A man lost his position in parliament the other day.  

What was his offence?  He had, it was said, done something that was ‘inappropriate’.  The conduct alleged  involved touching women.  Except that the women reacted in ways that they thought was appropriate, no details were given by which the electors could determine by what criteria the conduct was said to be not ‘appropriate’. 

Such conduct could be improper conduct or just bad conduct.  Or, perhaps, conduct that might give offence.  It was certainly not suggested that the lack of propriety made the conduct illegal.  We don’t know if the actual conduct might be compared to a breach of table manners, or something serious.

Before a government acts to deprive a person of their position, it must tell the person what its grounds are, and afford the person the right to be heard in answer.  That has been the law for more than 800 years.  It came to be called due process.

Due process was not given here.

Nor was it given to the former premier of New South Wales.  After a period of delay, the presumption of due process lapses.  The delay in that inquiry was both cruel and unconscionable, and grossly unprofessional. 

In my view that misconduct was far more reprehensible than the conduct alleged against the lady the subject of the investigation.

Van – Berejiklian

Antony and Cleopatra is a tragedy where the leading characters see the writing on the wall from the first scene – but they had been doing most of the writing.  (Someone else used that line.)

The play begins with a soldier bemoaning that Antony has succumbed to ‘a gypsy’s lust.’  The two lovers have a lot in common, and are made to detonate each other, but I will concentrate on Antony – for reasons we will come to.

Antony is leading member of the ruling class and believes that he is destined for greatness.  He is of the kind that likes the term ‘destiny’ – something of an actor.  We could not say that he was born to the purple, because his nemesis, Octavian, had not yet become emperor and invested that office with that colour.

He very much focuses on himself.  That is part of being an actor – a star in fact.

He has rarely in his life, public or private, been checked or held responsible.  Is he fit for the day-to-day business of government?

The trouble is that he is a playboy.  (An older English critic said he was a ‘sportsman’.)  He is a fighter, a womaniser, and he loves the company of strong men.

He badly overestimates his capacity to govern.  Fighting battles and wars is not hard if you have the equipment.  Running government, or, more importantly, surviving in faction fights that get you there, are very different.  That requires patience and judgment. 

Antony is short on both.  And his indulgence in the gay life, his self-interest, and his lack of being held to heel, make him a bad bet for political office.

He and his partner have very short fuses.  But both Antony and Cleopatra can be flighty and ill-tempered when they do not get their way.

They are like spoiled children who live in their own world.  It is one of delusion, a form of retreat.  You wonder whether they take their masks off even in bed.

They can be downright cruel to those under them – which is almost everyone.

Antony is a gambler and a reckless decision maker.  So is Cleopatra.  But they are both bad losers, and whimper that they are victims when they are down.  (They might each attract from a psychiatrist a query about manic depression.)

Antony can proudly disdain accepting advice from those who know.

As such, he is a sitting duck for the cool, calculating numbers man – and Octavian is the prototype.  (Gibbon called him ‘the crafty tyrant’).  Octavian wipes the political floor with Antony and his mistress.

His close subordinates are apt to desert him and walk away – in a world that puts loyalty before all else.

He can get into shocking domestic fights with his bed partner, who mirrors many of his traits.  (And in those days, there were no police to call for a ‘domestic.’)

And he is capable of losing it – just cracking – under pressure – as is his mistress also.

The two key terms are excess and vanity – or emptiness.  Tony Tanner said that they were most themselves when playing themselves.

You can make your own comparison of Antony and Boris Johnson.  I specifically exclude any comparison of Carrie with Cleopatra. 

But at least Antony was a real soldier and general – and a man’s man. 

Boris is consigned to the realm of Bozo the Clown.

In beliefs about what is ‘right’ or ‘important’ in the life of our community, views will differ widely.  Two are connected.  Do we want to have more or less government interference in our lives?  Do we trust government, or are we pessimistic about its role in our lives? 

One side may be labelled as ‘progressive’ or ‘liberal’.  The other side may be labelled as ‘conservative’.  But any label may be misleading, and each of these is likely to confuse or mislead.

In England, the two different approaches were sought to be found  in two parties – the Liberal Party and the Conservative Party.  In Australia, the Liberal Party tries to do both.  That is a problem.  It is hard to envisage a ‘conservative’ in a ‘liberal’ party without mangling both terms.  And this is a problem shared across the three main parties in England now.

What does ‘conservative’ mean now in Australian politics?

The Oxford Definition of Philosophy states the issue:

Conservatism.  Originally in Burke an ideology of caution in departing from the historical roots of a society, or changing its inherited traditions and institutions.  In this ‘organic’ form, it includes allegiance to tradition, community, hierarchies of rank, benevolent paternalism, and a properly subservient underclass.  By contrast, conservatism can be taken to imply a laissez-faire ideology of untrammelled individualism that puts the emphasis on personal responsibility, free markets, law and order, and a minimal role for government, with neither community, nor tradition, nor benevolence entering more than marginally.  The two strands are not easy to reconcile, either in theory or in practice.

That is still spot on here.  If you look at Brewer’s Dictionary of Phrase and Fable, for ‘conservative’ you get:

One who essentially believes in amending existing institutions cautiously and who opposes doctrinaire changes.

That states the view of  the patron saint of conservatives, Edmund Burke, in his tract about the pitfalls of the French Revolution. 

The critical word is ‘doctrinaire’.  The English were appalled at the notion of rapid change driven by doctrine or dogma – which is exactly what they saw behind Rousseau and Robespierre over the Channel in France. 

They preferred the slow movement by experience – trial and error.   That is one aspect of the fundamental difference in world views on either side of the Channel.  The English favour the empirical approach.  The French and Germans favour the rationalist approach.  It resembles the difference between the common law and Roman law.  It is a difference that runs very deep but is little noticed, or at least commented on, by either side.

What is it to be doctrinaire?  According to the Shorter Oxford English Dictionary:

 One who tries to apply some doctrine without sufficient regard for practical considerations; a pedantic theorist.

That about states the difference in the two states of mind on either side of the Channel.

It is therefore hard to see how the word ‘conservative’ might be safely applied in Australian politics.  (The reference to ‘subservient underclass’ would not go down well anywhere now.)  The Liberal Party in Australia is not ‘conservative’ in the way that the English Tory Party was.  What part of its platform is ‘conservative’ in a way that may not be found in the platform of the Australian Labor Party?

But we find in what may be called the commentariat – parts of the press and some think tanks – people who like to style themselves ‘conservative’ when they are not entitled to do so – even on the loosest connotation of that term.  Examples can be found in the Murdoch media and in the Institute of Public Affairs (the IPA).

The most obvious disqualification is that these people are doctrinaire.  To go back to the definition, each is ‘one who tries to apply some doctrine without sufficient regard for practical considerations; a pedantic theorist’.  They are all heavily into ideology.  An outfit like the IPA lives and breathes ideology. 

For the term ‘ideology’, the Oxford English Dictionary has ‘ideal or abstract speculation; visionary theorizing.  A system of ideas concerning phenomena; especially those of social life; the manner of thinking characteristic of a class or individual’.  The Macquarie has ‘the body of doctrine, myth and symbols of a social movement, institution, class or large group’.

The English did not make the common law and their constitution, which we have inherited, by applying  ideology.  Neither did we.  The contrary is the case.  As mentioned, the English preferred slow advances by experience based on trial and error.  Ideology only started at Calais.  And it is not our schtick either.

That is the reason that these ideologues don’t appeal to most Australians.  Most people here would have more time for the Salvos than for the IPA. 

And that, in my view, is also the reason that Brexit has proved to be such a dreadful mess in practice.  It was brought about by well-off ideologues going in quest of some imaginary holy grail called ‘sovereignty’ – when an education at Eton and Cambridge did not preclude the faithful from engaging in deceit. 

And their Antipodean followers lapped up every bit of it.  They actually called it ‘people power’.

Sir Lewis Namier knew more than most about the history of political parties in England.  In commenting on the difficulty of distinguishing between Tories and Whigs in the eighteenth century, Namier said that ‘parties at all times rest on types and connections rather than intellectual tenets’.  (He also referred to an observation that the tradition of the eminence of territorial magnates was ‘comically built on birth, acres, tailoring, style, and an air’.)

The word ‘sniper’ is a term of abuse in Australian football.  It describes the kind of player who will strike an opponent off the ball.  (The Police ended up calling on the worst proponent.)  It comes to mind with these would-be conservatives.  They are not so much interested in what they are for, as in what they are against.  And they tend to be more against people than policies.  If you asked them to catalogue their enduring contributions of substance to our political life, I would be most interested in their response.  If you had to settle on one label, it would be ‘reactionary’.

They have a very strong contrarian nature.  It’s as if they had been claims managers for mongrel insurers in a previous life.  They are nay-sayers, not ay-sayers.  And they may well envy a lot of those on whom they comment.  Deep down they may be haunted by the prospect that those who can, do; those who can’t, just sit and watch.

The bad guy in Much Ado is Don Pedro.  He is born to thwart others.  Claudio refers to ‘mischief strangely thwarting’.  That is the correct term for fake conservatives who just get in the way.

The need to say No to something proposed by people they see as adversaries is nowhere better shown than in their advocacy of a No vote on the First Nations referendum.  What was the question they asked themselves before coming up with this answer?   And would they have come up with the same answer if the Liberal Party had proposed the referendum?

We may be looking at a very unattractive snowball here.  If the champions on the No side prevail, those on the other side will not forgive them.  And so the Liberal Party will be even more on the nose and unelectable.  And disabled from properly performing its role as His Majesty’s opposition.  That is very worrying.  They are now only in government in Tasmania, and they do not look healthy anywhere.

Their bogey-man is excessive government intervention ultimately represented by what they call ‘socialism’.  You can have that kind of chatter in the U S, but it is very difficult here and in the U K.  The tradition of ‘benevolent paternalism’ goes back at least to the feudal system.  The whole feudal compact depended on the notion that both lords and vassals had obligations as well as rights. 

We may have a sense of compassion for those not doing so well – like the sick, the aged, or the unemployed – but we go further and recognise that it is a function of government to look after such people.  We think that they deserve more than just our sympathy, and that they need and that they should get help from us through our government.

The English had accepted that view about the responsibility of government for looking after the poor from at least the time of Queen Elizabeth I.  That notion never took hold in the New World over the water.  The United States began as commercial ventures mounted  by stern Puritans.  They saw both success and failure as coming from God.  The Puritans were gladly ushered out of England – they were shutting pubs and theatres down – but they had the numbers in America.  And it shows.

In the sixteenth century, before white people had even seen America, the English people had assumed obligations for their poor that would have been abhorrent to their Puritans back then, and which still look at best alien to Americans today.  By 1563, the English had made a law for the compulsory levy for the maintenance of ‘impotent, aged and needy persons’.  The English saw the need to look after these people since a prime function of the government was to keep the King’s Peace.

The English therefore accepted that the poor were ‘a charge on public benevolence,’ and that responsibility in the matter could not be left to the conscience of the individual, but must be enforced by law upon the community as a whole. 

The distance from this old English position to that in America now is as deep as the Atlantic.

What is sometimes called the Welfare State is an essential part of our governance.  It is in practice irremovable here.  That has never been so in the U S.

In June 1908, Lloyd George, the son of a Welsh cobbler,  introduced a bill for an old age pension to the House of Commons.  In doing so, he stated the premise of what came to be called New Liberalism. He said that the problems of the sick and unemployed were problems ‘with which it is the business of the State to deal’.  That statement would be seen as dangerous heresy today by many if not most in government in the U S. 

Lloyd George was joined in what became a bitter and nation defining campaign by Winston Churchill.  Both were members of the Liberal Party, although Churchill had been a member of and would return to the Conservative Party. 

They were in part following the example of Bismarck in Germany.  And it is not often that you hear the Prussian Juncker, Count Otto von Bismarck, the Master of Europe, decried as a socialist, or a trendy Lefty.

So, we are not now called on to justify the role of government in looking after the infirm or the unemployed.  That is just a fact of life, and Australians know that the simplest way that you can commit political suicide in Australia is by proposing to cut back on some such area of government intervention. 

So, banging on about ‘socialism’ doesn’t wash here.  We can put aside the disaster of contemporary America.  Insofar as ‘socialism’ meant putting the means of production under social control, it has not been an issue in Australia for half a century.  Insofar as it may have any other meaning, it is just slippery and dangerous.

Now the hostility of the would-be ‘conservatives’ seems mainly directed at the Australian Labor Party. 

There is a variety of sources for that hostility. 

For some, it comes like the footy team they barrack for – from their home.  For some, it comes from the church they go to, especially if they enjoy a throwback to the Split.  (A ‘Left-Wing Catholic’ is virtually a contradiction in terms.) For some, it comes from membership of or service to the Liberal Party.  For each of those, there is a tribal connection. 

For some, it comes from the proprietor of their part of the media.  For some,  it is just their business model to get paid a lot to stir the possum for members of the tribe – they really couldn’t care less. (We are now seeing this in sports journalism.  The market is so crowded that some will say just about anything to get in the paper.)  For some, it comes from falling out with the Labor Party. 

For many, it comes from their social insecurity or immaturity – they fear that their status in the middle class may be compromised if they are seen to support a movement associated with blue collars and trade unions.  Another term is snobbery. 

But whatever the source, it does not lead to a coherent adherence to a political outlook that could decently be described as ‘conservative’.

The major disqualification of almost all in this group is that they dismissed or underrated the risks we face in the change of climate.  In doing so, they have failed to conserve the planet, and to an extent that is causing real trouble.  And they continue to do so in the worst way – by preferring dogma and doctrine to empirical evidence.

Conservative people are not what are called ‘populists’ – those who canvas for public support by appealing to what they call ‘ordinary’ people against those whom they decry as ‘elites’.  They regard their citizenship as a very valuable asset, and they are unwilling to share it.  They are very often bent on division in the community, and are willing to target migrants, and those people of different colour or sexuality.  All of us, it seems, need to have at least someone to look down on.

‘Populists come to power by saying their opponents are crooks – see Trump and Clinton – and then behave like worse crooks.’

Most of those who are attracted to people like Nigel Farage or Donald Trump are those who have not had many big wins in life.  They want to look askance at those above them and treat with contempt those that they regard as beneath them.  The phrase ‘winners are grinners’ illuminates the righteous anger of those at MAGA rallies.  Farage helped confect the Brexit campaign by exploiting the aversion of some in England to migrants.  And he did so shamelessly, and the Tories just looked the other way – even the high-minded boys from Eton.

The followers of the populists get a charge out of people like Trump or Farage getting away with saying things that are divisive about people of a different colour, faith, or sexuality.  Between them all, they brought us the term ‘dog whistling’.

The followers are not fully grown politically.  They cannot abide doubt, and they look for the mythical strong man to provide the answer – and to enforce it.  They are suckers for conspiracy theories and religious sects that look so sadly fake.  These people must prompt serious reflection on the education system that unleashes such credulous adherents of mountebanks.

The quest for certainty in political life is fraught.  Robert Shrimsley said this in the Financial Times:
This is not a complaint about Brexit, Corbynism or Scottish independence per se, though I disagree with all three. It is about the fusion of certainty with unfeasible radicalism. For certainty, unlike conviction, struggles to coexist with pragmatism and compromise.  What marks the leaderships of Johnson, Corbyn and Sturgeon (one might add Liz Truss) is the primacy of a revolutionary zeal that refuses to be tempered by economic and political realities, combined with fanatical supporters and the concentration of power in a purist vanguard. 

People who struggle in the race of life often succumb to envy of those who don’t.  And envy looks to be a driver for both the populists and those whom they attract. 

The first loathe the ABC.  It is a government construct, funded by taxpayers.  It is not run for profit, but to provide a community service, and will obviously have a very different approach to one that is run for profit.  This unnerves the ideologues of free enterprise who envy the ABC because it is more trusted in the community at large.

It is absurd to suggest that Trump or anyone supporting him may be described as ‘conservative’.  He was out to trash the joint from the start.  Now he wishes to overturn the whole state of the union.

Trump is a common garden, two-bob crook.  Boris Johnson was not much better.  And in his departure from Parliament, he is looking and sounding more and more like Donald Trump. 

They are both nostalgic jingoists, but Johnson comes from the definitively ‘elite’ part of society.  No decent club would have Trump as a member.  Johnson has no idea of the problems faced by most people who vote for him, and his connections insulate him from the risks he takes with their money. 

(Autocrats are gamblers by nature.  Napoleon and Hitler are terrible examples.  And since they only care for themselves, that narrows the arc of their responsibility to about zero.)

Only a lunatic would suggest that either Trump or Johnson might dabble in ‘benevolent paternalism’.  And now each claims to be a victim of the system!

Both behaved appallingly in office and treated so much of the customs and conventions of their nation with contempt.  That is the precise reverse of what is entailed by the notion of ‘conservative’. 

Each is a spoiled child who has never been driven to act responsibly, and on that ground alone is unfit for public office, and disqualified from claiming the label ‘conservative’.

In the Australian context, it is best to pass over the recent history of members of the Liberal Party in silence.

The tribes that make up these ‘conservatives’ interlink and they have common call signs including activist, broad church, cancel culture, core, draconian, elite, flipflop, holistic, identity politics, jihad, Left, libertarian, Marxist, political correctness, Right, socialism, sovereignty, weaponize, Western Civilisation, and woke. 

Some of them can’t help themselves in their pursuit of the doctrinaire and issues, commonly called ‘culture wars’, that most of the electorate could not care less about. 

The press reported that two former Liberal prime ministers had joined the modestly dubbed Alliance for Responsible Citizenship led by Jordan Peterson. 

Their ‘vision document’ says: ‘We at ARC do not believe that humanity is necessarily and inevitably teetering on the brink of apocalyptic disaster. We posit, instead, that men and women of faith and decisiveness, made in the image of God, can arrange their affairs with care and attention so that abundance and opportunity could be available for all.’  The document asks how it might ‘effectively conceptualise, value and reward the sacrificial, long-term, peaceful, child-centred intimate relationships upon which psychological integrity and social stability most fundamentally depend.’ Peterson has said a model for this was ‘something approximating the nuclear family’ with ‘long-term, committed, stable heterosexual marriages sanctified by the community’.

That kind of bullshit can be trafficked in North America, but here it is hard to imagine anything more offensive or irrelevant.  It wouldn’t go down too badly at a meeting of the KKK. 

And it is plain murder of sense and the English language.  Of the kind you can get when one with a law degree, but who has never practised law, condescends to posit gloom and doom at the hands of those who stand for the great unwashed.

It is to this kind of level that the Liberal Party in Australia has now come.  And it is the false conservatives who are making  the Liberal Party more and more unelectable, especially in Victoria. 

A two-party democracy only works if both parties do their job.  We have here a serious flaw in our political life.  The Liberal Party in Victoria is very small, and its current problems suggest that it is not fit to represent anyone.  It has the job of opposing a government that has been there for a long time – too long for the taste of many.  The Victorian branch is thought to have 12,000 members.  Three AFL clubs have more than 100,000.

It was in a book about the French Revolution – Leaders of the French Revolution – that the wonderful English historian, Dr J M Thompson, set out the ground rules for a party in opposition.

…an Englishman …. has been trained to exercise his party spirit in the game called the Party System; and among the rules of that game – not always observed [1929] as they should be – are the obligation to sink personal differences in party loyalties, not to criticise your opponent’s policy unless you have a better one that you are prepared to carry out yourself, and in case of national crisis, to help rather than hinder whatever government may be in power.  But party politics in the French Assembly meant a very different thing….so majority legislation might be merely partisan, and minority criticism merely destructive and irresponsible.

The last sentence encapsulates the roles played by Republicans in the U S, and by too many so-called conservative politicians in Australia.  Obstructionism for the sake of it gets nobody anywhere.

And this is the major charge against those people who engage in obstructionism.  The game is played by rules and conventions.  These people refuse to abide by them. They thereby set about undermining our whole system of governance.  That is a flat repudiation  of conservatism.  Edmund Burke, Disraeli and Churchill  would be horrified.  (There is little point in referring to Menzies, since he gets claimed by all factions, and it would be grossly indecent to mention Trump and Lincoln in the same breath.)

The Liberal Party in Australia is not even close to fulfilling the role of opposition at either federal or state levels, and the fake conservatives seem intent on keeping it that way.

Politics – conservatism – populism – IPA – Murdoch Press.

Our constitution here in Australia derives from the English.  They settled theirs in 1689 with the Bill of Rights.  The issue had been: who is in charge: the Crown (the monarch) or Parliament (the people)?  But another and more lethal source of division had afflicted the nation since Henry VIII divorced England from the Church of Rome. 

The two issues came to a head under the last English Catholic king, James II.  He sought to use his powers as king to advance the cause of the Church of Rome.  (His father had done the same, but in secret.)  The conflict of interest was palpable.  He was the head of the Church of England and bound to advance its interests.  But his church told him that his Protestant subjects were heretics who were doomed for eternity unless he saved them. 

There had to be a revolution and there was.  The English call it the Glorious Revolution. 

The schism in Christianity had brutal effects across all Europe that lasted centuries.  The bible is right.  A servant cannot have two masters.

Any member of the executive arm of government must avoid conflicts of interests.  If your religion forbids you to kill someone, you cannot join the army.  The same goes for judges.  If your religion puts you in a position of conflict with upholding and applying the existing law – about, say, the termination of life through execution or abortion – then you are not fit for that office. 

And you are even more unfit for that office if you accept it on the undeclared premise that you will submit to your religion and let it cause you to assist in changing the law that you have sworn to uphold.

Most Australians regard Donald Trump as a dreadful man who has wrought terrible damage on the United States.  We are confident that such a person could never be elected here in Australia.  But our faith in the U S has gone through the floor by our seeing such a man command such support among the people of America.  He pollutes everything he touches.  Just what is wrong with the Americans, we ask?

And Australian lawyers are even more appalled with the damage Trump has caused to the Supreme Court – with the willing compliance of judges who call themselves Christian – as it happens, and not coincidentally, of a denomination that holds and advocates very firm views on the number one item of political division in the nation.

If you had to model a current version of the medieval Antichrist, you could not go past Donald Trump.  What are sometime decent judges doing in helping this dark agent fulfil his bargain with so called people of God?  ‘You vote for me and turn a blind eye, while I violate all principles of decency, and I will give you judges who will change the law to please your God.’

The damage wrought by Trump on the legal system of the United States is alarmingly documented by Joan Biskupic of CNN in Nine Black Robes.  Coming from CNN, she might have a political position, but the book appears to have been meticulously prepared by a diligent reporter of long experience, with a law degree, and a big lot of sources. 

So much of it is so repellent to Australian lawyers that my digestion led me to skim read many parts.  Here are some anecdotes.  (If it matters, Wikipedia says that Joan was born to Catholic parents of Irish and Croatian descent.)

The wife of Justice Scalia said she was more conservative than her husband.  That is no small claim.  During the Trump election campaign, she put out a large yard sign supporting him.  The wives of the justices have become scene stealers in a B grade movie.

Justice Gorsuch does not come out of this well.  Given the background to his appointment, he is doomed to look to have come through the back door.  He was very preppy – but, boy, could he grovel!  Referring to his benefactor:

Your address to Congress was magnificent.  And you were so kind to recognise Mrs Scalia, remember the justice, and mention me.  My teenage daughters were cheering the TV!  The team you have assembled to assist me in the Senate is remarkable and inspiring.  I see daily their love of country and our Constitution, and know it is a tribute to you and your leadership for policy is always about personnel.  Congratulations on such a great start.

That is even more nauseating than the accolades Trump extracted from his cabinet – worse than those ritually proffered in Pyongyang. 

And the Senate inquiry into his fitness is a team game!  And this from someone who, if appointed, might have to rule against the man he is now kowtowing before.

Justice Barrett, a one-time clerk to the ultimate sectarian reactionary, Justice Scalia, thought that Catholic judges opposed to capital punishment should recuse themselves rather than impose a death sentence.  She distinguishes misgivings about abortion. 

If you are going to face those moral quandaries, why take the job?  

Well, on that the book is very clear.  Ambition drives all these people almost from birth in a way that makes Lady Macbeth look like a mild amateur dilettante.  The way they trail their coats is revolting.  They would all be laughed out of town here or in London.

Even the balanced Justice Kagan thought it would be a good idea to go shooting with Justice Scalia – and shoot herself a deer.  ‘You know the NRA has become quite a presence in judicial confirmations, and that means …both Republicans and Democrats ask you about your views on the Second Amendment.’  It is remarks like that that lead people in Paris, Berlin and Rome to think that the US has not yet got over Davy Crockett.

Accordingly, when Justice Gorsuch took over the chambers of Justice Scalia, he decided to keep a large six-point elk head on the wall.  Just what passes through the minds of people who work in this building?  This court sustains laws that lead to the slaughters of school children.  Could they at least balance their décor with some photos of the infant dead?

It is not surprising, then, that a 2021 Gallup poll gave the court an approval rating of 40%.  I am not aware of any such process for our High Court or the UK Supreme Court.  The question of political alignment in those courts simply does not arise – except beyond the fringe.  And no-one would ask what is the breakdown of religious beliefs in members of our highest court.  (The closest we get to prurience is when we ask how many of them had a private school education.)

Then, by chance, the three Justices appointed by Trump got the chance to do what they were appointed to do – and they changed the law on abortion.  As I read the reports in the press, five of the six justices who voted for the change were Catholic, and the sixth was raised as a Catholic. 

It is hardly surprising that in a contest for loyalty between the nation and God, God won.  Uncle Sam is potent.  God is omnipotent.  And depending which version you choose, He might cause you agony for eternity if you let Him down.  It was to be expected, then, that the altar would prevail over the bench.

But the acquiescing judges are different to James II.  They are not losing their job as a result.  Their allegiance to their church trumped their allegiance to their law; the evil Rothbart gave his usual triumphal smirk on centre stage; but then a merciful God breathed vengeance over the land, and the decision became a political disaster for its political sponsors. 

The women of America refused to accept that their lives would be governed by ageing male clerics on the other side of the world in a church that refuses to allow women in its priesthood. 

Another problem for this religious junta on the Supreme Courtwas that their overthrow of the law involved that the team game they played against the Senate had involved them in, at best, a want of good faith.  They did not come clean about what we now know they had in mind.  They were evasive as they played the game. 

You can see from the remark of Justice Gorsuch that the government supplies a team to help them play the game with the Senate.  It is hard for other common lawyers to think of a worse way to appoint judges.  (A colleague of mine queried the fairness of the term junta, which I know can be deprecating.  The Shorter Oxford English Dictionary has: ‘A body of men who have combined for a common purpose, esp. a political purpose; a clique, faction, or cabal; a club or coterie.’)

How can you trust judges who take part in and survive that kind of political game?  Especially one like Justice Kavanaugh, who blurted about the ‘Left’ as he threw his toys out of his cot.  Before turning out at a fry-up a few days later behind the barbie in a defiantly Catholic T while sporting a smile as broad as a canyon.  

The Senate vote was of course counted on party lines.  The whole process had been defiled.  This was not a clean team game.  And nothing remotely like it could happen here or in any other nation that looks up to its judges.

Before I look at the attitude of these judges to the law and precedent, may I say something about the most abused word in the English language – ‘conservative’?

These judges claim to be conservative juristically and politically – while claiming that they are apolitical.  If you look at Brewer’s Dictionary of Phrase and Fable, for ‘conservative’ you get: ‘One who essentially believes in amending existing institutions cautiously and who opposes doctrinaire changes.’ 

That is spot on for what the patron saint of conservatives, Edmund Burke, had to say about the French Revolution.  The English were appalled at the notion of rapid change driven by doctrine or dogma – which is exactly what they saw behind Rousseau and Robespierre.  They preferred the slow movement by experience – trial and error. 

What sort of change is ‘doctrinaire’?  According to the Shorter OED, ‘One who tries to apply some doctrine without sufficient regard for practical considerations; a pedantic theorist’

That’s precisely what Trump got from what he liked to call his judges – rapid change wrought by doctrine or dogma.  And you do not have to be versed in the philosophy of Spinoza and Kant to know that any faith that turns on revelation can never command universal intellectual consent.  (It is of course silly to suggest that Trump or his boosters at Fox News are ‘conservative’ – they were out to blow up the whole system in as short a time as possible.) 

We can see the room for slippage in the notion of ‘conservative’ from the definition in The Oxford Definition of Philosophy.

Conservatism.  Originally in Burke an ideology of caution in departing from the historical roots of a society, or changing its inherited traditions and institutions.  In this ‘organic’ form, it includes allegiance to tradition, community, hierarchies of rank, benevolent paternalism, and a properly subservient underclass.  By contrast, conservatism can be taken to imply a laissez-faire ideology of untrammelled individualism that puts the emphasis on personal responsibility, free markets, law and order, and a minimal role for government, with neither community, nor tradition, nor benevolence entering more than marginally.  The two strands are not easy to reconcile, either in theory or in practice.

Well, now, let us see how the work of current ‘conservative’ justices bears on the track record of that court about other issues that touch on the dignity of each human life.  That is after all the foundation of what we call western civilisation.  It is put this way (in translation) in section 1 of the German Constitution.

Human dignity shall be inviolable.  To respect and protect it shall be the duty of all state authority.

We can deal quickly with the death penalty – something Justice Barrett thought might require recusal from Catholic judges. 

The Supreme Court of the U S allows its governments to kill people. 

That horrifies us and Europe.  And it evokes a warm smile in Moscow, Beijing, and Tehran.  It is just the kind of tear in the American fabric that leads people there to believe – and to do so with some glee – that they are dealing with someone who is at best a paper tiger and at worst a pathetic fraud.  How could judges do this while subscribing to the teaching of the man who saw a special providence in the fall of a sparrow?  The God of this American denomination is very unpredictable.

Now, let’s look at guns.  This is where the rest of the western world think the U S have gone so cleanly off the rails that we think they must be in some way mad.  And in some dreadful way, utterly without care for the lives of their children. 

It is why no Australian or European that I know would ever wish to live in the U S.  That aversion comes not so much from the fear of being shot, but that we would not want to have as neighbours people who put up with this delusional cruelty and loss of life.  Who are also the kind of people who support a person as dreadful as Donald Trump.

The trouble in the US about the ‘right to bear arms’ comes from the English Bill of Rights of 1689.  It became part of the Constitution in the U S as the Second Amendment.  It is still part of the English constitution, and part of the law of the State of Victoria, Australia. 

But to the English and us, it has nothing like the constitutional force of its appearance in the US.  As far as I know, it has never been invoked here or in the U K.  Someone who tried to raise it here would be regarded as vexatious.  Someone who tried to apply it as it is applied in the U S would be regarded as a real worry for national security. 

Why has it led to so much death and grief over there?  Because of laws put in place or sanctioned or struck down by judgments of the Supreme Court. 

It is hard to think of a more complete distortion of any separation of powers.  People vote for president (the executive) a man who will appoint judges (the judiciary) he believes will lead a court to make new laws (the legislature).  Hollywood could have blushed.

The Second Amendment reads:

A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

The English Bill of Rights is a very long document.  The relevant reference is:

… the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law …

In interpreting a written law, you look for the plain meaning of the words used – in their context, in light of their history, and the evident purpose of the law as a whole.

To understand the U S law, we need to look first at the history of the militia in England and America, and the struggle between the Crown and the people in both England and America. 

Each of the laws referred to above comes in a treaty between the subjects and their future rulers.  Each followed a revolution.  (The other great treaty we will come to in England between the Crown and subjects settled a civil war – Magna Carta.)  All three were meant to last, but we should not forget their immediate purpose and effect when looking to find the meaning of what was said at the time each document was written.

And we should look for the proper meaning and effect of what they said and did when they did – and not through the eyes of some glossator, dogmatist, or interpreter.  Karajan did not know more about the Fifth Symphony than Beethoven, and Olivier did not know more about Hamlet than Shakespeare.  It is a distortion of our times when conductors or directors seek to impose their ego on the work of the real creators.

Let us look at the militia.  We are not talking of a right to bear arms.  We are talking about a duty to have them.  Why?  To defend the kingdom and to protect the king’s peace.

The Anglo–Saxon kings had the fyrd to deal with the Vikings and others.  It resembled the kind of national service that we can still see in Israel and Switzerland.  Or the militia – part-time soldiers that we still see in England, America, and here. 

The whole feudal system depended on exchanges of obligations to look after one another – you stand ready to come armed to fight for me, and I will look after you as one of my men.  As the great legal historian F W Maitland said:

Though the military tenures supply the king with an army, it never becomes the law that those who are not bound by the tenure need not fight.  The old national force, officered by the sheriffs, does not cease to exist.

After referring to developments after the Conquest – the Assize of Arms of 1181, and the Statute of Westminster of 1285 – Maitland says that we are speaking of ‘the militia of later days.  Every man is bound to have arms suitable to his degree, down to the man who needs but have bow and arrows.’

From the earliest times of Anglo-Saxon England, both the king and the people knew the obvious – a well-regulated militia is necessary to the security of a free state, to use the terms of the Second Amendment. 

And this had to be taken with the use of arms to maintain the other principal role of the king – to maintain the king’s peace, a role at the foundation of the common law.  The fyrd was needed because England had no regular army.  Because England had no regular police, armed men were needed to give the hue and cry or form the posse comitatus (‘communal power’).  In the U S, fans of Westerns would know the latter as simply the posse.  There had not been much change in the role over the centuries and over the oceans.  (When the hue and cry was raised in England, everyone had to turn out with the bows, arrows and knives that they were bound by law to keep, and the ‘hue’ was ‘horned’ from vill to vill.  That might create problems now in the boroughs of New York.)

And these arms were held for those purposes – not for shooting ducks, robbery under arms, duelling, or shooting intruders or adulterers caught in flagrante.  And these arms were certainly not held by women, serfs, or, except with limitations, Jews.

The other link in the historical chain is Magna Carta in 1215.  The Bill of Rights was an intricate employment agreement between William of Orange and his wife and the English people.  It was a most elaborate ceremony that reads more like a wedding and a coronation.  It was performed with all the ancient pomp and circumstance that the English are so famous for.  The ceremony was held in the Banqueting Hall under the Rubens painting – and the Dutch newcomer would have known that that was the room that Charles I walked through on his way to the block. 

The proceeding made it incandescently clear that the Crown was being offered and accepted on certain express conditions.  And if a king breached his side of the agreement, there would have to be consequences. 

What might they be?

We have seen the relevant clause of the Bill of Rights.  Those immediately before and after are as follows:

… the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against the law; … the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament …

The document had previously said that levying money by the crown without grant of parliament was ‘illegal’. 

For Magna Carta, the barons knew that King John was a rat who was likely to renege.  They therefore inserted as a form of ‘security’ – in that very term – a clause saying in effect that they could appoint receivers and managers over royal property and persons, ‘ourself and our queen excepted’. 

Vladimir Putin could not have done more.  John ratted, and the pope obliged him by annulling the whole deal.  (The fact that a foreign potentate interfered with English governance by annulling its first statute was not far from the minds of the English movers of the Reformation.) 

That clause did not appear in later versions of the Charter, and it is not part of the law of the State of Victoria now.  And it could hardly have been invoked at Boston or Calcutta.  What kind of security did the English people get from the incoming royals in 1689?

Look again at the parts of the Bill of Rights above.  The people of England said to William of Orange.  ‘You can’t have any money or an army unless we agree.  But we will stay armed. as before.  If there is any conflict between us, you will certainly lose.’ 

And there has never been such conflict since, and the reference to arms has never to my knowledge been invoked in the U K, or Australia.  The settlement stuck and it worked, and it remains the foundation of the constitution of the oldest and most sedate democracy on earth.  Together with the common law and Magna Carta, it is one of the foundation stones of western civilisation, and of the English for their reputation for political genius.

But we must notice three qualifications. 

First, Catholics were expressly excluded since their divided loyalty was thought to be the cause of the revolution.  (I am not sure how many Australians know that as matters stand under the political settlement of the English Bill of Rights, neither the U K nor Australia can have a Catholic head of state.  I expect that simple courtesy means that this limitation is not dwelt on in the U S Supreme Court.)

Secondly, the reference to people keeping arms ‘suitable to their condition’ is a reference back to the fyrd and subsequent laws about the militia. 

Thirdly, the provision was of course subject to being ‘allowed by law.’  The draftsman, a junior barrister called John Somers, prudently quashed any whizz kid or trouble maker getting any fancy or dangerous ideas.  This whole document was dedicated to entrenching the supremacy of parliament, which of course was bound to make laws about the arms kept by people. 

And no sane person would think that this political compact could somehow allow people to ignore the laws of the land, much less allow some judges the right to overrule the parliament!

So much appears obvious.  If you want chapter and verse, here is Sir Jack Plumb, the leading English historian on the 17^th century. 

And, like Magna Carta of old, the Bill of Rights had its sanction clauses – there was to be no standing Army and Protestant gentlemen were to be allowed arms; the right of rebellion is implicit.  The gentry had asserted their rights.

Sir Jack would not have minded if I said that the phrase ‘the right of rebellion’ makes lawyers nervous.  The government of England then may have been centred on London, but it was carried out, if necessary by force, in the shires and in the counties by the gentry, the squires and the justices of the peace. 

In the preceding pages, Plumb had referred to the formidable social, political and judicial power in the hands of the gentry and provincial merchants: ‘… and behind this power lay the sanction of arms, for in the last resort they controlled the militia’.  As Sir Henry Capel told his fellow squires in the Commons in 1673: ‘Our security is the militia ‘that will defend us and never conquer us’.  Sir Henry Capel was right: ‘They’ were ‘us’ and the people had found their security against their Crown.

It is a fact of life for any government that if it offends enough people of substance for long enough, they may revolt.  If they overturn the government, they are heroes and nation founders.  If they fail, they get hanged for treason.  But no decent polity refers to some ‘right of rebellion’ in its constitution.  (The French did just that after 1789, and they are still suffering the consequences.) 

The English, and John Somers, were too experienced to do that.  The English always put experience over theory or ideology, and they had been house-training their kings since 1215.  They just arranged things so that if the worst came to the worst, this marriage could be put asunder by man, but only on terms favourable to the people.  They knew what sensible people of business and good lawyers know.  The best agreements are those locked away in a drawer and forgotten.

So, that is the historical background of the Second Amendment. 

It was, as its express terms show, a continuation of the preservation of the militia along the lines of that provision in the English version on which it was modelled.  The English version expressly excluded Catholics, and impliedly excluded women.  (Given the historical background, that latter issue could never had arisen.  The women of England had never borne arms – either ‘suitable to their condition’, or at all.) 

The American version was subject to an implied exclusion of any ‘rights’ extending to black people, or, I think, women.  What the Second Amendment did was similar to what the English did –it sought to ensure that no government would seek to diminish the militia and so deprive the people of the security of their ultimate capacity to use violence to remove a government that had broken its compact with the people.

I have sought to explain the meaning and effect of the Second Amendment when it was created.  That kind of approach is I understand fashionable in some quarters – although the meaning and effect of the law falls to be determined by law – and not by fashion or dogma.  (There is enough lawyer-made trouble already without our adding to it.)

May I suggest that when you look at the provision in its context and its history, there is no adequate basis for interpreting that law to have the effect of conferring private rights on the whole populace regardless of other laws?  And to do so other than for purposes served by the militia in the past, and with weapons that are not made for such purposes – and with a capacity to kill people far beyond the worst nightmares of our ancestors?

Put differently, how do you go from a law about arms for the militia applying to a small class of people, to one that confers private rights to use handguns for any purpose upon everyone – including Catholics, negroes, Jews, women and children – and lunatics?

Does anyone not believe that if the Founding Fathers came back tomorrow and saw how money, dogma, and bare faced corruption have caused others to wreak havoc under the rubric that they created, that they would just hang down their heads and cry?

It would be equally anomalous and dangerous now to interpret the Second Amendment in accordance with its original meaning and effect.  The U S has a standing army, and multiple police agencies.  No government in the world – including Russia with its Wagner Group – has any interest in allowing its people to arm themselves like soldiers so that political dissent can translate into the next civil war.  Not even the Proud Boys sought to bear their Kalashnikovs on the day of their assault on the Capitol.  And no modern police force now wants a posse.  Among other things, it might resemble a lynch mob.

That is why I have trouble seeing how the current rule in the US can be sustained on the text or in its history. 

Since writing that, I have reflected upon the troubles that afflicted us here in Australia for eighty years after the nation was born on the proper construction of s 92 of our Constitution.  It says trade between the states shall be ‘absolutely free’.  The best legal minds in Australia and England went round in circles.  In 1988, a joint judgment of the full High Court broke the Gordian knot and we have hardly been troubled since.  How did they do it?

Reference to the history of s 92 may be made, not for the purpose of substituting for the meaning of the words used the scope and effect – if such could be established – which the founding fathers subjectively intended the section to have, but for the purpose of identifying the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation from which the compact of the Constitution finally emerged.

The other rule about statutory interpretation in my view manifestly disqualifies any interpretation like that prevailing in the U S.  You do not interpret a statute so as to go against its evident purpose. 

What is the purpose of the American Constitution?

WE THE PEOPLE of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

We are back with where we started.  The first object of government is to keep the peace – within, and from without.  The phrase here is to ‘establish Justice, insure domestic Tranquillity…. [and] promote the general Welfare’. 

The current interpretation does the reverse.

If there is an answer to that argument, I have not heard it.  The Supreme Court of the United States has made laws rendering every government in that nation unable to do what it can and should do in order to preserve the peace. 

That is shocking – at least to the rest of the world.

There are lessons here for the rest of the world.  Don’t entrench provisions in the Constitution that give unelected judges, who are just about unsackable, the power to interfere with government like that.  And try to appoint judges who will not so obviously follow their religious leader.

We in Australia were not prepared to place fetters on legislative action of the federal government, except as required to distribute powers of legislation between the Commonwealth and the States.  The greatest jurist our nation has produced told a dinner of the American Bar Association at Detroit in 1942: ‘It may surprise you to learn that in Australia one view held was that these checks on legislative action were undemocratic, because to adopt them argued a want of confidence in the will of the people’. 

Sir Owen Dixon may have added that this was another departure of the U S model from that of the mother country. 

And you do not have to be a great jurist to know that having unelected judges make laws on policy grounds is about as undemocratic as you can get.

A third argument against the current U S law may not be one of law, but it is one that comes to the mind of good judges at decision time just before dawn.  Don’t allow yourself to be drawn to make a decision that confronts common sense and basic decency, and that will harm innocent people, unless you are satisfied that the law compels you to do so – after which you will resign.

Finally, these decisions are handed down to a community by people who seek to follow the teaching of Jesus of Nazareth in a community a large part of which professes to do the same.  I cannot understand how they can square what they do with any part of the Sermon on the Mount.  Little children are routinely suffered to come into mortal peril in the U S under laws made in service to Mammon. 

Christianity is no longer my faith, but my moral code is in large part built on the life and teaching of its founder.  I simply cannot understand how otherwise seemingly decent people can gather and combine to procure the appalling result about the use of guns in the U S today.

Nor can most people in the common law world or Europe.  This American failing is a terrible blow to its standing in the world.

Will you now kindly allow me some afterthoughts?

I referred earlier to various meanings of ‘conservative’.  Some people who claim that label reverse its proper denotation.  They are out to blow up the status quo.  That happened in the abortion case.  Precedent, the foundation of the common law, was shredded for ideological purposes. 

And it was done with what I must describe as the same shrill arrogance as the leading judgment in the guns case.  That kind of aggression is anything but conservative, and it would not be tolerated in London, Ottawa, or Canberra.

Haven’t these judges learned the first lesson of judging?  The most important person in the courtroom is the loser.  And the time for fighting cases stopped when they left the bar.  They are there to quell conflict, not provoke it.  You say what you have to in order to determine the case, and no more – and then call on the next case

Next, it does not appear to me that the Supreme Court was informed that Sir William Holdsworth, the English legal historian, reminded us that the Stuart kings had banned the use of hand-guns in London because of the threat they posed to the peace of the king. 

Well, if the Americans are about three hundred years behind the English, their position is worse with the Germans – well over two thousand years worse.  In his history On Germany, Tacitus said of the Germans before the birth of Christ that ‘it is repugnant to their custom for any man to use arms, before the community has attested his capacity to wield them’.  It is impossible to imagine a state of the U S trying to pass a law to that effect. 

(Here in Victoria, before I could buy rifle for target shooting, I had to attend a safety course and sit an exam, and be cleared by Police.  Then any acquisition had to be notified to Police, and kept in a secure, bolted down gun safe that the Police checked regularly.  Anything less secure would be out of the question in Australia.)

Gibbon says the Romans did not subscribe to the ‘barbarous practice of wearing arms in the midst of peace’ and refers to Thucydides and comments that the ‘historian who considers this circumstance as the test of civilisation would disdain the barbarism of a European court’. 

Finally, in 1945, when I was born, there was a big rift between Protestants and Catholics here in Australia.  It was about to get worse, and as a result we endured one-party rule here for a generation. 

There is hardly any of it left here now.  The generation after mine knows nothing of it – because there is not much left on either side.  It is just a matter of time before we follow England and see more people in the mosque than in the church. 

It is distressing that the schism appears to be lingering in the U S, and fanned by the judges in its highest court.  If nothing else, they do manage to sound dogmatic.

According to Joan Biskupic, the Catholic wing of the court is unrepentant.  Justice Alito spoke at an event sponsored by Notre Dame, and shared a friendly sneer with his co‑religionists.  Justice Barrett made a major public appearance with Mitch McConnell, the Republican hit man whose breach of convention allowed Justice Gorsuch to accept a position that should have gone to another. 

And so, their Honours adopt the partisan position of those who put them on the bench.  That is not what we expect of the arm of government that is the judiciary.

It is not surprising then that the Supreme Court has fallen low in public esteem.  Public life here and in the U S has been blighted by a lack of restraint and tolerance.  That now infects the U S Supreme Court.  It is, after all, unusual to see fiduciaries publicly celebrating their surrender to a conflict of interests.  Those justices who resolved their conflict in favour of the external ecclesiastical power shared high fives with those who seduced them.  This is a new kind of infidelity.  Justice Barrett says nothing partisan is happening, in a protest that the Queen of Denmark would have looked at askance.

And, sadly, the stain spreading from Donald Trump will just get much worse over time, and it will pollute the court for generations – or for at least the time his appointments are still there.

And now, I own up to my own prejudice.  I have raised two daughters, and I now have three grandchildren in what I believe is the best country in the world for that purpose.  The thought of trying to do so among a people who tolerate the gun laws of America horrifies me.

NOTES

The abortion case is Dobbs v. Jackson Women’s Health Organization, 597 U S, 2022.

The leading guns case is District of Columbia v Heller (2008) 554 U S 570.

The main Plumb citations are from The Growth of Political Stability in England, 1675-1725, Macmillan, 1967. 63-64.  The other remarks are at 20-22.

Maitland on militia: The Constitutional History of England, C U P, 1963, 162.

Hue and cry in England: Pollock and Maitland, The History of English Law, 1899, Cambridge, Vol 2, 578-579.

High Court on s 92: Cole v Whitfield (1988) 165 CLR 360, par. 8.

Australian jurist: Sir Owen Dixon, Two Constitutions Compared, in Jesting Pilate, Law Book Co, 1965, 102.

English ban on pistols and hand-guns: Holdsworth, History of English Law, London, 1924, Vol 4, 304.

The difficulty of keeping the peace in so crowded a centre as London was immensely aggravated by the universal practice of carrying arms.  In the Tudor period, attempts were made to stop the deadly affrays, which were so common a feature in the life of the period, by prohibiting the carrying of certain kinds of arms – such as pistols and handguns – and by regulating the kinds of weapons which could be bought or carried.  James I made a laudable attempt to stop the practice of duelling.  Quarrels accustomed to being settled by this means were for the future to be settled by the Marshal, and, to make this order effective, the carrying of daggers and pistols was forbidden.

Gibbon on wearing arms: The Decline and Fall of the Roman Empire, Folio, 1987, Vol 5, 294.  Thucydides clearly thought that wearing arms was outmoded if not barbaric – about 2,500 years ago.

Additionally, I have written a paper on what I consider to be the faults in Heller called The Dragon in the Cave, published in Looking Down the Well, Papers on Legal History, Amazon, 2015, and a paper on what I see as the failures of American jurisprudence, The American Difference, on my website.

The U S Supreme Court – A Sectarian Triumph or Tragedy?

Our constitution here in Australia derives from the English.  They settled theirs in 1689 with the Bill of Rights.  The issue had been: who is in charge: the Crown (the monarch) or Parliament (the people)?  But another and more lethal source of division had afflicted the nation since Henry VIII divorced England from the Church of Rome. 

The two issues came to a head under the last English Catholic king, James II.  He sought to use his powers as king to advance the cause of the Church of Rome.  (His father had done the same, but in secret.)  The conflict of interest was palpable.  He was the head of the Church of England and bound to advance its interests.  But his church told him that his Protestant subjects were heretics who were doomed for eternity unless he saved them. 

There had to be a revolution and there was.  The English call it the Glorious Revolution. 

The schism in Christianity had brutal effects across all Europe that lasted centuries.  The bible is right.  A servant cannot have two masters.

Any member of the executive arm of government must avoid conflicts of interests.  If your religion forbids you to kill someone, you cannot join the army.  The same goes for judges.  If your religion puts you in a position of conflict with upholding and applying the existing law – about, say, the termination of life through execution or abortion – then you are not fit for that office. 

And you are even more unfit for that office if you accept it on the undeclared premise that you will submit to your religion and let it cause you to assist in changing the law that you have sworn to uphold.

Most Australians regard Donald Trump as a dreadful man who has wrought terrible damage on the United States.  We are confident that such a person could never be elected here in Australia.  But our faith in the U S has gone through the floor by our seeing such a man command such support among the people of America.  He pollutes everything he touches.  Just what is wrong with the Americans, we ask?

And Australian lawyers are even more appalled with the damage Trump has caused to the Supreme Court – with the willing compliance of judges who call themselves Christian – as it happens, and not coincidentally, of a denomination that holds and advocates very firm views on the number one item of political division in the nation.

If you had to model a current version of the medieval Antichrist, you could not go past Donald Trump.  What are sometime decent judges doing in helping this dark agent fulfil his bargain with so called people of God?  ‘You vote for me and turn a blind eye, while I violate all principles of decency, and I will give you judges who will change the law to please your God.’

The damage wrought by Trump on the legal system of the United States is alarmingly documented by Joan Biskupic of CNN in Nine Black Robes.  Coming from CNN, she might have a political position, but the book appears to have been meticulously prepared by a diligent reporter of long experience, with a law degree, and a big lot of sources. 

So much of it is so repellent to Australian lawyers that my digestion led me to skim read many parts.  Here are some anecdotes.  (If it matters, Wikipedia says that Joan was born to Catholic parents of Irish and Croatian descent.)

The wife of Justice Scalia said she was more conservative than her husband.  That is no small claim.  During the Trump election campaign, she put out a large yard sign supporting him.  The wives of the justices have become scene stealers in a B grade movie.

Justice Gorsuch does not come out of this well.  Given the background to his appointment, he is doomed to look to have come through the back door.  He was very preppy – but, boy, could he grovel!  Referring to his benefactor:

Your address to Congress was magnificent.  And you were so kind to recognise Mrs Scalia, remember the justice, and mention me.  My teenage daughters were cheering the TV!  The team you have assembled to assist me in the Senate is remarkable and inspiring.  I see daily their love of country and our Constitution, and know it is a tribute to you and your leadership for policy is always about personnel.  Congratulations on such a great start.

That is even more nauseating than the accolades Trump extracted from his cabinet – worse than those ritually proffered in Pyongyang. 

And the Senate inquiry into his fitness is a team game!  And this from someone who, if appointed, might have to rule against the man he is now kowtowing before.

Justice Barrett, a one-time clerk to the ultimate sectarian reactionary, Justice Scalia, thought that Catholic judges opposed to capital punishment should recuse themselves rather than impose a death sentence.  She distinguishes misgivings about abortion. 

If you are going to face those moral quandaries, why take the job?  

Well, on that the book is very clear.  Ambition drives all these people almost from birth in a way that makes Lady Macbeth look like a mild amateur dilettante.  The way they trail their coats is revolting.  They would all be laughed out of town here or in London.

Even the balanced Justice Kagan thought it would be a good idea to go shooting with Justice Scalia – and shoot herself a deer.  ‘You know the NRA has become quite a presence in judicial confirmations, and that means …both Republicans and Democrats ask you about your views on the Second Amendment.’  It is remarks like that that lead people in Paris, Berlin and Rome to think that the US has not yet got over Davy Crockett.

Accordingly, when Justice Gorsuch took over the chambers of Justice Scalia, he decided to keep a large six-point elk head on the wall.  Just what passes through the minds of people who work in this building?  This court sustains laws that lead to the slaughters of school children.  Could they at least balance their décor with some photos of the infant dead?

It is not surprising, then, that a 2021 Gallup poll gave the court an approval rating of 40%.  I am not aware of any such process for our High Court or the UK Supreme Court.  The question of political alignment in those courts simply does not arise – except beyond the fringe.  And no-one would ask what is the breakdown of religious beliefs in members of our highest court.  (The closest we get to prurience is when we ask how many of them had a private school education.)

Then, by chance, the three Justices appointed by Trump got the chance to do what they were appointed to do – and they changed the law on abortion.  As I read the reports in the press, five of the six justices who voted for the change were Catholic, and the sixth was raised as a Catholic. 

It is hardly surprising that in a contest for loyalty between the nation and God, God won.  Uncle Sam is potent.  God is omnipotent.  And depending which version you choose, He might cause you agony for eternity if you let Him down.  It was to be expected, then, that the altar would prevail over the bench.

But the acquiescing judges are different to James II.  They are not losing their job as a result.  Their allegiance to their church trumped their allegiance to their law; the evil Rothbart gave his usual triumphal smirk on centre stage; but then a merciful God breathed vengeance over the land, and the decision became a political disaster for its political sponsors. 

The women of America refused to accept that their lives would be governed by ageing male clerics on the other side of the world in a church that refuses to allow women in its priesthood. 

Another problem for this religious junta on the Supreme Courtwas that their overthrow of the law involved that the team game they played against the Senate had involved them in, at best, a want of good faith.  They did not come clean about what we now know they had in mind.  They were evasive as they played the game. 

You can see from the remark of Justice Gorsuch that the government supplies a team to help them play the game with the Senate.  It is hard for other common lawyers to think of a worse way to appoint judges.  (A colleague of mine queried the fairness of the term junta, which I know can be deprecating.  The Shorter Oxford English Dictionary has: ‘A body of men who have combined for a common purpose, esp. a political purpose; a clique, faction, or cabal; a club or coterie.’)

How can you trust judges who take part in and survive that kind of political game?  Especially one like Justice Kavanaugh, who blurted about the ‘Left’ as he threw his toys out of his cot.  Before turning out at a fry-up a few days later behind the barbie in a defiantly Catholic T while sporting a smile as broad as a canyon.  

The Senate vote was of course counted on party lines.  The whole process had been defiled.  This was not a clean team game.  And nothing remotely like it could happen here or in any other nation that looks up to its judges.

Before I look at the attitude of these judges to the law and precedent, may I say something about the most abused word in the English language – ‘conservative’?

These judges claim to be conservative juristically and politically – while claiming that they are apolitical.  If you look at Brewer’s Dictionary of Phrase and Fable, for ‘conservative’ you get: ‘One who essentially believes in amending existing institutions cautiously and who opposes doctrinaire changes.’ 

That is spot on for what the patron saint of conservatives, Edmund Burke, had to say about the French Revolution.  The English were appalled at the notion of rapid change driven by doctrine or dogma – which is exactly what they saw behind Rousseau and Robespierre.  They preferred the slow movement by experience – trial and error. 

What sort of change is ‘doctrinaire’?  According to the Shorter OED, ‘One who tries to apply some doctrine without sufficient regard for practical considerations; a pedantic theorist’

That’s precisely what Trump got from what he liked to call his judges – rapid change wrought by doctrine or dogma.  And you do not have to be versed in the philosophy of Spinoza and Kant to know that any faith that turns on revelation can never command universal intellectual consent.  (It is of course silly to suggest that Trump or his boosters at Fox News are ‘conservative’ – they were out to blow up the whole system in as short a time as possible.) 

We can see the room for slippage in the notion of ‘conservative’ from the definition in The Oxford Definition of Philosophy.

Conservatism.  Originally in Burke an ideology of caution in departing from the historical roots of a society, or changing its inherited traditions and institutions.  In this ‘organic’ form, it includes allegiance to tradition, community, hierarchies of rank, benevolent paternalism, and a properly subservient underclass.  By contrast, conservatism can be taken to imply a laissez-faire ideology of untrammelled individualism that puts the emphasis on personal responsibility, free markets, law and order, and a minimal role for government, with neither community, nor tradition, nor benevolence entering more than marginally.  The two strands are not easy to reconcile, either in theory or in practice.

Well, now, let us see how the work of current ‘conservative’ justices bears on the track record of that court about other issues that touch on the dignity of each human life.  That is after all the foundation of what we call western civilisation.  It is put this way (in translation) in section 1 of the German Constitution.

Human dignity shall be inviolable.  To respect and protect it shall be the duty of all state authority.

We can deal quickly with the death penalty – something Justice Barrett thought might require recusal from Catholic judges. 

The Supreme Court of the U S allows its governments to kill people. 

That horrifies us and Europe.  And it evokes a warm smile in Moscow, Beijing, and Tehran.  It is just the kind of tear in the American fabric that leads people there to believe – and to do so with some glee – that they are dealing with someone who is at best a paper tiger and at worst a pathetic fraud.  How could judges do this while subscribing to the teaching of the man who saw a special providence in the fall of a sparrow?  The God of this American denomination is very unpredictable.

Now, let’s look at guns.  This is where the rest of the western world think the U S have gone so cleanly off the rails that we think they must be in some way mad.  And in some dreadful way, utterly without care for the lives of their children. 

It is why no Australian or European that I know would ever wish to live in the U S.  That aversion comes not so much from the fear of being shot, but that we would not want to have as neighbours people who put up with this delusional cruelty and loss of life.  Who are also the kind of people who support a person as dreadful as Donald Trump.

The trouble in the US about the ‘right to bear arms’ comes from the English Bill of Rights of 1689.  It became part of the Constitution in the U S as the Second Amendment.  It is still part of the English constitution, and part of the law of the State of Victoria, Australia. 

But to the English and us, it has nothing like the constitutional force of its appearance in the US.  As far as I know, it has never been invoked here or in the U K.  Someone who tried to raise it here would be regarded as vexatious.  Someone who tried to apply it as it is applied in the U S would be regarded as a real worry for national security. 

Why has it led to so much death and grief over there?  Because of laws put in place or sanctioned or struck down by judgments of the Supreme Court. 

It is hard to think of a more complete distortion of any separation of powers.  People vote for president (the executive) a man who will appoint judges (the judiciary) he believes will lead a court to make new laws (the legislature).  Hollywood could have blushed.

The Second Amendment reads:

A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

The English Bill of Rights is a very long document.  The relevant reference is:

… the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law …

In interpreting a written law, you look for the plain meaning of the words used – in their context, in light of their history, and the evident purpose of the law as a whole.

To understand the U S law, we need to look first at the history of the militia in England and America, and the struggle between the Crown and the people in both England and America. 

Each of the laws referred to above comes in a treaty between the subjects and their future rulers.  Each followed a revolution.  (The other great treaty we will come to in England between the Crown and subjects settled a civil war – Magna Carta.)  All three were meant to last, but we should not forget their immediate purpose and effect when looking to find the meaning of what was said at the time each document was written.

And we should look for the proper meaning and effect of what they said and did when they did – and not through the eyes of some glossator, dogmatist, or interpreter.  Karajan did not know more about the Fifth Symphony than Beethoven, and Olivier did not know more about Hamlet than Shakespeare.  It is a distortion of our times when conductors or directors seek to impose their ego on the work of the real creators.

Let us look at the militia.  We are not talking of a right to bear arms.  We are talking about a duty to have them.  Why?  To defend the kingdom and to protect the king’s peace.

The Anglo–Saxon kings had the fyrd to deal with the Vikings and others.  It resembled the kind of national service that we can still see in Israel and Switzerland.  Or the militia – part-time soldiers that we still see in England, America, and here. 

The whole feudal system depended on exchanges of obligations to look after one another – you stand ready to come armed to fight for me, and I will look after you as one of my men.  As the great legal historian F W Maitland said:

Though the military tenures supply the king with an army, it never becomes the law that those who are not bound by the tenure need not fight.  The old national force, officered by the sheriffs, does not cease to exist.

After referring to developments after the Conquest – the Assize of Arms of 1181, and the Statute of Westminster of 1285 – Maitland says that we are speaking of ‘the militia of later days.  Every man is bound to have arms suitable to his degree, down to the man who needs but have bow and arrows.’

From the earliest times of Anglo-Saxon England, both the king and the people knew the obvious – a well-regulated militia is necessary to the security of a free state, to use the terms of the Second Amendment. 

And this had to be taken with the use of arms to maintain the other principal role of the king – to maintain the king’s peace, a role at the foundation of the common law.  The fyrd was needed because England had no regular army.  Because England had no regular police, armed men were needed to give the hue and cry or form the posse comitatus (‘communal power’).  In the U S, fans of Westerns would know the latter as simply the posse.  There had not been much change in the role over the centuries and over the oceans.  (When the hue and cry was raised in England, everyone had to turn out with the bows, arrows and knives that they were bound by law to keep, and the ‘hue’ was ‘horned’ from vill to vill.  That might create problems now in the boroughs of New York.)

And these arms were held for those purposes – not for shooting ducks, robbery under arms, duelling, or shooting intruders or adulterers caught in flagrante.  And these arms were certainly not held by women, serfs, or, except with limitations, Jews.

The other link in the historical chain is Magna Carta in 1215.  The Bill of Rights was an intricate employment agreement between William of Orange and his wife and the English people.  It was a most elaborate ceremony that reads more like a wedding and a coronation.  It was performed with all the ancient pomp and circumstance that the English are so famous for.  The ceremony was held in the Banqueting Hall under the Rubens painting – and the Dutch newcomer would have known that that was the room that Charles I walked through on his way to the block. 

The proceeding made it incandescently clear that the Crown was being offered and accepted on certain express conditions.  And if a king breached his side of the agreement, there would have to be consequences. 

What might they be?

We have seen the relevant clause of the Bill of Rights.  Those immediately before and after are as follows:

… the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against the law; … the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament …

The document had previously said that levying money by the crown without grant of parliament was ‘illegal’. 

For Magna Carta, the barons knew that King John was a rat who was likely to renege.  They therefore inserted as a form of ‘security’ – in that very term – a clause saying in effect that they could appoint receivers and managers over royal property and persons, ‘ourself and our queen excepted’. 

Vladimir Putin could not have done more.  John ratted, and the pope obliged him by annulling the whole deal.  (The fact that a foreign potentate interfered with English governance by annulling its first statute was not far from the minds of the English movers of the Reformation.) 

That clause did not appear in later versions of the Charter, and it is not part of the law of the State of Victoria now.  And it could hardly have been invoked at Boston or Calcutta.  What kind of security did the English people get from the incoming royals in 1689?

Look again at the parts of the Bill of Rights above.  The people of England said to William of Orange.  ‘You can’t have any money or an army unless we agree.  But we will stay armed. as before.  If there is any conflict between us, you will certainly lose.’ 

And there has never been such conflict since, and the reference to arms has never to my knowledge been invoked in the U K, or Australia.  The settlement stuck and it worked, and it remains the foundation of the constitution of the oldest and most sedate democracy on earth.  Together with the common law and Magna Carta, it is one of the foundation stones of western civilisation, and of the English for their reputation for political genius.

But we must notice three qualifications. 

First, Catholics were expressly excluded since their divided loyalty was thought to be the cause of the revolution.  (I am not sure how many Australians know that as matters stand under the political settlement of the English Bill of Rights, neither the U K nor Australia can have a Catholic head of state.  I expect that simple courtesy means that this limitation is not dwelt on in the U S Supreme Court.)

Secondly, the reference to people keeping arms ‘suitable to their condition’ is a reference back to the fyrd and subsequent laws about the militia. 

Thirdly, the provision was of course subject to being ‘allowed by law.’  The draftsman, a junior barrister called John Somers, prudently quashed any whizz kid or trouble maker getting any fancy or dangerous ideas.  This whole document was dedicated to entrenching the supremacy of parliament, which of course was bound to make laws about the arms kept by people. 

And no sane person would think that this political compact could somehow allow people to ignore the laws of the land, much less allow some judges the right to overrule the parliament!

So much appears obvious.  If you want chapter and verse, here is Sir Jack Plumb, the leading English historian on the 17^th century. 

And, like Magna Carta of old, the Bill of Rights had its sanction clauses – there was to be no standing Army and Protestant gentlemen were to be allowed arms; the right of rebellion is implicit.  The gentry had asserted their rights.

Sir Jack would not have minded if I said that the phrase ‘the right of rebellion’ makes lawyers nervous.  The government of England then may have been centred on London, but it was carried out, if necessary by force, in the shires and in the counties by the gentry, the squires and the justices of the peace. 

In the preceding pages, Plumb had referred to the formidable social, political and judicial power in the hands of the gentry and provincial merchants: ‘… and behind this power lay the sanction of arms, for in the last resort they controlled the militia’.  As Sir Henry Capel told his fellow squires in the Commons in 1673: ‘Our security is the militia ‘that will defend us and never conquer us’.  Sir Henry Capel was right: ‘They’ were ‘us’ and the people had found their security against their Crown.

It is a fact of life for any government that if it offends enough people of substance for long enough, they may revolt.  If they overturn the government, they are heroes and nation founders.  If they fail, they get hanged for treason.  But no decent polity refers to some ‘right of rebellion’ in its constitution.  (The French did just that after 1789, and they are still suffering the consequences.) 

The English, and John Somers, were too experienced to do that.  The English always put experience over theory or ideology, and they had been house-training their kings since 1215.  They just arranged things so that if the worst came to the worst, this marriage could be put asunder by man, but only on terms favourable to the people.  They knew what sensible people of business and good lawyers know.  The best agreements are those locked away in a drawer and forgotten.

So, that is the historical background of the Second Amendment. 

It was, as its express terms show, a continuation of the preservation of the militia along the lines of that provision in the English version on which it was modelled.  The English version expressly excluded Catholics, and impliedly excluded women.  (Given the historical background, that latter issue could never had arisen.  The women of England had never borne arms – either ‘suitable to their condition’, or at all.) 

The American version was subject to an implied exclusion of any ‘rights’ extending to black people, or, I think, women.  What the Second Amendment did was similar to what the English did –it sought to ensure that no government would seek to diminish the militia and so deprive the people of the security of their ultimate capacity to use violence to remove a government that had broken its compact with the people.

I have sought to explain the meaning and effect of the Second Amendment when it was created.  That kind of approach is I understand fashionable in some quarters – although the meaning and effect of the law falls to be determined by law – and not by fashion or dogma.  (There is enough lawyer-made trouble already without our adding to it.)

May I suggest that when you look at the provision in its context and its history, there is no adequate basis for interpreting that law to have the effect of conferring private rights on the whole populace regardless of other laws?  And to do so other than for purposes served by the militia in the past, and with weapons that are not made for such purposes – and with a capacity to kill people far beyond the worst nightmares of our ancestors?

Put differently, how do you go from a law about arms for the militia applying to a small class of people, to one that confers private rights to use handguns for any purpose upon everyone – including Catholics, negroes, Jews, women and children – and lunatics?

Does anyone not believe that if the Founding Fathers came back tomorrow and saw how money, dogma, and bare faced corruption have caused others to wreak havoc under the rubric that they created, that they would just hang down their heads and cry?

It would be equally anomalous and dangerous now to interpret the Second Amendment in accordance with its original meaning and effect.  The U S has a standing army, and multiple police agencies.  No government in the world – including Russia with its Wagner Group – has any interest in allowing its people to arm themselves like soldiers so that political dissent can translate into the next civil war.  Not even the Proud Boys sought to bear their Kalashnikovs on the day of their assault on the Capitol.  And no modern police force now wants a posse.  Among other things, it might resemble a lynch mob.

That is why I have trouble seeing how the current rule in the US can be sustained on the text or in its history. 

Since writing that, I have reflected upon the troubles that afflicted us here in Australia for eighty years after the nation was born on the proper construction of s 92 of our Constitution.  It says trade between the states shall be ‘absolutely free’.  The best legal minds in Australia and England went round in circles.  In 1988, a joint judgment of the full High Court broke the Gordian knot and we have hardly been troubled since.  How did they do it?

Reference to the history of s 92 may be made, not for the purpose of substituting for the meaning of the words used the scope and effect – if such could be established – which the founding fathers subjectively intended the section to have, but for the purpose of identifying the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation from which the compact of the Constitution finally emerged.

The other rule about statutory interpretation in my view manifestly disqualifies any interpretation like that prevailing in the U S.  You do not interpret a statute so as to go against its evident purpose. 

What is the purpose of the American Constitution?

WE THE PEOPLE of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

We are back with where we started.  The first object of government is to keep the peace – within, and from without.  The phrase here is to ‘establish Justice, insure domestic Tranquillity…. [and] promote the general Welfare’. 

The current interpretation does the reverse.

If there is an answer to that argument, I have not heard it.  The Supreme Court of the United States has made laws rendering every government in that nation unable to do what it can and should do in order to preserve the peace. 

That is shocking – at least to the rest of the world.

There are lessons here for the rest of the world.  Don’t entrench provisions in the Constitution that give unelected judges, who are just about unsackable, the power to interfere with government like that.  And try to appoint judges who will not so obviously follow their religious leader.

We in Australia were not prepared to place fetters on legislative action of the federal government, except as required to distribute powers of legislation between the Commonwealth and the States.  The greatest jurist our nation has produced told a dinner of the American Bar Association at Detroit in 1942: ‘It may surprise you to learn that in Australia one view held was that these checks on legislative action were undemocratic, because to adopt them argued a want of confidence in the will of the people’. 

Sir Owen Dixon may have added that this was another departure of the U S model from that of the mother country. 

And you do not have to be a great jurist to know that having unelected judges make laws on policy grounds is about as undemocratic as you can get.

A third argument against the current U S law may not be one of law, but it is one that comes to the mind of good judges at decision time just before dawn.  Don’t allow yourself to be drawn to make a decision that confronts common sense and basic decency, and that will harm innocent people, unless you are satisfied that the law compels you to do so – after which you will resign.

Finally, these decisions are handed down to a community by people who seek to follow the teaching of Jesus of Nazareth in a community a large part of which professes to do the same.  I cannot understand how they can square what they do with any part of the Sermon on the Mount.  Little children are routinely suffered to come into mortal peril in the U S under laws made in service to Mammon. 

Christianity is no longer my faith, but my moral code is in large part built on the life and teaching of its founder.  I simply cannot understand how otherwise seemingly decent people can gather and combine to procure the appalling result about the use of guns in the U S today.

Nor can most people in the common law world or Europe.  This American failing is a terrible blow to its standing in the world.

Will you now kindly allow me some afterthoughts?

I referred earlier to various meanings of ‘conservative’.  Some people who claim that label reverse its proper denotation.  They are out to blow up the status quo.  That happened in the abortion case.  Precedent, the foundation of the common law, was shredded for ideological purposes. 

And it was done with what I must describe as the same shrill arrogance as the leading judgment in the guns case.  That kind of aggression is anything but conservative, and it would not be tolerated in London, Ottawa, or Canberra.

Haven’t these judges learned the first lesson of judging?  The most important person in the courtroom is the loser.  And the time for fighting cases stopped when they left the bar.  They are there to quell conflict, not provoke it.  You say what you have to in order to determine the case, and no more – and then call on the next case

Next, it does not appear to me that the Supreme Court was informed that Sir William Holdsworth, the English legal historian, reminded us that the Stuart kings had banned the use of hand-guns in London because of the threat they posed to the peace of the king. 

Well, if the Americans are about three hundred years behind the English, their position is worse with the Germans – well over two thousand years worse.  In his history On Germany, Tacitus said of the Germans before the birth of Christ that ‘it is repugnant to their custom for any man to use arms, before the community has attested his capacity to wield them’.  It is impossible to imagine a state of the U S trying to pass a law to that effect. 

(Here in Victoria, before I could buy rifle for target shooting, I had to attend a safety course and sit an exam, and be cleared by Police.  Then any acquisition had to be notified to Police, and kept in a secure, bolted down gun safe that the Police checked regularly.  Anything less secure would be out of the question in Australia.)

Gibbon says the Romans did not subscribe to the ‘barbarous practice of wearing arms in the midst of peace’ and refers to Thucydides and comments that the ‘historian who considers this circumstance as the test of civilisation would disdain the barbarism of a European court’. 

Finally, in 1945, when I was born, there was a big rift between Protestants and Catholics here in Australia.  It was about to get worse, and as a result we endured one-party rule here for a generation. 

There is hardly any of it left here now.  The generation after mine knows nothing of it – because there is not much left on either side.  It is just a matter of time before we follow England and see more people in the mosque than in the church. 

It is distressing that the schism appears to be lingering in the U S, and fanned by the judges in its highest court.  If nothing else, they do manage to sound dogmatic.

According to Joan Biskupic, the Catholic wing of the court is unrepentant.  Justice Alito spoke at an event sponsored by Notre Dame, and shared a friendly sneer with his co‑religionists.  Justice Barrett made a major public appearance with Mitch McConnell, the Republican hit man whose breach of convention allowed Justice Gorsuch to accept a position that should have gone to another. 

And so, their Honours adopt the partisan position of those who put them on the bench.  That is not what we expect of the arm of government that is the judiciary.

It is not surprising then that the Supreme Court has fallen low in public esteem.  Public life here and in the U S has been blighted by a lack of restraint and tolerance.  That now infects the U S Supreme Court.  It is, after all, unusual to see fiduciaries publicly celebrating their surrender to a conflict of interests.  Those justices who resolved their conflict in favour of the external ecclesiastical power shared high fives with those who seduced them.  This is a new kind of infidelity.  Justice Barrett says nothing partisan is happening, in a protest that the Queen of Denmark would have looked at askance.

And, sadly, the stain spreading from Donald Trump will just get much worse over time, and it will pollute the court for generations – or for at least the time his appointments are still there.

And now, I own up to my own prejudice.  I have raised two daughters, and I now have three grandchildren in what I believe is the best country in the world for that purpose.  The thought of trying to do so among a people who tolerate the gun laws of America horrifies me.

NOTES

The abortion case is Dobbs v. Jackson Women’s Health Organization, 597 U S, 2022.

The leading guns case is District of Columbia v Heller (2008) 554 U S 570.

The main Plumb citations are from The Growth of Political Stability in England, 1675-1725, Macmillan, 1967. 63-64.  The other remarks are at 20-22.

Maitland on militia: The Constitutional History of England, C U P, 1963, 162.

Hue and cry in England: Pollock and Maitland, The History of English Law, 1899, Cambridge, Vol 2, 578-579.

High Court on s 92: Cole v Whitfield (1988) 165 CLR 360, par. 8.

Australian jurist: Sir Owen Dixon, Two Constitutions Compared, in Jesting Pilate, Law Book Co, 1965, 102.

English ban on pistols and hand-guns: Holdsworth, History of English Law, London, 1924, Vol 4, 304.

The difficulty of keeping the peace in so crowded a centre as London was immensely aggravated by the universal practice of carrying arms.  In the Tudor period, attempts were made to stop the deadly affrays, which were so common a feature in the life of the period, by prohibiting the carrying of certain kinds of arms – such as pistols and handguns – and by regulating the kinds of weapons which could be bought or carried.  James I made a laudable attempt to stop the practice of duelling.  Quarrels accustomed to being settled by this means were for the future to be settled by the Marshal, and, to make this order effective, the carrying of daggers and pistols was forbidden.

Gibbon on wearing arms: The Decline and Fall of the Roman Empire, Folio, 1987, Vol 5, 294.  Thucydides clearly thought that wearing arms was outmoded if not barbaric – about 2,500 years ago.

Additionally, I have written a paper on what I consider to be the faults in Heller called The Dragon in the Cave, published in Looking Down the Well, Papers on Legal History, Amazon, 2015, and a paper on what I see as the failures of American jurisprudence, The American Difference, on my website.

In his book The Concept of Mind, Gilbert Ryle spoke of ‘category mistakes’ – representing the facts of mental life as if they belonged to one logical type or category, when they actually belong to another.  The idea was quite a hit in the Philosophy Department of Melbourne University in the sixties, although Ryle may have done little more than to warn us about comparing apples with oranges. 

If you are calling a cricket game, you don’t use concepts from rules of other games.  You don’t say ‘Mid-on is off-side.’  If you are calling a snooker game, you don’t say ‘He has missed the fairway.’  If you are calling a fencing match, you don’t say ‘she landed a right cross.’

Under our law –  the common law as affected by statute –  a person is not to be convicted of a criminal offence except by ‘due process’ of the law.  The accuser must prove the facts that constitute the offence.  Until that happens, the accused is said to have the benefit of the presumption of innocence. 

That is the law on who has the onus of proof.  What is the standard of proof in crime?  Beyond reasonable doubt.  And judges must not flirt with that long held formula.

In civil claims, the complainant has the onus, but the standard of proof  is different.  The case does not have to be proved beyond reasonable doubt, but just on what is called ‘the balance of probabilities’.  The judge or jury must find that the case of the plaintiff is more likely than not.

Well, that is fine if you allege that the lady negligently drove into the back of you, or that your tenant refuses to pay the rent.  But what if you allege  that your doctor assaulted you, or that  your lawyer defrauded you, or that the man next door boasted that he had killed his wife?  What if you allege that someone has committed a serious crime, and that allegation can ruin their life?

Does the law have a third or intermediate standard of proof? 

Lawyers here speak of a case called Briginshaw v Briginshaw (1938) 60 CLR 336.  That was case in the High Court a long time ago about the effect of state law on an allegation of adultery.  As such, it is hardly a binding authority on any point of law now.   But the judgments are taken to stand for two propositions.

First, even on the civil standard on the balance of probabilities, proof means proof.  The tribunal must feel an actual persuasion that the allegation has been made out.  Mere suspicion is not enough.

Secondly,  what may constitute ‘reasonable satisfaction’ (the language of the relevant statute) in any given case cannot be the subject of any general rule – it will depend as a matter of common sense, and doubtless common fairness, upon the nature and importance of the allegation sought to be proved in each case considered on its own evidence. Sir Owen Dixon said that ‘at common law no third standard of persuasion was definitely developed.’  There cannot be one general exception, because the court held that what is sufficient in any one case depends on all the circumstances of that case – the standard is variable.

It is not therefore correct to say that  a ‘comfortable’ or ‘reasonable’ ‘satisfaction’ refers to some different standard of proof that can be ascertained by applying established criteria.  Saying that there is a uniform standard for ‘satisfaction’ is like saying that there is a uniform standard for ‘negligence.’  The question, like so many in our law, is one of degree – and common sense; or, if you prefer, simply a matter for the jury.

Well, that is how lawyers and judges seek to resolve issues of fact or law in court.  Is it appropriate for people to seek to act that way outside court?  Even though they have no training or experience in applying these procedures?

May I offer some examples?

Parents of young children are looking for a babysitter.  John is recommended.  But then they find that John was faced with serious charges of sexual assault on children.  The case collapsed when the two alleged victims were killed in an accident.  John says he is entitled to the presumption of innocence.

Bob applies for a job in trust accounts in your law firm.  You find that he has been convicted of offences of fraud.  Bob says that could not be alleged against him if he was charged with defrauding you.

Bert applies for the same job.  Then the Police tell you that Bert associates with known criminals.  The lawyers tell you that that  evidence  would not be admissible  against him on an issue of character.

Someone is nominated for a place on the nation’s highest court.  A woman alleges that the nominee raped her.  She is very credible when grilled in public, but the nominee angrily denies the charge.  It all becomes very public and very political.  People back the version of the party on their side of politics.  The nominee says he is entitled to the presumption of innocence.  There can be no criminal prosecution to try the issue.  It will stay unresolved for the duration of the tenure.

Many women have alleged sexual offences  against a former president.  Then a jury finds that he did sexually assault the complainant who is  before the court.  They do so on the civil standard, after the defendant does not appear in court, or go into the witness box.  He says that there is no criminal conviction, and that people should ignore this verdict when assessing his fitness for office as president.

A bishop is informed of serious allegations of sexual abuse against three priests in his diocese involving  young persons whose souls he has in his care.  He says he cannot or should not take steps adversely to their interests because they are entitled to the presumption of innocence.

A man is prosecuted for murder of someone who left $50,000,000 to him under a will that the accused procured the deceased to execute.  He is acquitted.  The executors refuse to implement a gift which they allege he has forfeited the right to receive by his crime.   They say they will prove the crime  to have been committed on the civil standard.  He says he has been cleared of the charge and that he is ready, willing and able to laugh all the way to the bank.

A one-time war hero is found by a judge in a libel action to be a murderer, and a liar, after the longest libel action in the nation’s history.  Some say that others – like those in charge of the War Memorial or, apparently, future employers – should not be moved by this finding unless the former hero  is successfully prosecuted  under the criminal standard – even though his reputation is in fact ruined.

These examples show in my view that people are likely to engage in serious category mistakes by seeking to apply outside the court the processes that lawyers and judges apply inside court. 

The  games are all so very different.  We are speaking not of forensic inquires but of prudential, management, or policy issues.  We speak not of issues crystallized for curial decision, but issues involving communities, families, businesses, politics and positions of trust. 

A CEO of a public company who dismissed reports of an imminent recession as hearsay would be in mortal breach of his or her obligations to the company. Counsel don’t ask their solicitor to pass the forceps, and the surgeon doesn’t tell the theatre nurse she is estopped from saying what she did. 

There is a different standard in court because the stakes are so often so different in criminal cases and civil cases.  It is just common sense that you might require more evidence to hang someone on than to give them a parking ticket for, or find that the tenant has not paid the rent.  We acknowledge that we would rather have some who are ‘guilty’ go free, than jail someone who is not guilty.  (And we have just been reminded of the fearful shame we feel when someone has been jailed on a process that now looks so deficient.)

The same imperative does not apply in civil claims.  And  in family, business or government affairs, other imperatives intrude.  It would be absurd to suggest that the affairs of a school, a cricket club, post office, or government treasury could only be conducted on the basis of facts proved beyond reasonable doubt – and in whose judgment?

Outside court, there are the interests of third parties, or the public interest, to be considered.  If you look at the examples, you will see in each case that the interests of people other than two main parties, or the public interest, suggest that it would be foolish to allow some notion of legal process to stand in the way of a fair and sensible solution.  You can see the need to protect potential victims or to prevent people profiting from crime, or the need to preserve public trust in those in high office.  The ‘presumption of innocence’ runs smack into the doctrine of Caesar’s wife – although Caesar may have taken a different approach had he seen the Law of Suspects in the Reign of Terror.  And it is absurd to suggest that the bishop may be excused for failing to fulfil his duty of care by purporting to apply a presumption.

If the doctor tells you that if you continue to smoke, you will probably not live for as long as you might wish, you don’t ask him if he can say that he has no reasonable doubt about that.  And that reminds us that so much of what we do is based on trying to predict what may happen in the future – and there can be no certainty there.  Seeking certainty where you cannot expect it is a mark of immaturity or insecurity.

Look at the cases about those seeking a position.  If you had two candidates of equal standing but for the shadow cast upon them, which would you or the public prefer?

Outside court, if not inside it, we can give full play to the observation of the U S jurist Professor J H Wigmore that ‘Presumptions may be looked on as the bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts.’  (Cited in Carkeek v Tate-Jones [1971] 691.)

( A Preliminary Treatise on the Law of Evidence at the Common Law by  Professor J B Thayer of Harvard University is also highly respected. [It was cited with approval in the Victorian case above.]  Thayer thought that ‘presumptions’ should not  be regarded as part of the law of evidence, but as part of the rules of legal reasoning – and of course the law has no monopoly of logic.  Thayer regretted the ‘extent to which the presumption of innocence has been overdone in our hysterical American fashion of defending accused persons.’  He reviewed English practice and concluded that the presumption played a very small part in English practice – except to the extent that the law said that in a criminal prosecution, the accused must be proved guilty beyond reasonable doubt.  And that if the jury is left with a reasonable doubt, it must give the accused the benefit of such a doubt and acquit.  [See above, Little Brown & Co, 1898, 314, 553-555.]  The position is of course different in civil trials, and much more different in inquiries conducted outside the courts.)

Where someone is found guilty of conduct that puts them in breach of some public trust, the public has an interest in the consequences of that breach. If someone entrusted with my uniform or my colours betrays either, they betray me, and I have an interest in seeing how we as a community respond to that breach of trust.

No one in public life in this country could sustain any reputation at all in light of the findings of the Federal Court made  against Roberts-Smith.  Short of putting Roberts-Smith in jail, other federal agencies should be able to act on the evidence before the Federal Court, and the findings and judgment of that court.  The failure of the relevant  government officers to react appropriately is very unsettling. 

They are not playing the right game.

Roberts-Smith – the presumption of innocence – logic – common sense.

People in dispute in their employment – such as an allegation of bullying or sexual harassment at work – may prefer to avoid litigation, arbitration, or mediation, and appoint an investigator to investigate in private.  This is becoming more common. 

This alternative process can have the attraction of confidentiality, and that may not be acceptable to the respondent if the allegation has become public.

Here are some observations.  They come from someone who has spent a life in the adversarial process, which has a history of more than 800 years.

1. We speak of an investigation not a hearing.
2. The parties therefore do not meet for this purpose.
3. The respondent gives up the right of confrontation and cross-examination – a right at common law, here, and a constitutional right in the U S.
4. The right to silence may also be lost or impaired.  (The fact that this process has advantages does not detract from its disadvantages.)
5. We have gone from the adversarial to the inquisitorial mode.
6. That is not what lawyers are trained for or do in ordinary practice.
7. And the investigator can draw conclusions or express a preference for one version over another.
8. And report to the person commissioning the investigation.
9. The investigator can only do what the parties agree to give him power to do.
10. And according to the rules they agree on.
11. This falls to be determined by the general law – there is no statute dealing with this process like that which underlies arbitration.
12. For the contract to be binding in law, it would have to show consideration, or be executed as a deed.
13. No one should enter into such an agreement – and thereby, on at least one side, waiving rights – without the benefit of considered independent legal advice.
14. Any such contract would be subject to the requirements of the general law – for example as being unconscionable, or the subject of undue influence.

Where people are in dispute with each other, a number of questions may arise about how they may seek to resolve it.

Should the party aggrieved invoke the process of the law, or can the parties seek to agree on a process of resolution that may be recognised by the law, but which depends for its operation  on agreement between the parties, rather than sanctions of the law?

If one party goes straight to law – by suing – the law has its own procedure. If the parties decide to resolve their dispute by agreement, they need to agree on what procedure they will follow, and if and how any resolution may be enforced at law.

The agreement to avoid going to law will stipulate the kind of process to be used to resolve the dispute – most usually, arbitration or mediation. 

The two are very different.  Mediation can only work when both sides co-operate in a good faith attempt to reach a settlement.  If that good faith is not there on both sides, there is no point in conducting a mediation.  (Which is one reason why judges should not order mediation – when the orders are often just something writ on water, that present another and expensive barrier between the parties and resolution of the dispute.)

The parties may also agree on the law to be applied and issues like rules of evidence, or powers to give directions on process like those in courts (relating, say, to the production of documents).  About forty years ago I was involved in a family dispute involving many properties and millions of dollars that no one wanted aired in court – the tax man would have been salivating – where we appointed Ron Castan, QC to sit under a palm tree, in private of course, and do what he thought was a fair thing.

The process of the law may I suppose be invoked to procure some form of alternative resolution, but if any such process turns on the readiness of the parties to co-operate, what is the point?

And if the parties seek a determination of the issues by the court, our process is adversarial, not inquisitorial.  The court is not there for  an inquiry into  some abstract truth, but to determine under its rules which version is preferable.  And the remedies are limited.  A judge may order completion of a contract for sale of land, but not the performance of an ongoing relationship.

And in some areas, the distinction between the two modes of hearing is blurred .  Most libel actions were heard by a jury.  Now the Federal Court hears them without a jury.  The trials can be hideously long and expensive.  They follow Chancery process.  Evidence is led in writing.  Discovery is ordered – feast days for lawyers and the Internet.  And the judge gives written reasons – often at great length.  The Roberts-Smith Case was like a Royal Commission – inquisitorial.

What I would like to know is how and when those issues were dealt with in the dispute between some players and Hawthorn and the AFL.

The AFL says no findings were made against the respondents.  That is not surprising since no allegations were put to them.  But where did anyone get the power to make any findings?

We know the players are aggrieved.  We also know that  those accused are aggrieved.  The difference is that we have not seen the complaints tested, but we do know how the respondents – like Messrs Clarkson and Fagan – have been treated.  In my view, they have been badly let down by all those involved in dealing with this dispute.

I can understand why both the complainants and respondents did not want these issues aired in court, but if after, say, a fortnight it was apparent that no agreement could be reached on an alternative, why was it allowed to drag on to the obvious distress of people on the other side?

The reports in The Saturday Age do not give grounds for optimism.  In a letter, the complainants  tout their satisfaction with the AFL statement, but say they will go to the Human Rights Commission for ‘conciliation to listen to truths they don’t want to hear…And if they still won’t listen, it will end up in the Federal Court, where we will tell our truths in the witness box. We told our truths in confidence, because we believe that it would bring change.  And because we needed to heal and move on.  That confidence was betrayed.’

To put it softly, that letter shows some difficulty in its authors’ coming to grips with the issues described above.  Enforced conciliation sounds like a contradiction in terms. 

Perhaps bad thinking is in the air.  There are two ironies.  Both sides complain that they have not been heard.  The First Nations people claim a right to be heard in the governance of the nation.  The Voice is a proposal for reconciliation.  Yet some in Canberra go on to a war footing to oppose such a move that appears so harmless.

And one of them had the gall to say ‘They’re a Weird Mob.’

AFL – Hawthorn – First Nations – Law – Mediation.