The Covid-19 pandemic “has served as a sort of constitutional stress test,” Justice Samuel Alito observed this month. “The pandemic has resulted in previously unimaginable restrictions on individual liberty.” The setting underscored the point: Justice Alito made his remarks in an online speech that ordinarily would have been delivered in a cavernous hall, before a crowd of hundreds gathered for the Federalist Society’s annual dinner.
A public-health emergency may justify curtailments of liberty that would be unacceptable in normal times. But even in an emergency, America’s government doesn’t wield unlimited powers. Measures taken to deal with this pandemic have imposed severe restrictions on the most basic rights and liberties, often with little consideration of their legal basis. The U.S. Constitution prohibits many of the most draconian measures taken or under consideration.
Joe Biden has implicitly acknowledged the point. Accepting the Democratic presidential nomination in August, the former vice president declared: “We’ll have a national mandate to wear a mask—not as a burden, but to protect each other. It’s a patriotic duty.” But his transition website promises only to “implement mask mandates nationwide by working with governors and mayors.”
A federal mask mandate is a nonstarter because it would have to be grounded in one of Congress’s constitutionally enumerated powers, all of which have limits. The go-to section to justify federal regulation is the clause granting lawmakers the power “to regulate commerce . . . among the several states.” As the Supreme Court held in National Federation of Independent Business v. Sebelius (2012), which involved the ObamaCare mandate to buy medical insurance, individuals must be engaged in commercial activity before Congress can regulate them. Congress cannot impose requirements on the citizenry “precisely because they are doing nothing,” Chief Justice John Roberts wrote.
The same is true of other prospective federal anti-Covid measures, such as a national “stay at home” order or an overall economic lockdown. Congress does have broad authority to regulate business, which it could use to impose workplace safety rules, including mask mandates. But nationwide lockdowns are a dubious legal proposition. Congress has never attempted to eliminate all or most economic activity. Any such requirement, even if supportable under the Commerce Clause, would raise significant concerns about the constitutional rights of people prevented from earning a living.
NEW DELHI: President Ram Nath Kovind on Thursday led the nation in community reading of the preamble to the Constitution on the occasion of the Constitution Day. “The President read the preamble from Rashtrapati Bhavan which was live telecast by Doordarshan and joined by the people across the nation,” an official statement said. It was screened live at Kevadia in Gujarat too which is hosting the 80th All India Presiding Officers’ Conference. The participants also read out the preamble along with the President, the statement said.
President Kovind lead the nation in reading the Preamble to the Constitution of India on the occasion of Constituti… https://t.co/6nEKx9KcNj
“The community reading of the Preamble, organised by the Union Ministry of Social Justice and Empowerment, is the part of various activities such as webinars, exhibitions, essay competition, poster competition, quiz competition and slogan competition aimed at highlighting and reiterating the values and principles enshrined in the Constitution,” said the statement.
Kolkata: Union Minister Babul Supriyo said on Friday that the Trinamool Congress should mend its way and desist from “intimidating voters”, otherwise there are provisions in the Constitution to take care of such things. Supriyo alleged that more than 130 BJP workers have been killed in West Bengal.
“The TMC should mend its ways. Only a few months are left for the elections. If the TMC members think they can intimidate voters and engage in political violence, then there are provisions in the Constitution to take care of such things,” he told a local news channel.
Supriyo claimed that the people of the state have made up their mind to vote for the BJP in the assembly elections, which are likely to be held in April-May next year.
“We want the people who voted TMC to power to topple the present government through a democratic process,” said Supriyo.
The TMC said that Supriyo was hinting at imposing President’s rule in the state.
“If he was hinting at the imposition of Article 356 in Bengal, then he should first talk about the imposition of President’s rule in Uttar Pradesh where rule of law has ceased to exist,” TMC MP Sougata Roy said.
BRITONS HAVE been gripped in recent days by a drama superior to anything Netflix has to offer. Dominic Cummings, the all-powerful adviser who masterminded Brexit and had Boris Johnson in his thrall, has been ousted by a triumvirate made up of Allegra Stratton, the prime minister’s press secretary, Munira Mirza, his policy chief (who used to be a revolutionary communist—but that’s another story) and his girlfriend, Carrie Symonds. Those who disapproved of Mr Cummings not just for his appalling manners but also for his radicalism, of whom there are many both inside and outside the Conservative Party, are hoping that Mr Johnson will revert to being the pragmatic One Nation centrist he was as mayor of London.
That is certainly the impression that the prime minister gave this week when he launched a ten-point plan to turn Britain green. But Mr Cummings’s great project will roll on without him.
The plan, which has the support of the Tory party and was outlined in the 2019 manifesto, is to weaken the judicial, political and administrative limits that have been placed on the power of the executive. Brexit is only the beginning. By the time of the next election, ministers will have control over more policies, enjoy more discretion and face fewer restraints than they have for decades.
Meg Russell, director of the Constitution Unit at University College London, warns of “democratic backsliding”. Charlie Falconer, the shadow attorney-general, sees Britain falling “under a majoritarian dictatorship”. Some see parallels in America or even Hungary, yet this is a distinctly British story: a conservative counter-revolution against checks and balances to executive power built up over half a century.
In a televised lecture in 1976, Lord Hailsham, a former Lord Chancellor, called for the overthrow of Britain’s ruling dictatorship. There was no junta of mustachioed generals and secret policemen; James Callaghan, the Labour prime minister, was a gentle fellow. Rather, Hailsham argued, Britain was an “elective dictatorship”. Parliamentary sovereignty, the underpinning principle of Britain’s uncodified constitution, granted the legislature the power to make and undo any law it wished, he explained. A government which commanded a majority in the House of Commons enjoyed a power absolute in theory and constrained in practice only by political realities and MPs’ consciences. “Only a revolution, bloody or peacefully contrived, can put an end to the situation,” he said.
Hailsham proposed a written constitution, inspired by those in Australia and Canada, which would curb the power of Parliament. He wanted a federal system of devolved parliaments for Britain’s nations and regions, a bill of rights and an elected House of Lords. The new arrangement would be overseen by the courts. The queen would stay, of course.
Yet the regime he criticised was already being dismantled. From the 1960s, judges and legal academics responded to the ever-bossier post-war state by developing the doctrine of judicial review. In a series of cases, they marked out the scope for judges to overturn the decisions of ministers who had overstepped the powers Parliament gave them, failed to follow a fair process or behaved irrationally.
In 1973, Britain joined the European Economic Community. In the following decades, control of many areas of policy once dealt with in London went to Brussels. In exercising their remaining powers, ministers were constrained by European laws on state aid, procurement and the environment. Margaret Thatcher was enthusiastic, for the process limited the scope for them to mess with the economy. Brussels required the courts to strike down domestic laws and decisions that contradicted European law.
Tony Blair, who took office in 1997, thought Britain over-centralised and remote from citizens. The revolution he led looked a lot like the one Hailsham envisaged. He set up new devolved governments in London, Scotland, Wales and Northern Ireland. (An assembly later planned for north-east England was rejected in a referendum after a campaign on which Mr Cummings worked. Its slogan was “More doctors, not politicians”.) A Supreme Court was created, independent of the legislature. A Human Rights Act, with which laws and ministers’ decisions had to conform, was passed. There was more oversight and less secrecy. Thatcher had set up the National Audit Office to scrutinise government spending; Mr Blair’s Freedom of Information Act created new rights of access to official papers.
David Cameron, a small-state moderniser, abolished the prime minister’s power to trigger elections. He strengthened Whitehall’s hand, recognising the civil-service code, which asserts officials’ political impartiality, in law. He bolstered the regime of ministerial directions, under which senior civil servants can publicly caution ministers if they believe a project is undeliverable or wasteful.
Vernon Bogdanor, a constitutional historian, concluded in 2009 that Mr Blair’s reforms were a classically liberal project in limited government, “seeking to secure liberty by cutting power into pieces.” Before proposing a law, ministers had to check that it was compatible with European and human-rights legislation, as well as the devolution settlement. Ministers could expect their decisions to be scrutinised by judges, auditors and the public. The elective dictatorship had been toppled.
The Conservatives miss the ancien régime. They blame judicial review for gumming up decision-making, and human-rights law for hobbling immigration policy. The crude carve-up of policy areas between London, Edinburgh and Cardiff has, they think, left the British government too feeble to tackle crises like covid-19. Devolution was meant to save the Union but, they maintain, has only boosted separatists. On November 16th, in a moment of candour, Mr Johnson expressed this view, telling a gathering of MPs he thought Scottish devolution a “disaster” and Mr Blair’s “biggest mistake”.
What Hailsham saw as a dictatorship, the Tories see as a bond between voters and the government. Institutions and watchdogs created during Mr Blair’s tenure masquerade as independent, argues an official, but instead form a parallel political class. According to this view, Blairism weakened rather than strengthened democracy: voters are disillusioned not because Westminster is too mighty but because those they chose to run the country are constrained by people who have not been elected.
For many Tories the prorogation debacle of 2019 confirmed that things had gone badly wrong. It was the culmination of a battle around Brexit which, said the Conservative Party manifesto in the subsequent election, “opened up a destabilising and potentially extremely damaging rift between politicians and people”.
Mr Johnson had promised, “do or die”, to deliver Brexit on October 31st, but without a working majority, and unable to call an election, he was blocked by Parliament. He prorogued Parliament, but the Supreme Court, which heard interventions from the Scottish and Welsh governments, blocked his move. The judges described their decision as a defence of Parliament, in keeping with the courts’ role in settling constitutional questions for more than 400 years. Brexiteers saw it differently, and are determined to prevent the executive from losing control again.
In most countries, changing the constitution is hard. In Britain, it is easy. The new checks and balances were passed by Parliament, and what Parliament has created, it can take away. The reforms of the past 40 years will not be overthrown, but there will be a course-correction to assert the primacy of the politicians over judges and officials. Danny Kruger, a Tory MP, calls it “a restoration of politics to its proper place at the apex of our common life.”
Brexit, which comes into full effect on January 1st, ends the supremacy of European law in Britain. As Mr Cummings’s campaign slogan of “take back control” promised, both the workload and the elbow-room of ministers will expand. They will take charge of the sanctions imposed on Russian kleptocrats, the allocation of airport landing-slots and the chemical composition of toilet unblocker. David Frost, Mr Johnson’s negotiator, sees Brexit as a zero-sum game in recovering lost sovereignty. Ending Europe’s control over state subsidies and emissions is “the point of the whole project.”
Parliament has passed a stack of laws to patch the hole left by Brussels in running Britain. But whereas in Brussels powers are distributed among the EU’s institutions, in Britain they are concentrated in ministers’ hands. MPs will have less freedom to block future trade deals than their counterparts in the European Parliament or America’s Congress; ministers will have wide powers to rewrite regulations on agriculture and medicines. A new environmental regulator has been set up, but campaigners think it weedier than the European Commission.
While ministers get mightier, the courts are being weakened. They will no longer be able to strike down decisions and acts incompatible with EU law. A review led by Edward Faulks, a critic of the prorogation ruling, will ask whether judicial review is being abused “to conduct politics by another means”. It will look at placing some of the prime minister’s prerogative powers, such as deploying troops or appointing ministers, beyond the reach of judges, and at “streamlining” the burden placed on government by disclosure rules.
Robert Buckland, the Lord Chancellor, is considering changing the Supreme Court’s name to downgrade its status. A further review of how the courts apply the Human Rights Act will be launched this month. Mr Johnson wants to reclaim the power to trigger elections by repealing Mr Cameron’s Fixed-term Parliaments Act.
Critics argue that this will result in worse, not better, government. If disclosure is limited, the scope for bringing unlawful behaviour to light will be too. Judicial-review cases are usually about everyday matters in which officials have administered lousily, rather than grand constitutional questions. Judges enter political terrain rarely, reluctantly and only with good reason—which, many would argue, they had in the case of the prorogation of Parliament.
Devolution is being nudged back too. Mr Johnson wants to end the impression that he is a visitor in a foreign land when he tours the United Kingdom, and to show that being in the Union pays. Brussels used to send money to Scotland and Wales to pay for film festivals, bridges and other goodies. In future London will distribute that bounty. The pandemic has also left city mayors feeling squeezed. Manchester’s Andy Burnham, among others, complained about the imposition of lockdown in his city; Sadiq Khan, mayor of London, accused the government of a power grab after it threatened to take control of Transport for London, the Tube operator, during bail-out negotiations.
The Internal Market Bill, published on September 9th, is intended to create an all-UK market after Britain drops out of the EU’s single market. It contains wide “ouster” clauses, limiting judges’ scope to review how ministers use their powers and exempting them from their duty to act in accordance with the Human Rights Act. The government’s legal advice justified the bill on the bald principle of parliamentary sovereignty: if lawmakers vote for it, it is constitutional.
“We are living through Hailsham’s nightmare,” says Peter Hennessy, a constitutional historian. The difference between the 1970s and today, he says, is the degree to which ministers restrain themselves to do only what they regard as right and proper: the so-called “good chaps” theory of government. “The problem with this government is its alarm bells don’t ring,” he says.
The executive lacks internal checks and balances. Mr Johnson’s cabinet is stuffed with timid loyalists whose aides, since a restructuring by Mr Cummings, now answer to Downing Street. The government’s top lawyers—Mr Buckland, Suella Braverman, the attorney-general, and Michael Ellis, the solicitor-general—nodded through the Internal Market Bill, which broke international law, although the head of the civil service’s legal department and the advocate-general for Scotland quit over it. “If you operate a command model, you can go a long way foolishly before anyone raises a flag,” says Lord Hennessy.
Raising flags is one of the two jobs of Britain’s permanent civil service. The civil service is not merely an instrument of ministerial will, bound to deliver the policies of the elected government: it is also a soft check on ministerial whim. Civil servants are obliged to provide politically impartial advice based on rigorous evidence. Job security, the logic runs, encourages honesty.
The tension between the civil service’s two jobs is of long standing. Mr Cummings’s complaint that mandarins smother innovation and defend the status quo was the premise of “Yes, Minister”, a 1980s TV comedy. But the attacks on it now are unusually fierce. Under Mr Johnson, a string of top civil servants have been shoved out. Mark Sedwill, who quit as cabinet secretary in June, told MPs on November 17th that briefings to newspapers discouraged civil servants from giving “blunt and candid” advice.
The government wants to make the civil service more skilled and to raise the prestige of “operational” folk. But it also wants to make it more responsive to ministerial will. Mr Johnson has filled top jobs with political allies, including Dido Harding, the head of Britain’s test-and-trace service, and Lord Frost. The number of ministerial directions has risen sharply this year (see chart), largely because of the need for speed during the pandemic. Theodore Agnew, the minister in charge of government reform, thinks ministers should be more willing to override cautious civil servants.
The main obstacle to the Internal Market Bill is now the House of Lords, which heavily amended the bill on November 9th. “It would be extraordinary if a measure of this kind, which whatever your view is a controversial measure, had not been questioned. They were carrying out their constitutional duty,” says Lord Fowler, the Lords’ speaker. Yet the upper house has little power: it can only delay bills, and by convention does not block the government’s manifesto promises. Its credibility is undermined by a bizarre appointments system which combines tradition with patronage. Mr Johnson has shown disdain for it, filling it with pals and suggesting it move to York.
For 200 years, the Conservative Party has forestalled popular revolution by constitutional evolution. Ministers say that is what they are doing now, by channelling populist anger at over-mighty judges and foot-dragging mandarins. But there are worries about the direction of travel, not least from the government’s own side.
An overweening executive does not sit comfortably with a taste for small government. Immigrants may appeal to judges to avoid deportation; so do Home Counties Tories keen to block developments. Business, too, dislikes government by ministerial whim, for investors prize the security that the rule of law offers. Those concerns have already made themselves felt. On October 16th, Moody’s downgraded Britain’s credit rating, blaming, in part, the country’s weakened institutions and its approach to rules and norms.
Mr Cummings’s goal was to deliver vast “moonshot” projects faster and cheaper. But government failures are often the consequence of hasty ministers listening to civil servants too little, not too much. “There’s a real problem with ministers that overpromise and under-deliver. You need checks and balances upfront,” says Gus O’Donnell, a former cabinet secretary.
There are diplomatic costs, too. The breach of international law embodied in the Internal Market Bill was condemned not just by the Labour Party and all living former prime ministers, but also by Joe Biden, whom Mr Johnson is now desperate to impress. It also poisoned trade talks in Brussels. And how, asked Sir John Major, a former prime minister, could Britain wag the finger at Russia and China again when they flouted international norms?
Mr Johnson fought the 2019 election on the basis that “getting Brexit done” would heal the country’s divisions. Instead, it opens new questions about where power should lie and how it should be constrained. Sir Keir Starmer, the Labour leader and a former human-rights barrister, is a defender of the checks, balances and mores of Mr Blair’s era. Mr Johnson represents a new strain of majoritarian democracy, for whom statecraft is a simple matter of serving voters what they ordered. The battle for Brexit is over. The fight for the constitution has just begun.■
This article appeared in the Britain section of the print edition under the headline “The executive unchained”
Newly-appointed Uttar Pradesh BSP chief Bhim Rajbhar on Monday accused the Yogi Adityanath government and Centre of “murdering” the country’s Constitution and democracy.
He claimed that Bahujan Samaj Party (BSP) chief Mayawati will become the chief minister of the state after winning the 2022 Assembly election.
Addressing BSP workers at the party office in Phephana, Rajbhar attacked the BJP government over the “deteriorating” law and order situation in the state and claimed that anarchy was prevailing everywhere.
“Almost everyday, there is murder, loot and incidents of rape. This proves that the rule of law in the state has ended”, he said.
Rajbhar said the people of Uttar Pradesh are now looking towards BSP chief Mayawati as an alternative because the party believes in taking along every section of the society.
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Recent polls indicated heavy backing for a new constitution despite opposition from conservative groups, and centre-right Piñera said after voting that he assumed the measure would be approved.
“I believe the immense majority of Chileans want to change, modify our constitution,” he said.
A special convention would then begin drafting a new constitution to be submitted to voters in mid-2022.
The current constitution was drafted by the dictatorship of General Augusto Pinochet, and was sent to voters at a time when political parties had been banned and the country was subject to heavy censorship.
It was approved by 66 per cent of voters in a 1980 plebiscite, but critics say many voters were cowed into acceptance by a regime that had arrested, tortured and killed thousands of suspected leftist opponents following the overthrow of an elected socialist government.
“I think that many people went to vote out of fear,” said political scientist Claudio Fuentes, who wrote a book about that plebiscite titled, The Fraud.
“The current constitution has a flaw of origin, which is that it was created during the military dictatorship in an undemocratic process,” said Monica Salinero, a 40-year-old sociologist who supports drafting a new charter.
The free-market principles embodied in that document led to a booming economy that continued after the return to democracy in 1990, but not all Chileans shared.
A minority was able to take advantage of good, privatised education, health and social security services, while others were forced to rely on sometimes meagre public alternatives. Public pensions for the poorest are just over $US200 ($280) a month, roughly half the minimum wage.
Luisa Fuentes Rivera, a 59-year-old food vendor, hoped that “with a new constitution we will have better work, health, pensions and a better quality of life for older people, and a better education.”
But historian Felipe Navarrete warned, “It’s important to say that the constitution won’t resolve the concrete problems. It will determine which state we want to solve the problems.”
Claudia Heiss, head of the political science department at the University of Chile, said it would send a signal about people’s desires for change, and for a sort of politics that would “allow greater inclusion of sectors that have been marginalised from politics.”
Conservative groups fear the revamp could go too far, and endanger parts of the constitution that have helped the country prosper.
“The people have demonstrated saying they want better pensions, better health, better education, and the response of the political class” is a process that won’t solve the problems and will open a period of uncertainty,” said Felipe Lyon, 28-year-old lawyer and spokesman for the group “No, Thanks” that opposes the change.
The decision to allow the vote came after hundreds of thousands of Chileans repeatedly took to the streets in protests that often turned violent.
The vote was initially scheduled for April, but was delayed due to the COVID-19 pandemic which has killed some 13,800 Chileans. More than 500,000 people, or one in four Chileans, have been infected by the new coronavirus.
Officials trying to ensure voters felt safe barred infected persons or those close to them from the polls, and long lines formed at voting places. Voters had to wear masks — dipping them only briefly for identification purposes — and brought their own pencils.
The manner of drafting a new constitution was also on the ballot. Voters were choosing between a body of 155 citizens who would be elected just for that purpose in April, or a somewhat larger convention split equally between elected delegates and members of Congress.
Why do I love the U.S. Constitution? This instrument formally converted the worth of my great-great-grandfather Sidiphus into three-fifths’ that of a free person. Living in the East Indies as a free man, Sidiphus had been tricked into enslavement—recruited to a Georgia farm just before the Civil War by the promise of a foremanship. Had he managed to escape Georgia and bondage prior to the onset of the war, the Constitution would not have protected his God-given natural rights.
Article I, Section 2 of the Constitution determined that representation in Congress and direct taxation would be apportioned to the states by adding up the whole number of free people, plus “three-fifths of all other persons”—meaning enslaved persons—“excluding Indians not taxed.” These words carried into the Constitution a compromise first formulated in 1783 in a proposed amendment to the Articles of Confederation. That compromise was later adopted in the Constitution to resolve the conundrum of how to tax the plantation wealth of the South without giving white landowners outsize power in Congress by including enslaved people in the official count of the population.
Given the crime against humanity written into the Constitution because compromise was necessary to form a union—and given the sharp and unabating attention that the nation’s Founders and their writings have received in recent months—I had better have a rock-solid explanation for my love of that document. Simple love of country, land of my mother’s milk, won’t do. My love must be sighted, not blind.
As it happens, Sidiphus’s God-given natural rights had been much earlier asserted by none other than Thomas Jefferson and fellow members of the drafting committee of the Declaration of Independence. They took the trouble to make this assertion in the original draft of the Declaration, when they castigated the King of England for violating—through his protection of the trade in enslaved people—the “sacred rights of life and liberty” of Africans who had never done him any harm. We will never know if it was Jefferson who thought up those words—words that would take many Americans today by surprise—or another committee member, perhaps John Adams or Benjamin Franklin. Adams, from Massachusetts, never enslaved anyone and thought enslavement was wrong. Franklin, from Pennsylvania, who himself had been an indentured servant, did enslave African Americans early in his life, but he eventually abandoned the practice and became a full-throated abolitionist. Pennsylvania and Massachusetts would be the first states to abolish enslavement, in 1780 and 1783, respectively (and gradually in the case of Pennsylvania)—years before the U.S. Constitution was adopted, and even before the Revolution was formally over. The Continental Congress, of course, in its revisions to the draft of the Declaration of Independence, struck out any explicit recognition of Africans’ human rights, postponing their protection until 1865, when the Thirteenth Amendment was ratified.
Already in 1776, Benjamin Franklin could make cutting jokes about the so-called slave interest and its influence on American politics. In the July 1776 debates over the Articles of Confederation, this exchange occurred between Franklin and Thomas Lynch Jr., of South Carolina, as recorded in the Journals of the Continental Congress:
lynch: If it is debated, whether their slaves are their property, there is an end of the confederation. Our slaves being our property, why should they be taxed more than the land, sheep, cattle, horses, &c.? Freemen cannot be got to work in our Colonies; it is not in the ability or inclination of freemen to do the work that the negroes do.
franklin: Slaves rather weaken than strengthen the State, and there is therefore some difference between them and sheep; sheep will never make any insurrections.
Franklin knew that enslaved men, women, and children were fully his equal, as capable of insurrection and revolution as he and his colleagues had been that hot July day in Philadelphia when they resolved to break away from Britain. Franklin recognized that a society built on a foundation of domination would be as unstable as the foundation itself.
Eleven years later, though, Franklin was helping shore up the Great Compromise, the adoption of the three-fifths clause that underestimated my great-great-grandfather’s worth. In the final days of the Constitutional Convention, delegates debated whether they would convey their draft to Congress without individual endorsements or seek to have each delegate affix his signature to the document. The latter approach, which in fact played out, would amount to a pledge of commitment and ensure that dissent would die in the Convention—sworn secrets of the debates long concealed until James Madison’s unofficial notes surfaced decades later. Franklin was in favor of consensus and for burying reservations. In a statement he said:
Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure that it is not the best. The opinions I have had of its errors, I sacrifice to the public good. I have never whispered a syllable of them abroad. Within these walls they were born, and here they shall die. If every one of us in returning to our Constituents were to report the objections he has had to it, and endeavor to gain partizans in support of them, we might prevent its being generally received, and thereby lose all the salutary effects and great advantages resulting naturally in our favor among foreign Nations as well as among ourselves, from our real or apparent unanimity.
With these words, Franklin articulated the deepest, hardest truth of free self-government. People can have the chance of self-government through the institutions of constitutional democracy if and only if they prioritize the preservation of those institutions over wins in substantive domains of policy. For this lesson, Abraham Lincoln is our foremost teacher. When union and policy commitments come into conflict, those who wish to preserve free self-government must choose union. In that spirit, Franklin chose freedom for some over freedom for none.
Yet not all compromises are good ones. And not all are necessary. To understand and embrace the centrality of compromise to the sustainability of constitutional democracy and the self-government of free and equal citizens, one needs to be able to distinguish between good and bad compromises. Both the Declaration and the Constitution (via the Bill of Rights) include another important compromise, this one not about enslavement but about religion. The Declaration simultaneously uses the languages of rationalism and of faith to establish the grounds for its moral commitment, as when it invokes the “Laws of Nature and of Nature’s God.” While the text refers to a “Creator,” to “divine Providence,” and to a “Supreme Judge,” it studiously avoids using the vocabulary of any specific religion or doctrine. The text is capacious. Believers and nonbelievers alike are given reason to sign on; no specific form of belief takes precedence. Similarly, the Constitution’s inclusion of the protection of religious freedom and the separation of Church and state formed the structure for a profoundly valuable and durable compromise. James Madison led the argument for the provision, responding to efforts in Virginia to pass a law requiring all taxpayers to make an annual contribution or pay a moderate tax in support of churches. (Advocates of the law included some of the old lions of the Revolution, such as Patrick Henry, Edmund Pendleton, and Richard Henry Lee.)
What made the compromises around religion morally legitimate and sound was that they took into account the perspectives of all those in the new country who would be affected by them. Every religious point of view present in the colonies in 1776 was conceivably embraced by the language, including those of the disenfranchised. The compromise about enslavement did not, in contrast, consider the perspective of all those affected by that decision. Standing on partial ground, it lacked moral legitimacy and would ultimately prove destabilizing for the country.
Yet the compromise was made, and Franklin was not the only one who understood himself to have been complicit in it. So too did James Wilson. Wilson, like Franklin, was from Philadelphia. At the Constitutional Convention, he was one of the few elder statesmen who had also signed the Declaration of Independence. (Wilson was 44; Madison was 36.) He repeatedly asserted that the work of creating the Constitution was but an extension of foundations laid by the Declaration. Wilson was Madison’s equal at the Convention in terms of learning and influence. Although he was a member of the first Supreme Court, we have nonetheless all but forgotten him, presumably because he was also the first and only Supreme Court justice to go to debtors’ prison (as a result of failed land speculations). He died of a stroke while fleeing the reach of the law.
Whereas Franklin was an enslaver in the earlier parts of his life, Wilson was an enslaver for much of his life. Even while publicly writing and speaking against enslavement, he owned a man named Thomas Purcell for 26 years. However, two months after marrying a Quaker woman, Hannah Gray, he emancipated Purcell, an act often attributed to Gray’s influence. Like Franklin, Wilson fully understood the nature of the compromise in the Constitution, and was prepared to accept it. During Pennsylvania’s ratifying convention, he responded thus to a Pennsylvanian who objected to the three-fifths clause of the Constitution and to another provision, in Article I, Section 9, protecting the right to import enslaved people for 20 years:
With respect to the clause restricting Congress from prohibiting the migration or importation of such persons as any of the states now existing shall think proper to admit, prior to the year 1808, the honorable gentleman says that this clause is not only dark, but intended to grant to Congress, for that time, the power to admit the importation of slaves. No such thing was intended … Under the present Confederation, the states may admit the importation of slaves as long as they please; but by this article, after the year 1808, the Congress will have power to prohibit such importation, notwithstanding the disposition of any state to the contrary. I consider this as laying the foundation for banishing slavery out of this country; and though the period is more distant than I could wish, yet it will produce the same kind, gradual change, which was pursued in Pennsylvania … A tax or duty may be imposed on such importation, not exceeding ten dollars for each person; and this, sir, operates as a partial prohibition; it was all that could be obtained. I am sorry it was no more; but from this I think there is reason to hope, that yet a few years, and it will be prohibited altogether.
The best, then, that can be said about the compromises regarding slavery that also helped the Constitutional Convention achieve unanimity is this: Those who knew enslavement was wrong but nonetheless accepted the compromises believed they were choosing a path that would lead inexorably, if incrementally, to freedom for all.
We cannot, however, assume with Wilson and Franklin and others like them that incrementalism was the only available path to freedom for all. It is also not clear that the Constitution’s compromises even accelerated the march of freedom, whether for enslaved people or for people more generally. Britain offers a natural experiment with which to make judgments about alternative paths. Revolutionary ideas were afoot there too in the 1770s and ’80s. Universal suffrage for men was proposed in Parliament for the first time in 1780 by Charles Lennox, the third Duke of Richmond, an ardent supporter both of the American revolutionaries and of radicals in Britain. Yet at home, in the British Isles, the Crown managed to fend off the revolution it could not defeat in 13 of its colonies.
This, however, did not result in the permanent nonfreedom of British subjects. A British legal judgment in 1772 introduced a doctrine against selling enslaved people abroad, a doctrine that was commonly though erroneously thought to mean that no one could be held as a slave on English soil. In de facto fashion it reduced enslavement in Britain and redirected the attention of abolitionists to enslavement in the British colonies. In 1793, “Upper Canada”—in essence, the region just north of the Great Lakes—passed the Act to Limit Slavery, the first law of its kind in the remaining British colonies. Britain itself in 1833 passed the Slavery Abolition Act, dismantling enslavement throughout its Caribbean colonies and making Canada a free land for African Americans who escaped slavery in the U.S. The law helped make possible the Underground Railroad, the fights about the Fugitive Slave Act, and the dynamics that eventually led to the Civil War.
As to universal manhood suffrage, there the United Kingdom moved slowly. In 1832, Britain introduced the first of what would eventually be three 19th-century Reform Acts. This act had different rules for those living in counties versus towns. In towns, men who occupied property with an annual rent of at least 10 pounds could vote. That still left six out of seven men without voting rights. Britain adopted another reform measure in 1867 and one more in 1884. The third Reform Act gave the vote to all male house owners and all males paying rent of 10 pounds or more a year—leaving out 40 percent of men and of course 100 percent of women. These changes were accomplished without a bloody internal war.
The U.S. gave the vote to all male citizens regardless of skin color or former condition of servitude only with the Fifteenth Amendment, in 1870. Until that point, African Americans as well as some white men in states that made tax payment a prerequisite had been denied the right to vote. These changes required a bloody civil war, and even they were still partial. Pennsylvania and Rhode Island maintained tax-paying qualifications into the 20th century; women and Native Americans did not yet have suffrage. In both Britain and the United States, true universal suffrage was not adopted until well into the 20th century, and fights for voting rights persist.
In other words, the Constitution did not earn an earlier release from bondage or promote universal suffrage for men much faster than was accomplished under Britain’s constitutional monarchy. Nor much faster than was achieved in Canada, a country we can look to for an answer to the question of what might have happened had the North American colonies that came to form the United States failed in their bid for freedom.
What did accelerate the march of freedom for all was abolitionism, a social movement that crystallized in both the United States and the United Kingdom in the years immediately following the revolutionary break between the two. Moral leadership made this difference. Freedom flows from the tireless efforts of those who proclaim and pursue protection of the equal human dignity of all.
So why, then, do I love the Constitution? I love it for its practical leadership. I love it because it is the world’s greatest teaching document for one part of the story of freedom: the question of how free and equal citizens check and channel power both to protect themselves from domination by one another and to secure their mutual protection from external forces that might seek their domination.
Why do we have three distinct aspects of power—legislative, executive, and judicial—and why is it best to keep them separate and yet intermingled? A typical civics lesson skates over the deep philosophical basis for what we glibly call “separation of powers” and “checks and balances.” Those concepts rest on a profound reckoning with the nature of power.
The exercise of power originates with the expression of a will or an intention. The legislature, the first branch, expresses the will of the people. Only after the will is expressed can there be execution of the desired action. The executive branch, the second branch, is responsible for this. The judiciary comes third as a necessary mediator for addressing conflicts between the first and second branches. The three elements of power—will, execution, and adjudication—are separated to improve accountability. It is easier to hold officials accountable if they are limited in what they are permitted to do. In addition, the separation of powers provides a mechanism by which those who are responsible for using power are also always engaged in holding one another accountable.
James Madison, in The Federalist Papers, a series of newspaper opinion pieces written by Madison, Alexander Hamilton, and John Jay in 1787 and 1788 in support of the proposed Constitution, put it this way:
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself. A dependence on the people is no doubt the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
To ensure that power could be held accountable, the designers of the Constitution broke power into its component parts. They assigned one power to each of three branches. Then they developed rules and procedures that would make it possible for officers in each branch to not only exercise their own powers but also, to some extent, check and counterbalance the use of power by others. The point of giving each branch ways of slowing down the other branches was to ensure that no branch would be able to dominate and consolidate complete power.
The rules and procedures they devised can also be called “mechanisms”—procedures that in themselves organize incentives and requirements for officeholders so that power flows in good and fair ways.
We all use mechanisms to limit power and achieve fairness in our ordinary lives. A good example is the kind of rule parents use for helping children share desserts. If I’ve got a cake, and I need to divide it up between two children, the easiest way for me to achieve a fair outcome is if I let one child slice while the other child gets first pick. The child who slices has an incentive to slice as fairly as possible, knowing that the second child will surely choose the bigger slice if the slices are not equal. Parenting books do not generally cite “Federalist No. 51,” in which Madison advised, “Ambition must be made to counteract ambition.”
The U.S. Constitution is full of mechanisms like this to structure the incentives of officeholders to make sure power operates in fair ways. Here is a smattering of my favorite examples, courtesy of the identification in The Federalist Papers of the highest and best features of the Constitution:
Each branch should have as little agency as possible in the appointment of the members of the other, which means no branch can surreptitiously come to control another by populating its personnel and staff.
Each branch should be as little dependent as possible on the others for emoluments annexed to their offices, which means no branch falls under the sway of another by virtue of hoping for a raise.
No double-office holding is permitted, which means that trying to play a role in more than one branch at the same time is strictly off-limits.
The executive has a veto over legislation, but it can be overruled by a two-thirds vote of the Senate, which means that an executive decision (on legislation) emanating from support of a bare majority of the people cannot overrule a view emanating from a supermajority of the country.
The executive can propose the draft of treaties, but ratification requires senatorial advice and consent, which prevents treaties from being struck as personal deals with benefits to the executive and thereby hinders corruption.
The Senate must approve Supreme Court appointments made by the president, but the Court has the power of review over laws passed by Congress, which means Congress can be overruled by justices to whose appointment the legislative branch has itself consented.
The Constitution is the law of the land and establishes powers of enforcement, but it can be changed through a carefully articulated amendment process, by the people’s standing legislative representatives or by representatives to conventions especially elected for the purpose—which means the final power always rests with the people.
I delight in the cleverness of these mechanisms. There are many more. Instituting a bicameral legislature—having a Senate and a House of Representatives—is itself a check on monolithic legislative power. I marvel at the Constitution’s insight into the operations of power. I respect the ambition of the people who sought to design institutions and organize the government with the goal of ensuring the safety and happiness of the people. I see its limits, but I love its avowal—by stipulating the process for amendment, to date exercised 27 times—of its own mutability. Remarkably, the Constitution’s slow, steady change has regularly been in the direction of moral improvement. In that regard, it has served well as a device for securing and stabilizing genuine human progress not only in politics but also in moral understanding. This is what figures like Franklin and Wilson anticipated (or at least hoped for).
It would be a mistake to think that Britain’s own slow march toward the expansion of freedom was in no way prodded along by the example across the Atlantic and domestic pressures flowing from that example, just as Britain’s earlier abolition of enslavement generated pressures that drove the march of freedom forward here at home.
The Constitution is a work of practical genius. It is morally flawed. The story of the expansion of human freedom is one of shining moral ideals besmirched by the ordure of ongoing domination. I muck the stalls. I find a diamond. I clean it off and keep it. I do not abandon it because of where I found it. Instead, I own it. Because of its mutability and the changes made from generation to generation, none but the living can own the Constitution. Those who wrote the version ratified centuries ago do not own the version we live by today. We do. It’s ours, an adaptable instrument used to define self-government among free and equal citizens—and to secure our ongoing moral education about that most important human endeavor. We are all responsible for our Constitution, and that fact is empowering.
That hard-won empowerment is why I love the Constitution. And it shapes my native land, which I love also simply because it is my home. The second love is instinctual. The first comes with open eyes.
This article appears in the October 2020 print edition with the headline “The Constitution Counted My Great-Great-Grandfather as Three-Fifths of a Free Person.”
In our series of letters from African journalists, Waihiga Mwaura looks at what has changed in Kenya 10 years after it adopted a new constitution intended to reform how the country was governed and reduce ethnic tensions.
There are many lessons from George Orwell’s famous book Animal Farm – the most poignant being that the animals who rebelled against their human farmer hoping to create an equal society ended up being disappointed by what came next.
With the bells of independence chiming across the continent around 10 years after that classic was written, there was great hope that newly achieved African self-rule would lead to the equitable distribution of resources.
Several decades on that expectation was replaced by disillusion as local oppressors often took the place of the expelled colonial “masters”.
This is why Kenyans were so jubilant on 27 August 2010 when a new constitution was adopted.
In the words of former Chief Justice Willy Mutunga, the new laws marked the culmination of “almost five decades of struggles that sought to fundamentally transform the backward economic, social, political, and cultural developments in the country”.
What changes did the 2010 constitution usher in?
Well, previously the president operated with imperial-like powers controlling the three arms of government.
He appointed and sacked judges.
He determined the calendar of parliament and could have as many ministers as he liked.
You get the picture.
Kenyans were clear in terms of what they wanted.
They were keen to see clear a separation of powers between the legislature, the executive and the judiciary.
They wanted their rights more definitively enshrined in the constitution, they wanted gender equality and they wanted the devolution of resources – away from central government to the 47 counties that were created.
So a decade on, it has been a time of reflection, looking back at the gains made – like more respect for human rights – but also at the missed opportunities.
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And – according to an Infotrak poll commissioned by several civil society organisations, including Amnesty International Kenya – the views are mixed.
Only 23% of Kenyans are satisfied with how it has been implemented and 77% are either dissatisfied or disinterested.
Senior lawyer Ahmednasir Abdullahi believes the problem is that the constitution is just too progressive for the political elite, saying they have only rolled out what is convenient to them.
One of the most striking failures can be seen in the sea of male faces in parliament – the requirement that not more than two-thirds of MPs be of the same gender has clearly not been implemented.
The judiciary says its funding is not in line with what was promised in the constitution.
And the executive and judiciary have certainly not seen eye to eye since the Supreme Court annulled the August 2017 election over irregularities.
When the Supreme Court was due to hear another case seeking to delay the rerun in October 2017, not enough judges turned up – one was unable to come as her bodyguard had been shot by gunmen earlier in the week – meaning the vote, boycotted by the opposition, went ahead as planned.
Judges also accuse the executive of regularly flouting court orders.
Poorer counties are still poor while a bill is languishing in parliament that would give them access to a $240m (£182m) fund for development projects.
The much-vaunted land commission that was to review past abuses has had little impact as it has been dogged by leadership problems.
Corruption is still a major issue – with Kenyans currently focused on the alleged theft of millions of dollars meant for the purchase of medical supplies to combat the Covid-19 pandemic that has turned into a vicious political battle.
And there is a concern that the constitution did not satisfactorily ensure the independence of the police.
So is there a way forward?
Some, including the leader of the opposition ODM party, Raila Odinga, who served as prime minister in the government of national unity that brought in the constitution after deadly post-poll violence, feel some of the laws need amending.
He has joined forces with President Uhuru Kenyatta to champion change under an initiative dubbed “Building Bridges”.
The two rivals kissed and made up – metaphorically – two years ago to end tensions following another disputed, deadly and divisive election season.
They agreed to put together a team to find a way to end such instability looking at nine issues – including ethnic antagonism, corruption and devolution – thought to be among the greatest challenges since the country became independent in 1963.
And this taskforce is expected to release its final report soon.
Yet the Infotrak poll shows that 60% of Kenyans are not keen on another constitutional review, wanting instead the constitution they voted for in a referendum in 2010 to be respected.
They would prefer their politicians to rule in accordance with the laws they have, agreeing with Russian writer Leo Tolstoy who once said: “Writing laws is easy, but governing is difficult.”
Now that the government has initiated work on a new constitution, the background strategies are already at work. The drafting of the new constitution will commence after the enactment of the 20th Amendment.
The government, at the first meeting of the Cabinet of Ministers, decided to abolish the 19th Amendment and to bring in the 20th Amendment to the Constitution. Cabinet spokesman Keheliya Rambukwella told reporters, “The Cabinet decided to repeal the 19th Amendment and we will bring in the 20th Amendment. However, we will carry forward some good things from the 19th Amendment to the 20th Amendment. Under the 19th Amendment right to information was made a fundamental right and this will be safeguarded.”
The Cabinet appointed a five-member sub-committee to formulate the 20th Amendment. The members of the sub-committee include Education Minister Prof. G.L. Peiris, Foreign Relations Minister Dinesh Gunawardena, Labour Minister Nimal Siripala de Silva, Justice Minister Ali Sabry and Energy Minister Udaya Gammanpila. The sub-committee is to submit their observation to the Cabinet.
Foreign attempts to influence in internal affairs of Sri Lanka is not something new. Not surprisingly, foreign envoys commenced discussions with senior leaders of the Sri Lankan government and opposition, the moment it was announced that a new constitution would be enacted. Last week, US Ambassador Alaina Teplitz called on Prime Minister Mahinda Rajapaksa and Indian High Commissioner Gopal Baglay held discussions with leaders of Tamil National Alliance (TNA). There were series of courtesy calls on newly appointed Foreign Affairs Minister Dinesh Gunawardena, Law Minister Ali Sabry, Speaker Mahinda Yapa Abeywardane, and Opposition Leader Sajith Premadasa.
At a time when many foreign powers are interested in the proposed new constitution, the aspiration of the people is for a Sri Lankan solution to the issues concerning the Constitution of Sri Lanka and not for a foreign-bred deal. The failures of externally formatted packages have failed to find a lasting solution in the past. Norway brokered a peace deal between the government and the LTTE failed as that was not a solution people wanted. Earlier this week, former Norwegian peace negotiator Erik Solheim made a confession that his mission was doomed to fail. He acknowledged that Norway wanted an agreement based on a federal solution, but LTTE was totally against anything short of a separate state. Solheim, who defended Tiger terrorists and their vision of the so-called ‘Tamil cause’ for over three decades, finally acknowledged that he knew that the Tiger supremo Velupillai Prabhakaran had ordered the killing of former Indian Prime Minister Rajiv Gandhi. Keeping such evidence a secret for nearly 30 years, Solheim is guilty of suppression of evidence in a murder case. That also shows his partiality towards the LTTE.
Another foreign interference was the Indian ‘parippu’ drop. The Indo-Sri Lanka Agreement of 1987, which was a result of the parippu drop and the blatant violation of Sri Lankan air space, could not enforce peace because the LTTE terrorists commenced fighting with the Indian Peace Keeping Force (IPKF) that was deployed in the north and east to supervise peace.
When Tamil United Front (TUF) was formed following Vaddukoddai Resolution in 1976, the Ceylon Workers Congress (CWC) of Saumiamurthi Thandaman also joined it. But when its separatist agenda became evident Thondaman left it. Subsequently, Thondaman joined the J R Jayewardene government as a cabinet minister. He found that he could serve his people by cooperating with the government. “Little now, more later,” he said and proved that he could get more concessions from the government when he was part of it. His sane advice to the Tamils of the north and east was also to cooperate with the government and serve their people.
Now that a new constitution is to be drafted, the Tamil leaders would get a lifetime opportunity to be a stakeholder of the new constitution. Fortunately, there are many moderates among the Tamil MPs in the new Parliament. The first Sri Lanka Freedom Party (SLFP) MP from Jaffna district for over four decades, Angajan Ramanathan, who topped the vote list in Jaffna and the long-standing Jaffna MP Douglas Devananda, leader of Eelam People’s Democratic Party (EPDP) has joined the government, the former as Chairman of Jaffna District Committee and the latter as a Cabinet Minister. The National List MP Suren Raghavan too is moderate and he can make a positive contribution to constitution drafting. His experience as Governor of North will be useful in this task. Only two MPs, C V Wigneswaran, leader of Tamil Makkal Thesiya Kutani (TMTK), and Gajendrakumar Ponnambalam, leader of Ahila Illankai Tamil Congress (AITC) indicated that they would not cooperate.
SLFP MP Angajan Ramanathan lamented that Wigneswaran’s inappropriate comment when the MPs were given the opportunity to wish the newly elected Speaker. “Mr. Wigneswaran, by using the floor of the Parliament in his first speech to talk about communal issues, displayed that he did not want to work genuinely for solving the issues of the Tamil people and work for development and progress. He has conveniently forgotten that Jaffna people have expressed confidence in a national party candidate by giving me more votes than any TNA candidate, Wigneswaran or Ponnambalan,” Ramanathan said.
Devananda said the Tamil community wouldn’t benefit from such attacks on the government. He asked whether such a talk would help the Tamil community to realize their aspirations and solve problems. The EPDP leader emphasized the importance of working with the government.
Wigneswaran, a former judge of the Supreme Court, conveniently forgot that assurance given by President that he was the President of all the citizens of Sri Lanka and every citizen living in Sri Lanka has the right to live freely and securely. “We will always ensure their right to think freely, hold independent opinions, and express themselves without any hindrance. We will always respect the right of any citizen to follow the religion of his or her choice.
Every citizen has the right to free association and of free assembly. We will always defend the right of every Sri Lankan citizen to participate in the political and governance processes through his or her elected representatives. We consider all these as rights of human beings that no one can challenge,” the President said in his address to the nation on Independence Day on February 4, 2020.
The moment Wigneswaran and Ponnambalan displayed their Tamil extreme tendencies in Parliament, pro-LTTE Tamil Diaspora voiced their support to the two MPs. The UK based Global Tamil Forum (GTF) extended cooperation to Wigneswaran’s TMTK and Ponnambalan’s Ahila Illankai Tamil Congress (AITC).
GTF spokesperson Suren Surendiran hailed Wigneswaran and Gajendrakumar for taking a strong stand in respect of the 13th Amendment as well as for raising the accountability issue in parliament during a debate on President Gotabaya Rajapaksa’s policy statement.
The Tamil people need a solution and not rabble-rousers like Surendiran, Vigneswaran and Gajendrakumar Ponnambalan. The people will certainly extend the fullest support to Tamil politicians to cooperate with the government even under the late elder statement Savumiamoorthy Thondaman’s concept of ‘Little now, More latter’ concept, as it would help to remove the grievances of people and raise their living standards.
The construction union has been fined $126,000 and three of its officials have been personally penalised for illegally protesting at a major building site in Canberra.
Officials from the ACT branch of the Construction, Forestry, Mining and Energy Union were picketing outside the Constitution Place construction site in Canberra’s CBD
Site managers were forced to use bolt cutters to gain access through the gates that were chained shut
The Federal court fined CFMEU ACT secretary Jason O’Mara and assistant secretary Zachary Smith $12,600 each and ordered organiser Joshua Bolitho to pay $8,400
The Federal Court heard that in May 2018 gates to the $300 million 12-storey Constitution Place project in the middle of Canberra were locked and chained as more than 20 protestors linked arms to block access to the entrance.
Site managers were forced to use bolt cutters to gain access through the gates and police were called to the two-hour long demonstration that prevented a busload of workers from entering the site in the early hours of May 15.
Management also asked officials from the ACT branch of the Construction, Forestry, Mining and Energy Union (CFMEU), who had organised the picket, to remove cars parked in front of the site but they said they had lost their keys.
On Tuesday the court fined CFMEU ACT secretary Jason O’Mara and assistant secretary Zachary Smith $12,600 each, and ordered organiser Joshua Bolitho to pay $8,400 for his part in the unlawful picket.
Federal Court judge Justice Anna Katzmann ordered the trio personally pay the fines to prevent the union from paying them.
“None of the men expressed contrition or gave any indication that he would not reoffend if the opportunity arose again,” Justice Katzmann said.
“Unless the burden is imposed on them, they will not feel any sting of the court’s orders.”
She said previous penalties had not deterred the union and the CFMEU’s ACT branch believed paying penalties was the cost of doing business.
“In the absence of evidence to the contrary and in the light of its appalling record, the inference is open that the union has done nothing to encourage its officers and employees to comply with laws that stand in the way of its industrial objectives,” Justice Katzmann said.
The CFMEU has declined to comment.
Second penalty against CFMEU under anti-picketing laws
“This case is a further example of the union taking the law into its own hands,” Australian Building and Construction Commission (ABCCC) commissioner Stephen McBurney said.
“There was a clear, alternative and lawful path to follow, this was the dispute resolution clause in the relevant enterprise agreement, but the union was not prepared to wait to allow the agreed procedure to run its course.”
Anti-picketing laws were introduced by the Federal Government in 2016 when it restored the ABCC.
The penalty against the CFMEU is the second decision handed down by the Federal Court using the legislation.
In December 2019, the CFMEU was fined $270,000 for unlawfully picketing two Melbourne construction cites in 2017.
A further three cases accusing the union of unlawful picketing have been filed by the ABCC.