a basic human right, or traditionally, the divine right of the King [considering my history, I feel it important to instruct the reader to understand that reference at face value and illustrative absent of any subtext to my well-known exception with the Talossan Crown]). For a broad observation, generally compare common-law jurisdictions (discussed more below) to canon law . Although certain systems are prone to favor one (either through design or practice), and it is common for individuals to assert one is true while the other is false, I favor the thought of trying to find the best of both (my fiery rhetoric aside, I’m, at heart, a pragmatist). For external reference and explanation, see: www.lawteacher.net/free-law-essays/common-law/natural-law-theory-legal-positivism-law-essays.php.
The second presumption – I submit that legal positivism is heavily favored in the common-law world (references available upon request). We generally require some recognized authority from which we derive the laws ability to exist. As discussed more below, the US derives its authority from its constitution, Canada from acts of the UK parliament that recognized its independence and right to self-governance under the 1982 Constitution Act, the UK through a collection of disparate acts that, for the better part, form the UK constitution, etc. (These countries are referenced for a reason which will become evident.)
Accepting the aforementioned presumptions, one asks: what does this all mean regarding the claim that bifurcation is consistent with Talossan tradition and other common-law jurisdictions? How does Talossan tradition already distinguish us from the US and places us more in line with Canada?
Before I answer those, indulge me on this point. In the United States, the US Constitution is considered the founding and defining document of the country. Taking the legal positivist approach, I find this to be a folly on two accounts – (1) the Declaration of Independence is the document in which the US affirmatively, and for the first time, established its right to self-governance separate from the British Empire; it is the first time (small ‘u’) the “united States of America” is referenced; and (2) the Treaty of Paris is the document from which the former recognized authority acknowledged that it no longer possessed the authority to govern the US, referencing (big ‘u’) the United States. As such, these two documents are the legal positivist source of authority in that they provide the paper trail of legal authority (one should recall that the British government, in order to punish the colonist prior to the Declaration, revoked the Massachusetts Colony’s Charter, thereby revoking its authority to rule). But the Declaration of Independence is different from the Treaty of Paris, it sets out certain principles that are, quite obviously, of the natural law mindset, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. Governments are instituted among men...” So now some US history, the first constitution was the Articles of Confederation (arguably a system that was a proto-EU structure), which failed, and then the US adopted its second constitution, the US Constitution. For any number of reasons, such as the seminal case of Marbury v Madison, which established judicial review, or to the “supreme Law of the Land” clause in art. VI § 2, the Constitution is seen as the highest document and source of all legal authority, although it is not the document defined and established the US’s right to exist. This is done irrespective of the bold referenced language above. But why is this a problem? Well, instead of the US allowing itself to be defined by the Declaration of Independence, the US has deified the Constitution to the point where to question the drafters means to question the United States itself. The US cannot even debate necessary fixes anymore or consider that maybe the document is antiquated because of its status as sacrosanct. This understanding has invaded how many US-based Talossans view the Organic Law. (I would wager that support for changing the Organic Law, provided it was done in a neutral way as to not favor one position in regards to the issue of the monarchy, but done to clean the document up and provide for better governance, finds greater support by non-US-based Talossans.)
In my mind, the obvious answer is to make the primary document that Talossans can unite behind the Covenant of Rights and Protections through bifurcation. This renders the Covenant the document that defines Talossa as a nation and protects the rights of her citizens. Its authority is both natural law based in that it recognized certain unalienable rights, and legal positivist in that it is the source from which we recognize the ability of the State to organize itself. It divorces deification of the State from deification of national identity. The issue of the monarchy and republic become secondary as Talossans have a simple document, silent on structure of the State, to reference and secure that the State is subject to the rule of law. I think this would be beneficial.
To address the question of consistency. In the United States, individual rights are found throughout the constitution but primarily in the Bill of Rights, composed of the first 10 Amendments of the US Constitution. Further, there are subsequent amendments that speak to individual rights (e.g., the 14th amendment). The Amendments do not function to inform how the rest of the Constitution should be interpreted in all regards. For example, an article I tribunal, such as a military court, deriving authority from art. I § 8 in two parts, does not need to respect the rights enumerated in the amendments (for the non-US audience; the military courts have jurisdiction over military personnel only). However, other article I tribunals, say an administrative agency, may be permissible under article I, but its decisions may be subject to the protections of, for example, the 14th Amendment. This illustrates that the provisions of the US Constitution need not always be interpreted in accordance with the individual rights enumerated elsewhere (I am not arguing there is not good reason for this; only stating what is). Even in the amendments themselves, it’s a matter of virtual physical placement. For instance, the 11th Amendment prevents individuals from suing the states. However, in keeping with the idea that when two statutes or otherwise equal provisions of law conflict, the most recent dominates, the 14th Amendment permits the Congress to abrogate the 11th Amendment’s sovereign immunity by passing legislation directly tied to the the 14th Amendment. So this becomes incredibly complex. But the basic take-away is that the individual rights enumerated throughout the US Constitution do not necessarily override other concerns or always inform State action. The provisions that speak to individual rights are equal to provisions that speak to issues of State structure.
Turning to Canada, for the legal positivist, Canada’s authority to self-governance derives from a collection of acts dating back to the 19th century and, through the Constitution Act of 1982, those acts, through patriation, were adopted as part of the Canadian Constitution. Recall that this acted reqiured the approval of the UK parliament. Thus, there’s clear authority. But note that Canada has not deified its constitution to the same degree the US has. They fought no war to assert it that authority. However, we can look at the Canadian Charter of Rights and Freedoms, which functions as the overarching protector of rights against government intrusion, and, in a manner of speaking, is superior to the other parts of the Canadian Constitution that speak to structures of state. This authority derives from § 32 of th Charter. But it means that all government actions are viewed through the lens of the Charter (I am not ignoring § 33, it just doe not impact my analysis). Hence, I would posit that many Canadians would view the Charter as the defining legal authority that informs how the State must act. But importantly, its relevance is that the government’s actions must conform with these rights as they define the national identity. Not to mention, although other acts were incorporated through patriation, they’re still (to the be st of my knowledge; I stand to be corrected) subordinate to the Charter. As it relates to the Covenant of Rights and Freedoms, Talossa has adopted this in Art. XVI § 5, in that “consistent” clause or the “difference in interpretation” clause. Further, we recognize their superior value by requiring a higher standard for amendments, as prescribed in Art. XV § 6. Finally, the preamble of the Covenants, the only section of the Org Law to have its own preamble, speaks to “preserving and enhancing the . . . good government”. Hence, the idea that we would have explicit protections distinguished and superior to the structure of the State, that requires all government action or State structure to be interpreted through their lens is already consistent with our current Organic Law and Talossan tradition, as well as found elsewhere in the common-law world. But in bifurcating the two, we allow ourselves to establish our national identity under terms that are agreeable and permit ourselves to argue about matters of State, its structure and action, without fear that we are tinkering with fundamental principles that speak to our national identity.
To conclude this short thesis, bifurcation would establish two constitutional documents: the Covenant of Rights and Freedoms and the Organic Law. The idea of disparate documents forming a larger constitution is consistent with common-law practices seen elsewhere. The idea that the Covenants are superior and overarching as to dictate how the State functions is consistent with our tradition. Further, bifurcation provides the obvious benefit of unifying Talossa as one people behind a common understanding of national identity divorced from one’s regards to State structure or means of Government action. It’s positivist in that it provides clear authority and its natural law in that it establishes the national identity recognizes certain inalienable rights. Bifurcation does not solve Talossa’s problems, but it seeks to envision them in terms that permit honest dialogue about governance and State structure irrespective of basic rights that we can all agree upon.
For background, see GV's post and the draft org law (that is finally getting the attention it deserves).
A Short Thesis in Support of Bifurcation
(Sorry for the overuse of parentheticals. I don’t have the luxury of footnotes and it would be too cumbersome to manually put them in. I’ve tried italicized all non-sequitur or explanations appropriate for footnotes so you can jump over them. Emphasis are bold.)
This thesis, drafted quickly and without requisite citations, and in channeling the great debate that occurred between the federalist and anti-federalist when the US Constitution was drafted, argues in favor of bifurcation. If adopted, bifurcation would separate the Covenant of Rights and Freedoms from the Organic Law, recognizing both as constitutional acts but establishing the legal superiority of the Covenants over the Organic Law. This thesis argues that bifurcation is both consistent with already established Talossan tradition and not uncommon in other common-law jurisdictions.
To follow the argument put forth in favor of bifurcation, two presumptions are required to frame the conversation:
The first presumption - there are two two overarching schools of thought for legal authority that informs how legal theorist understand certain rights or laws (while others exist, they generally will fit into one of these two very broad and general categories; also please consider I’m trying to give broad definitions for what legal theorist far beyond my understanding and level of study have debated for centuries, so you’ll excuse if I’m a bit sloppy) – (1) legal positivism, or that we derive legal authority from some external source irrespective of ethics and morality (e.g., the common-law, a document, a treaty, an act of the legislature, etc.); and (2) natural law, or that there are certain universal truths that humanity accepts as true (e.g., internationally, this would be jus cogens; locally, this may be a regional natural right, like say in one region of the world, freedom of speech is considered a basic human right, or traditionally, the divine right of the King [considering my history, I feel it important to instruct the reader to understand that reference at face value and illustrative absent of any subtext to my well-known exception with the Talossan Crown]). For a broad observation, generally compare common-law jurisdictions (discussed more below) to canon law . Although certain systems are prone to favor one (either through design or practice), and it is common for individuals to assert one is true while the other is false, I favor the thought of trying to find the best of both (my fiery rhetoric aside, I’m, at heart, a pragmatist). For external reference and explanation, see: www.lawteacher.net/free-law-essays/common-law/natural-law-theory-legal-positivism-law-essays.php.
The second presumption – I submit that legal positivism is heavily favored in the common-law world (references available upon request). We generally require some recognized authority from which we derive the laws ability to exist. As discussed more below, the US derives its authority from its constitution, Canada from acts of the UK parliament that recognized its independence and right to self-governance under the 1982 Constitution Act, the UK through a collection of disparate acts that, for the better part, form the UK constitution, etc. (These countries are referenced for a reason which will become evident.)
Accepting the aforementioned presumptions, one asks: what does this all mean regarding the claim that bifurcation is consistent with Talossan tradition and other common-law jurisdictions? How does Talossan tradition already distinguish us from the US and places us more in line with Canada?
Before I answer those, indulge me on this point. In the United States, the US Constitution is considered the founding and defining document of the country. Taking the legal positivist approach, I find this to be a folly on two accounts – (1) the Declaration of Independence is the document in which the US affirmatively, and for the first time, established its right to self-governance separate from the British Empire; it is the first time (small ‘u’) the “united States of America” is referenced; and (2) the Treaty of Paris is the document from which the former recognized authority acknowledged that it no longer possessed the authority to govern the US, referencing (big ‘u’) the United States. As such, these two documents are the legal positivist source of authority in that they provide the paper trail of legal authority (one should recall that the British government, in order to punish the colonist prior to the Declaration, revoked the Massachusetts Colony’s Charter, thereby revoking its authority to rule). But the Declaration of Independence is different from the Treaty of Paris, it sets out certain principles that are, quite obviously, of the natural law mindset, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. Governments are instituted among men...” So now some US history, the first constitution was the Articles of Confederation (arguably a system that was a proto-EU structure), which failed, and then the US adopted its second constitution, the US Constitution. For any number of reasons, such as the seminal case of Marbury v Madison, which established judicial review, or to the “supreme Law of the Land” clause in art. VI § 2, the Constitution is seen as the highest document and source of all legal authority, although it is not the document defined and established the US’s right to exist. This is done irrespective of the bold referenced language above. But why is this a problem? Well, instead of the US allowing itself to be defined by the Declaration of Independence, the US has deified the Constitution to the point where to question the drafters means to question the United States itself. The US cannot even debate necessary fixes anymore or consider that maybe the document is antiquated because of its status as sacrosanct. This understanding has invaded how many US-based Talossans view the Organic Law. (I would wager that support for changing the Organic Law, provided it was done in a neutral way as to not favor one position in regards to the issue of the monarchy, but done to clean the document up and provide for better governance, finds greater support by non-US-based Talossans.)
In my mind, the obvious answer is to make the primary document that Talossans can unite behind the Covenant of Rights and Protections through bifurcation. This renders the Covenant the document that defines Talossa as a nation and protects the rights of her citizens. Its authority is both natural law based in that it recognized certain unalienable rights, and legal positivist in that it is the source from which we recognize the ability of the State to organize itself. It divorces deification of the State from deification of national identity. The issue of the monarchy and republic become secondary as Talossans have a simple document, silent on structure of the State, to reference and secure that the State is subject to the rule of law. I think this would be beneficial.
To address the question of consistency. In the United States, individual rights are found throughout the constitution but primarily in the Bill of Rights, composed of the first 10 Amendments of the US Constitution. Further, there are subsequent amendments that speak to individual rights (e.g., the 14th amendment). The Amendments do not function to inform how the rest of the Constitution should be interpreted in all regards. For example, an article I tribunal, such as a military court, deriving authority from art. I § 8 in two parts, does not need to respect the rights enumerated in the amendments (for the non-US audience; the military courts have jurisdiction over military personnel only). However, other article I tribunals, say an administrative agency, may be permissible under article I, but its decisions may be subject to the protections of, for example, the 14th Amendment. This illustrates that the provisions of the US Constitution need not always be interpreted in accordance with the individual rights enumerated elsewhere (I am not arguing there is not good reason for this; only stating what is). Even in the amendments themselves, it’s a matter of virtual physical placement. For instance, the 11th Amendment prevents individuals from suing the states. However, in keeping with the idea that when two statutes or otherwise equal provisions of law conflict, the most recent dominates, the 14th Amendment permits the Congress to abrogate the 11th Amendment’s sovereign immunity by passing legislation directly tied to the the 14th Amendment. So this becomes incredibly complex. But the basic take-away is that the individual rights enumerated throughout the US Constitution do not necessarily override other concerns or always inform State action. The provisions that speak to individual rights are equal to provisions that speak to issues of State structure.
Turning to Canada, for the legal positivist, Canada’s authority to self-governance derives from a collection of acts dating back to the 19th century and, through the Constitution Act of 1982, those acts, through patriation, were adopted as part of the Canadian Constitution. Recall that this acted reqiured the approval of the UK parliament. Thus, there’s clear authority. But note that Canada has not deified its constitution to the same degree the US has. They fought no war to assert it that authority. However, we can look at the Canadian Charter of Rights and Freedoms, which functions as the overarching protector of rights against government intrusion, and, in a manner of speaking, is superior to the other parts of the Canadian Constitution that speak to structures of state. This authority derives from § 32 of th Charter. But it means that all government actions are viewed through the lens of the Charter (I am not ignoring § 33, it just doe not impact my analysis). Hence, I would posit that many Canadians would view the Charter as the defining legal authority that informs how the State must act. But importantly, its relevance is that the government’s actions must conform with these rights as they define the national identity. Not to mention, although other acts were incorporated through patriation, they’re still (to the be st of my knowledge; I stand to be corrected) subordinate to the Charter. As it relates to the Covenant of Rights and Freedoms, Talossa has adopted this in Art. XVI § 5, in that “consistent” clause or the “difference in interpretation” clause. Further, we recognize their superior value by requiring a higher standard for amendments, as prescribed in Art. XV § 6. Finally, the preamble of the Covenants, the only section of the Org Law to have its own preamble, speaks to “preserving and enhancing the . . . good government”. Hence, the idea that we would have explicit protections distinguished and superior to the structure of the State, that requires all government action or State structure to be interpreted through their lens is already consistent with our current Organic Law and Talossan tradition, as well as found elsewhere in the common-law world. But in bifurcating the two, we allow ourselves to establish our national identity under terms that are agreeable and permit ourselves to argue about matters of State, its structure and action, without fear that we are tinkering with fundamental principles that speak to our national identity.
To conclude this short thesis, bifurcation would establish two constitutional documents: the Covenant of Rights and Freedoms and the Organic Law. The idea of disparate documents forming a larger constitution is consistent with common-law practices seen elsewhere. The idea that the Covenants are superior and overarching as to dictate how the State functions is consistent with our tradition. Further, bifurcation provides the obvious benefit of unifying Talossa as one people behind a common understanding of national identity divorced from one’s regards to State structure or means of Government action. It’s positivist in that it provides clear authority and its natural law in that it establishes the national identity recognizes certain inalienable rights. Bifurcation does not solve Talossa’s problems, but it seeks to envision them in terms that permit honest dialogue about governance and State structure irrespective of basic rights that we can all agree upon.