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Thoughts on Power in Constitutional Politics - The Life and Thoughts of Zach

Dec. 6th, 2003

12:27 am - Thoughts on Power in Constitutional Politics

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This is my response to a discussion about how Judicial Review (the Supreme Court's power to declare laws unconstitutional) is something the Supreme Court granted to itself rather than something from the Constitution. People started discussing how governments where the highest court doesn't have Judicial Review get along and someone suggested that constitutions in those countries are basically toothless laws with no special status.

Well really, keep in mind that in some sense judicial review is a toothless recommendation. The courts don't control the budget or the military -- who is supposed to enforce their decrees? It is only because politicians and voters politically accept the supremacy of the supreme court's judicial review, even when they disagree with it, that the system works at all. That a majority of people could pass a law and then say "oh ok, I guess we can live without that law because it isn't constitutional, we hadn't realized that" is pretty impressive. If you think about this a bit you realize why the SC rarely takes a radical stance, even when maybe some reading of the constitution requires it...and when they do it tends to lead to some pretty massive political upheaval and rumbling among the states and use of the national guard (cf civil rights era stuff) which is why anytmie they DO make a radical stance it is because there is a huge movement calling for that stance so they know there is political support to fight the inevitable battle this will cause.

The whole system relies on the people basically believing that the system is a good one. If there is no faith in the system then who is going to care what 9 powerless judges have to say? All of the scenarios that Peil outlined (e.g. cessation, crisis, no confidence, etc) are still possible, JR is just a stop gap tool we've tacitly accepted to avoid them (much as the constitution is a stop gap tool we've tacitly accepted to avoid unstructured playgroun bully chaos -- at any time some minority entity with huge strength could just stop following the rules (e.g. military coup) but generally they don't because they think the rules are better than no rules at all).

(And of course when I imply that the government generally listens to the SC and acts only constitutionally and that powerful entities (large corporations, the current administration) generally don't do unlawful things....I am setting aside my entire world view for the sake of a discussion about abstract idealized liberalism.)
Later I posted this followup:
Well my point is that the only real teeth are votes, money, and guns. The supreme court doesn't directly control any of these but they help mediate between the folks who do have them or might otherwise go get them but at any time those folks who have enough money, guns, or votes could decide not to submit to the mediation.

Ultimately this is why (besides the goodness of our liberal hearts) we accept the idea of minority rights, because even a minority can get some guns or money (or a sympathetic coalition majority of votes) together and push people around if you don't treat them right.
There's nothing particularly significant about these words, I'm not trying to make any particular point. It's just something that I wrote in a discussion elsewhere that I wanted to share here.

Current Mood: liberal

Comments:

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From:boannan
Date:December 6th, 2003 01:32 pm (UTC)
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This seems to me like an elaborate version of a might makes right argument. On one level, it makes a lot of sense -- people just kind of have a gentleman's agreement to acquiesce to the power of the judicial branch, even though they don't have an army.

But I think if you're going to make the argument that the only teeth are guns, money and votes based on the above theory, you've got to take votes and money out of the equation. Votes only amount to teeth because we acquiesce to a system where votes are duly counted and respected. It doesn't have to be that way. Money only amounts to teeth because we acquiesce to a system where it's the major item that we assign value to and exchange for products that we need. A real barter system (the type of thing that went on at the Convergence Center, from what I've read) would take the teeth out of money. It's much harder to argue that you can take the teeth out of guns, and I think that's where you get back to the pure form of "might makes right."

So yeah, I think this is a fair critique of the Supreme Court -- it's not like those black robes have magical powers, or anything -- but it doesn't only apply to them.
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From:zarfmouse
Date:December 6th, 2003 03:24 pm (UTC)
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I wasn't going for "might makes right" so much as "might makes". It isn't that those with power/teeth are in the moral right, it is that they are able to make things happen. The fact that they are often in the wrong is all the more reason it is too everyone's advantage to encourage a balance of might within a social structure.

And yes, it is a REALLY simplistic and kinda boring observation and yah it applies to lots of things.

Here's my weird world of metaphor:

"votes" is a generic stand in term for "opinions". This is closely related to "access to information". If you want to get things done without coercion by violence or money, people have to agree with you. Resistance to guns or money might not be through actual votes, it might be through a labor strike, a peaceful march, or some other means of expression of opinion. In our particular democracy "votes" is (theoretically) the most accurate and wide reaching measure of "opinions" that we have so the other forms of expression kind of devolve into "votes" (ie if millions of people have a general strike then those same people will probably vote against the status quo in any fair election). If the voting system breaks down, those opinions that would otherwise be expressed as "votes" would still matter for those wish to make things happen even if the actual votes are irrelevent. If a regime doesn't have at least some proportion of public opinion on it's side then it will fail (because either people will revolt directly or because the productivity of the regime will be so bad that the economy will collapse and the powerful will lose their power).

"money" is a stand in term for "access to resources". If things devolved into a barter system then the people who have surplus food and shelter to give away have more power than the people who have a shortage of that stuff. It may be possible to set things up so that no one has surpluses, or if they do, at least no one has shortages. That's the format of many leftist anarchist ideals. You might argue that only with guns can a person really secure their wealth but I think there are scenarios where physical location, special skills, or other factors can make an entity with few guns and few votes more wealthy than a person with a little more.

"guns" is a stand in term for "access to coercive physical force".

I stand by my assertion that guns (physical force), money (access to resources), and votes (opinions which represent a level of willingness to go accept a given program) are the fundamental interrelating building blocks of power. No matter how many guns a regime has, it still needs workers (votes) and it needs to feed them (money).

It's a silly and simplistic model and may not be useful for more than the most basic analysis but I do think that I could describe any given social structure in terms of guns, money, and votes and I could provide examples for which guns alone could be defeated by money or votes.

Now, none of this has to do with morality. Morally, I think that guns and money should absolutely not be a basis for power. I am in favor of a system where guns are minimized, money is distributed equally, and votes are not coerced (important information for forming opinions about the direction society should go is freely available for people to make informed opinions and those opinions become part of the overall social structure). I am in favor of a system where people are so well versed in the forms of non-violent resistance to force that invaders with guns do not stand a chance.

(This use of over-generalized simple metaphor words is similar to how I tend to describe economic systems in terms of "corn" (agricultural products), "tools/machines" (capital), "things" (industrial goods), etc.)
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From:boannan
Date:December 6th, 2003 03:34 pm (UTC)
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(This use of over-generalized simple metaphor words is similar to how I tend to describe economic systems in terms of "corn" (agricultural products), "tools/machines" (capital), "things" (industrial goods), etc.)
***

Settlers of Catan, dude! :)
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From:zarfmouse
Date:December 6th, 2003 03:41 pm (UTC)
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Exactly. This whole thread is all about describing large scale politics in terms of strategy board games.

"This most important thing to remember about this game is that you need money to win and there are three kinds of money. First there is 'money'. Second..." -- The way Mike Kimmitt started out teaching the game Age of Rennaisance to me.
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From:mathuaerknedam
Date:December 6th, 2003 10:36 pm (UTC)
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> I am in favor of a system where people are so well
> versed in the forms of non-violent resistance to
> force that invaders with guns do not stand a chance.

Can you give some example of how this might work? Maybe it's my lack of sleep, but I'm having trouble seeing how the non-violent could resist the violent.
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From:mathuaerknedam
Date:December 7th, 2003 05:18 am (UTC)
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Doh!

I re-followed links and reloaded ad nauseum, and Now I find it here. Maybe it really is just sleep-deprivation.
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From:zarfmouse
Date:December 7th, 2003 08:33 am (UTC)
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xref Gandhi and MLK.

Sit down strikes do a couple important things. On the one hand it is very difficult to dehumanize completely peaceful people and so it is very difficult for the commanders to convince their soldiers that these people need to be shot and killed. When a rampaging army attacks a group of people and they just sit down, this encourages mutiny on the part of the rank and file soldiers of the invading army. No one. except a psychopath, wants to kill people that aren't shooting back. There is a reason that in every war in history both sides have engaged in great propaganda campaigns to dehumanize their enemy and convince their people that the enemy is a great threat.

On the other hand it also makes the industrial capacity of the target nation completely halt. What invader wants a nation full of non-workers? What was the point of invading if you can't profit from the industry and resouces of the target land? Will the invader turn to mass murder to eliminate the non-workers? Will the invader import MILLIONS of people to take over those jobs? Where will those people come from? How skilled will they be in this new environment? How will they all get there at once? The logistics alone are staggering.

So sure, any force-weilding entity could nuke or genocide the non-violent entity into non-existence. But if the non-violent entity consists of a huge number of people the eradication paths would be too costly and logistically impossible to ever consider.

Now a Nazi situation is a bit different because the Nazis weren't invaders, they were a political insurrection from within. To fend off that kind of thing there needs to be a fierce level of constant vigilance among the society. Fascism and it's kin need to be culturally inacceptable. This takes the form mainly of education.

And I'm fully aware that this is all some idealized hippy dreamland. I'd suspect that a functioning non-ideal but pretty-damned-good system could have a defensive army and a slightly armed police force of some kind as a compromise and it'd cause some problems and power dynamics.

I dunno. It's all just theory and wanking on these scales because it sure ain't gonna happen in our lifetimes. I'm MUCH more interested in designing smaller scale communities that can actually be implemented.

Many small scale communities survive simply becase they are small, in an out of the way (hard to get to, no reason to care about) locale.

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From:boannan
Date:December 7th, 2003 12:15 pm (UTC)
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still thinking about getting off the grid?
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From:zarfmouse
Date:December 7th, 2003 12:32 pm (UTC)
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Working on it.

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From:xymboulos
Date:December 7th, 2003 10:23 pm (UTC)
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I think your point about a slightly-less-than-ideal defensive army is a good one. Many nations (Switzerland, Japan) have managed to structure their militaries in such a way that is optimized for defense while practically incapable of offensive operations. This can be accomplished through a combination of technological, organizational, and philosophical principles.

Technologically, immobile emplacements, limited range munitions, and minimal external logistic capacity would make offensive war difficult.

Organizationally, military forces could be divided into small units with specific operational mandates. This would make it difficult to mass enough force for effective offensive operation. Similarly, the narrow focus would keep the military from being effective outside of its jurisdiction.

A militia organization can help on both organizational and philosophical lines as it is ill-suited for offensive operations and is by nature designed for defense. The failure of state units to cross borders in the early Revolutionary war is evidence of this. However, a non-standing army carries the danger that mobilization is required, resulting in a natural "first-strike" strategy, as World War I demonstrated.

Ultimately, the danger in modern times appears to be from the existence of standing armies. I believe a society could inculcate the principle of self-defence (as the US did until World War II and Japan did after).
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From:mathuaerknedam
Date:December 7th, 2003 05:14 am (UTC)
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Hmmm... I thought I posted this once, but I don't see it now.

> I am in favor of a system where people are so well
> versed in the forms of non-violent resistance to
> force that invaders with guns do not stand a chance.

Could you elaborate on what this might look like? I'm having trouble envisioning it.
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