Sunday, January 24, 2016

Sunday reflection spot - can the rules fix everything?

Every since I was at University I have regularly found myself taking part in attempts by various clubs, unions, councils, or political parties to sort out problems by amending their constitution, rules or standing orders.

Occasionally there really is a problem with the constitution concerned and then such exercises can add value.

But most of the time it is part of a power struggle - some party, group or faction is pushing a rules change which they think will make the outcomes more "fair" which invariably means increasing their influence or representation.

Much of the time I have spent in "constitutional reviews" of various bodies which was kicked off because of such power struggles was completely wasted, and very little good ever comes from them.

There is an interesting article in The Economist called "Does the constitution fix everything?" which reports on a horrifying case where an American policeman, Jeffrey Heffernan was demoted after his bedridden mother asked him to fetch her a political poster supporting her preferred candidate for Mayor in the local elections. He was seen carrying the sign, and word reached his boss, local police chief James Wittig, who supported another candidate. Mr Wittig took revenge for Mr Heffernan's supposed political views by demoting him.

The argument when this case reached the US Supreme Court was, quite rightly, not whether Mr Wittig's action was morally wrong and proved him to be a petty tyrant of the most egregious kind - and I note that even the lawyers defending the City of Paterson which employed Messrs Heffernan and Wittig did not pretend to be impressed by the latter's action - but whether it was a breach of the First Amendment to the US Constitution which guarantees freedom of speech. A majority of the current Supreme Court are opponents of Judicial Activism, that is they don't think it is their job as judges to make new laws but only to enforce what the current law actually says. The First Amendment to the US constitution talks about Free Speech, not the right to fetch someone a poster.

While I hesitate to set myself against a court of learned judges in another country, I must confess myself surprised and disappointed that the court found for the City of Paterson and against Mr Heffernan. As a lawyer from the solicitor general’s office put it there would appear to be a strong case that the appellant had "a First Amendment right not to have adverse action taken against him by his employer for the unconstitutional purpose of suppressing disfavoured political beliefs”.

Justice Elena Kagan asked the lawyer for the City of Paterson if he was really "telling me, no, the First Amendment does not prevent the government from punishing a person because that person doesn't share the government's views, unless that person is actively opposed to the government's views”.

That, she suggested, is a “strange doctrine” and I have to 100% agree.

But on one issue the lawyer for the City of Paterson was dead right, when he said,

 “The constitution doesn't fix everything.”

Those who expect that tinkering with any constitution will make things perfect have always, in my experience, been sadly disappointed.

1 comment:

Jim said...

Simple answers never solve complex problems. I think a picture paints a thousand words and with things as complex as most are, like imigration, leaving the EU, fuel duty, etc.
then people are less likely to choose the right path