tag:theconversation.com,2011:/us/topics/bill-of-rights-2034/articlesBill of rights – The Conversation2023-11-22T14:36:11Ztag:theconversation.com,2011:article/2177232023-11-22T14:36:11Z2023-11-22T14:36:11ZSouth African politicians vs judges: new book defends the constitution<p>In 1994, South Africa became a democracy founded on a supreme constitution. The constitution’s <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">preamble</a> affirms the nation’s quest to</p>
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<p>establish a society based on democratic values, social justice and fundamental human rights. </p>
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<p>The constitution clearly envisioned political accountability and judicial review of executive and legislative actions. But, almost three decades on, this vision is increasingly under virulent criticism by populist politicians.</p>
<p>Dan Mafora’s new <a href="https://www.nb.co.za/en/view-book/?id=9780624093916">book</a>, Capture in the Court – In Defence of Judges and the Constitution, likens the rising rebellion against judges and the constitution to “judicial capture”. He labels this rebellion “anti-constitutionalism” and explains the key factors behind “the less-than-happy relations between the courts and politicians”. </p>
<p>Mafora writes from an insider-outsider perspective. He is a senior researcher at the non-profit <a href="https://za.linkedin.com/company/council-for-the-advancementof-the-south-african-constitution">Council for the Advancement of the South African Constitution</a>, an ex-corporate lawyer, and a former clerk in the <a href="https://collections.concourt.org.za/">Constitutional Court of South Africa</a>.</p>
<p>As someone who has taught the South African bill of rights and <a href="https://www.elgaronline.com/edcollchap/edcoll/9781788113199/9781788113199.00012.xml">written</a> about <a href="https://www.pulp.up.ac.za/component/edocman/constitutionalism-and-democratic-governance-in-africa-contemporary-perspectives-from-sub-saharan-africa">constitutionalism in Africa</a>, I understand the significance of this book. </p>
<p>Although its title seems sensationalist, it is justified by its depressing evidence. As Mafora states:</p>
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<p>It is now not an uncommon occurrence for a former president to claim that we are under a judicial dictatorship, or for a senior leader of the official opposition to claim that the Constitutional Court leaked a judgment to the ANC …</p>
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<p>The ANC (African National Congress) has governed the country since 1994. </p>
<p>In the first decade after the 1994 democratic elections, South Africa was hailed as a beacon of <a href="https://www.britannica.com/topic/constitutionalism">constitutionalism</a>. This is the idea that governmental authority is determined by a supreme constitution enforced by judges. So how did the country <a href="https://ideas.repec.org/a/sae/anname/v681y2019i1p194-208.html">fall</a> from this heady height?</p>
<h2>Rise of anti-constitutionalism</h2>
<p>Mafora attributes the fall to four interwoven elements: </p>
<ul>
<li><p><a href="https://www.collinsdictionary.com/dictionary/english/lawfare">lawfare</a> or the “steady judicialisation of politics”</p></li>
<li><p>misinformation campaigns</p></li>
<li><p>increased public visibility of lawyers and judges</p></li>
<li><p>the sluggish pace of socio-economic transformation. </p></li>
</ul>
<p>Populist politicians claim that <a href="https://theconversation.com/rule-of-law-in-south-africa-protects-even-those-who-scorn-it-175533">judges constrain socio-economic change</a> by protecting neoliberal economic policies, notably <a href="https://theconversation.com/land-reform-in-south-africa-what-the-real-debate-should-be-about-182277">land laws</a>. </p>
<p>Since <a href="https://projects.iq.harvard.edu/johncomaroff/john-comaroff-explains-lawfare">lawfare</a> and misinformation underlie the book’s theme of “judicial capture”, they deserve a closer look.</p>
<p><strong>Lawfare</strong> is commonly understood as the strategic use of legal proceedings to intimidate or restrict the agency of an opponent. In the post-apartheid era, it <a href="https://www.researchgate.net/publication/333571635_%27Lawfare%27_in_South_Africa_and_Its_Effects_on_the_Judiciary">refers to</a></p>
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<p>the use of litigation to resolve contentious political disputes in spite of the existence of many non-curial [non-judicial] constitutional safeguards.</p>
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<p>Mafora traces lawfare to the ANC’s failure on two counts. One was the failure to choose between constitutionalism and “people’s power” during the 1990s <a href="https://theconversation.com/south-africas-1994-miracle-whats-left-159495">negotiations that ended apartheid</a>. The other was its failure to fully promote constitutionalism afterwards. It ideologically linked <a href="https://www.sahistory.org.za/article/peoples-power-1986">“people’s power”</a> to its <a href="https://omalley.nelsonmandela.org/index.php/site/q/03lv02424/04lv02730/05lv03005/06lv03132/07lv03140/08lv03145.htm">National Democratic Revolution</a>. This Soviet-inspired concept aimed at realising a social system between capitalism and communism. </p>
<p>The ANC was happy with constitutionalism as long as its outcomes coincided with the goals of the National Democratic Revolution. Failing this, it tried unsuccessfully to manipulate the judiciary to realise these goals. In Mafora’s words, </p>
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<p>Today’s ANC, frankly put, does not truly believe in the idea of a supreme Constitution to which it is bound and under which it ought to function. </p>
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<p>Using many examples, he argues that the ANC’s indifference to constitutionalism has left the constitution vulnerable to opportunistic attacks by politicians. Misinformation plays a huge role in these attacks.</p>
<p><strong>Misinformation:</strong> Information wars occur through chat bots and fake social media handles that spin the narratives of their creators. Misinformation creates doubt over conflicting narratives. It breeds mistrust in the judiciary, especially when judges’ decisions appear to contradict the public’s commonsense understanding of issues. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/are-judges-in-south-africa-under-threat-or-do-they-complain-too-much-45459">Are judges in South Africa under threat or do they complain too much?</a>
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<p>The unfortunate result is a perception that the courts rarely act in the interest of the masses. This encourages anti-constitutionalism and loud noises for a return to (apartheid era) parliamentary supremacy.</p>
<p>So, what is the panacea?</p>
<h2>In defence of constitutionalism</h2>
<p>Mafora rightly regards constitutionalism as integral to democratic governance. It underpins </p>
<ul>
<li><p>multi-party democracy </p></li>
<li><p>supremacy of the <a href="https://www.justice.gov.za/constitution/SAConstitution-web-eng-02.pdf">bill of rights</a> </p></li>
<li><p>primacy of the rule of law</p></li>
<li><p>judges’ power to review legislative and executive conduct with due respect for separation of powers and cooperative governance.</p></li>
</ul>
<p>He takes pains to explain these legal concepts, hoping that doing so will improve </p>
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<p>the low level of constitutional literacy among South Africans, [which] renders them vulnerable to both misinformation and disinformation.</p>
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<p>Interestingly, Mafora attempts to debunk accusations that the constitution is colonial. He analyses two schools of thought. </p>
<p>The first holds that the common law is colonial because it was “received” into South Africa through colonial conquest. </p>
<p>The second says the common law is colonial also because it is rooted in European legal tradition. </p>
<p>Mafora thinks that for law to still qualify as colonial, it must reproduce the inequitable relations that defined “colonial law, administration and experience”. He argues that <a href="https://unimelb.libguides.com/c.php?g=929734&p=6718215#:%7E:text=The%20Roman%2DDutch%20law%20common,traced%20to%20this%20civilian%20heritage.">Roman-Dutch law</a>, which was almost entirely private law, lost its colonial baggage in South Africa. </p>
<p>He is right to condemn how public officials use decolonisation for political gains. But in my view, he seems to misunderstand the nature of South Africa’s constitution.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/rule-of-law-in-south-africa-protects-even-those-who-scorn-it-175533">Rule of law in South Africa protects even those who scorn it</a>
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<p>As I have <a href="https://repository.uwc.ac.za/bitstream/handle/10566/7355/Diala_law_2021.pdf?sequence=1&isAllowed=y">argued</a> elsewhere, colonial patterns of power persist. These make Africans cultural and intellectual clones of Europeans. In this context, is the constitution not part of the Roman-Dutch law, which emerged from European culture? </p>
<h2>A Eurocentric constitution</h2>
<p>Mafora fails to point out how the bill of rights, the cornerstone of South Africa’s constitution, was inspired by the 1948 <a href="https://www.un.org/en/about-us/universal-declaration-of-human-rights">Universal Declaration of Human Rights</a>. Crudely put, the declaration symbolised western nations’ reaction to the <a href="https://www.britannica.com/summary/World-War-II">second world war</a> and centuries of violent conflicts. With zero indigenous African input, it represented western legal culture. </p>
<p>Significantly, South Africa’s constitution <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">claims</a> authority over African customary laws and the colonially imposed European laws regarded as the common law. But given its intellectual roots in European laws, the constitution’s authority over the common law is like regulating itself. So, in my view, the constitution is part of Roman-Dutch law, and therefore part of the colonial heritage.</p>
<p>Mafora’s book is nevertheless important for understanding and managing the relationship between judges, politicians and the constitution. It is timely because South Africa is facing an existential crisis of service delivery, which belies the post-apartheid optimism of good governance.</p><img src="https://counter.theconversation.com/content/217723/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anthony Diala receives funding from the National Research Foundation of South Africa (Grant Number 136532). However, the opinions, findings and recommendations here are his alone.</span></em></p>The governing ANC’s indifference to constitutionalism has left the constitution vulnerable to opportunistic attack by politicians.Anthony Diala, Director, Centre for Legal Integration in Africa, University of the Western CapeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2004802023-02-28T13:26:15Z2023-02-28T13:26:15ZMocking the police got an Ohio man arrested – and the Supreme Court ignored The Onion’s plea to define the limits of parody<figure><img src="https://images.theconversation.com/files/512501/original/file-20230227-481-pgq3w7.jpeg?ixlib=rb-1.1.0&rect=6%2C3%2C2302%2C1277&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Satire can be dangerous.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/illustration/satirical-cartoonist-royalty-free-illustration/533153903?phrase=political%20satire&adppopup=true">DigitalVision Vectors/Getty Images</a></span></figcaption></figure><p>Can Americans be jailed for making fun of the government? Most would respond with a resounding “No, of course not! The First Amendment protects us from that.”</p>
<p>But <a href="https://www.cleveland.com/parma/2016/03/parma_man_charged_with_felony.html">Anthony Novak learned otherwise in March 2016</a>, after he created and posted a fake version of the Parma, Ohio, Police Department’s Facebook page. </p>
<p>He copied the department’s name and profile picture onto his satirical <a href="https://www.supremecourt.gov/DocketPDF/22/22-293/251523/20230106102432958_22-293%20Brief%20in%20Opposition%20FINAL.pdf">Facebook page</a>, but unlike the official page, Novak’s was designated a “Community” page and displayed the slogan: “We no crime,” a parody of the department’s actual slogan, “We know crime.”</p>
<p>During its short life – the page was available for only about 12 hours – Novak published six posts, all parodies. One – echoing Jonathan Swift’s classic satire, “<a href="https://www.gutenberg.org/files/1080/1080-h/1080-h.htm">A Modest Proposal</a>,” that suggested Ireland’s poor sell their children as food for the rich - announced a new law forbidding residents to give “ANY HOMELESS person food, money, or shelter in our city for 90 days,” so that “the homeless population eventually leave our city due to starvation.”</p>
<p>Parma police promptly posted a notice on its official page, warning residents not to be fooled by Novak’s parody. Novak in turn posted that same notice on his own page, but also deleted the few posted reader comments opining that his page was fake. After police announced a criminal investigation, Novak took his page down entirely.</p>
<p>Novak asked the U.S. Supreme Court to rule in the resulting court case stemming from the police’s heavy-handed treatment of him. In late February 2023, the high court refused to take the case, forfeiting an opportunity to make a definitive statement about how far free speech protections extend when it comes to satire about government.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/512492/original/file-20230227-811-mtydme.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A post on a fake Facebook page for the Parma Police Department that says no one will be allowed to provide material help to homeless people." src="https://images.theconversation.com/files/512492/original/file-20230227-811-mtydme.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/512492/original/file-20230227-811-mtydme.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=641&fit=crop&dpr=1 600w, https://images.theconversation.com/files/512492/original/file-20230227-811-mtydme.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=641&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/512492/original/file-20230227-811-mtydme.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=641&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/512492/original/file-20230227-811-mtydme.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=805&fit=crop&dpr=1 754w, https://images.theconversation.com/files/512492/original/file-20230227-811-mtydme.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=805&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/512492/original/file-20230227-811-mtydme.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=805&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A screenshot from Anthony Novak’s fake Parma Police Department Facebook page.</span>
<span class="attribution"><a class="source" href="https://www.oyez.org/cases/1987/86-1278">City of Parma brief to U.S. Supreme Court</a></span>
</figcaption>
</figure>
<h2>First Amendment protection?</h2>
<p>Here’s how the case developed: Citing a state law making it a crime to use a computer <a href="https://codes.ohio.gov/ohio-revised-code/section-2909.04#:%7E:text=(B)%20No%20person%20shall%20knowingly,%2C%20commercial%2C%20or%20governmental%20operations">to disrupt police operations</a>, the police searched Novak’s apartment, seized his phone and laptop and jailed him for four days. A jury <a href="https://www.cleveland.com/court-justice/2016/08/jury_acquits_parma_man_who_mad.html">acquitted him of the felony charge in August 2016</a>.</p>
<p>Novak then <a href="https://www.cleveland.com/court-justice/2016/09/parma_man_sues_over_arrest_pro.html">filed a lawsuit against the police</a>, arguing that they had violated his First Amendment rights. </p>
<p>The law enforcement officials replied that they were entitled to “<a href="https://www.ncsl.org/civil-and-criminal-justice/qualified-immunity#:%7E:text=So%20qualified%20immunity%20protects%20states,to%20states%20and%20local%20governments.">qualified immunity</a>,” a legal doctrine protecting government employees from liability for conduct that has not been clearly established as unconstitutional. </p>
<p>A three-judge panel of the U.S. Court of Appeals for the 6th Circuit, which has jurisdiction over cases from Ohio, Kentucky, Michigan and Tennessee, ruled that although parody is protected speech, copying the department’s official warning and deleting the comments questioning the page’s authenticity might not be. It concluded that the officers could have reasonably believed that some of Novak’s Facebook activity violated the criminal statute and <a href="https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0090p-06.pdf">was not protected by the First Amendment</a>. </p>
<p>Novak asked the Supreme Court to review his <a href="https://www.supremecourt.gov/DocketPDF/22/22-293/238740/20220926094542129_Petition%20for%20Writ%20of%20Certiorari%20Novak%20v.%20Parma.pdf">case in September 2022.</a> He argued that police should not be allowed to arrest an individual solely for making fun of the government, yet “that is exactly what happened here. If that is not an obvious violation of the Constitution, it’s hard to imagine what would be.” Novak also invited the high court to reconsider the qualified immunity doctrine, especially in cases where protected speech is the basis for arresting someone.</p>
<p>The police response solemnly predicted that a ruling in Novak’s favor could lead to a virtual law enforcement Armageddon, confusing the public, eroding their trust in official social media sites, posing a threat to safety and “<a href="https://www.supremecourt.gov/DocketPDF/22/22-293/251523/20230106102432958_22-293%20Brief%20in%20Opposition%20FINAL.pdf">exacerbate[ing] the nationwide crisis police agencies are experiencing</a>.” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/512496/original/file-20230227-20-l8opnw.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An official Parma Police Department Facebook posting that says 'The Parma Police Department would like to warn the public that a fake Parma Police Facebook page has been created.'" src="https://images.theconversation.com/files/512496/original/file-20230227-20-l8opnw.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/512496/original/file-20230227-20-l8opnw.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=392&fit=crop&dpr=1 600w, https://images.theconversation.com/files/512496/original/file-20230227-20-l8opnw.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=392&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/512496/original/file-20230227-20-l8opnw.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=392&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/512496/original/file-20230227-20-l8opnw.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=492&fit=crop&dpr=1 754w, https://images.theconversation.com/files/512496/original/file-20230227-20-l8opnw.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=492&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/512496/original/file-20230227-20-l8opnw.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=492&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Parma’s police department posted on its legitimate Facebook page a warning about the satirical page.</span>
<span class="attribution"><a class="source" href="https://www.facebook.com/261731697214075/posts/the-parma-police-department-would-like-to-warn-the-public-that-a-fake-parma-poli/949891288398109/">City of Parma Police Department Facebook page</a></span>
</figcaption>
</figure>
<h2>The Onion weighs in</h2>
<p>Novak’s petition was supported by amicus curiae briefs by politically diverse “friends of the court,” including the satirical news sites <a href="https://www.supremecourt.gov/DocketPDF/22/22-293/242292/20221003125252896_35295545_1-22.10.03%20-%20Novak-Parma%20-%20Onion%20Amicus%20Brief.pdf">The Onion</a> and <a href="https://www.supremecourt.gov/DocketPDF/22/22-293/244213/20221028092221628_Babylon%20Bee%20-%20Amicus%20Brief.pdf">The Babylon Bee</a>, who argued that their own survival depends on First Amendment protection for parody. </p>
<p>Acknowledging that its own writing has <a href="https://abcnews.go.com/International/times-people-fooled-onion/story?id=31444478">occasionally confused some readers</a>, The Onion pointed out that satire only works if it credibly mimics whatever it is parodying. The courts, they wrote, should not assume “that ordinary readers are less sophisticated and more humorless <a href="https://www.supremecourt.gov/DocketPDF/22/22-293/242596/20221006144840674_Novak%20Parma%20Onion%20Amicus%20Brief.pdf">than they actually are</a>.” </p>
<p>The Onion concluded by declaring it “intends to continue its socially valuable role bringing the disinfectant of sunlight into the halls of power. And it would vastly prefer that sunlight not to be measured out to its writers in 15-minute increments in an exercise yard.”</p>
<p>But on Feb. 21, 2023, the Supreme Court chose to deny the petition for certiorari. The court <a href="https://www.supremecourt.gov/orders/courtorders/022123zor_g20h.pdf">would not hear the case.</a> </p>
<p>Coincidentally, this order was issued three days before the 35th anniversary of the release of the Supreme Court’s opinion in <a href="https://www.oyez.org/cases/1987/86-1278">Hustler Magazine, Inc. v. Falwell</a>. That major ruling established that the legal tradition protecting robust criticism of public figures and government operations must extend to satirical cartoons and parody, however “caustic” they may be. </p>
<p>From the 19th century caricaturist and editorial cartoonist <a href="https://www.illustrationhistory.org/artists/thomas-nast">Thomas Nast</a> to the creators of the animated <a href="https://www.theguardian.com/tv-and-radio/2023/feb/22/baseless-nonsense-meghan-and-harry-wont-sue-south-park-for-mocking-them">“South Park” TV show</a> and movie, satirists do their best work when they are free to skewer public officials and celebrities without fear of legal consequences. </p>
<p>And as then-Chief Justice William Rehnquist, the author of the Hustler opinion and <a href="https://www.cnn.com/2012/10/28/justice/rehnquist-legacy/index.html">himself a one-time editorial cartoonist</a>, wrote for the unanimous court, “From the viewpoint of history, it is clear that our political discourse would have been considerably poorer without them.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/512493/original/file-20230227-16-o459ke.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A screenshot of a fake Facebook page announcing the Parma Police Department's 'stay inside and catch up with the family day.'" src="https://images.theconversation.com/files/512493/original/file-20230227-16-o459ke.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/512493/original/file-20230227-16-o459ke.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=543&fit=crop&dpr=1 600w, https://images.theconversation.com/files/512493/original/file-20230227-16-o459ke.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=543&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/512493/original/file-20230227-16-o459ke.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=543&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/512493/original/file-20230227-16-o459ke.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=682&fit=crop&dpr=1 754w, https://images.theconversation.com/files/512493/original/file-20230227-16-o459ke.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=682&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/512493/original/file-20230227-16-o459ke.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=682&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">One of the Facebook parody pages made by Anthony Novak, satirizing the Parma Police Department in Ohio.</span>
<span class="attribution"><a class="source" href="https://ij.org/wp-content/uploads/2022/09/Novak-Facebook-Post-02.png">Institute for Justice</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<h2>Violating American tradition</h2>
<p>The Hustler case, however, was a civil action for emotional distress filed by the Rev. Jerry Falwell after the magazine published an “ad parody” making fun of the nationally known fundamentalist minister. </p>
<p>By contrast, Novak was arrested, detained and criminally prosecuted for lampooning the police, who were seeking to deprive him of his liberty and, presumably, serve as a warning to others.</p>
<p>Using criminal statutes to silence satirists and parodists occurs in <a href="https://www.cnn.com/2023/01/29/europe/russian-teen-social-media-ukraine-war-intl-cmd/index.html">countries like Russia</a>, <a href="https://rsf.org/en/iranian-journalist-gets-long-jail-term-satirical-comments-about-mullah-regime">Iran</a> and <a href="https://www.amnesty.org/en/latest/news/2022/09/thailand-mock-fashion-show-protester-sentenced-to-two-years-for-insulting-the-monarchy/">Thailand</a>, where officials tolerate no disrespect. I believe that it is distinctly un-American. </p>
<p>Yet as recently as 2010, Justice Neil Gorsuch, then a judge for the 10th Circuit U.S. Court of Appeals, wrote that “the Supreme Court has yet to address <a href="https://casetext.com/case/mink-v-knox-3">how far the First Amendment goes in protecting parody</a>.” That was in a case challenging a prosecutor’s claim of qualified immunity after she approved the search, seizure and arrest of a parodist for allegedly violating the Colorado criminal libel statute. </p>
<p>Refusing to review Novak’s case is a missed opportunity for the Court to consider and decide once and for all whether the First Amendment protects satire and parody. And that’s no joke.</p><img src="https://counter.theconversation.com/content/200480/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jane E. Kirtley was executive director of the Reporters Committee for Freedom of the Press from 1985-1999, and during that time authored an amicus brief before the Supreme Court in the Hustler Magazine, Inc. v. Falwell case. She received no funding for this brief from any of the parties to the case. In 2018, as Silha Professor and Director of the Silha Center, she co-curated a symposium, State of Our Satirical Union, at the University of Minnesota, marking the 30th Anniversary of the Hustler Magazine, Inc. v. Falwell case. The event was sponsored by:
The University of Minnesota's Silha Center for the Study of Media Ethics and Law,
The Association of American Editorial Cartoonists,
The Minnesota Journalism Center,
The Hubbard School of Journalism and Mass Communication, and
The Herb Block Foundation.</span></em></p>A satirist posted a parody of a police Facebook page. He was arrested and jailed for four days. How far do free speech protections extend when it comes to satire about government?Jane E. Kirtley, Professor of Media Ethics and Law, University of MinnesotaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1976042023-02-08T13:42:04Z2023-02-08T13:42:04ZWhat the First Amendment really says – 4 basic principles of free speech in the US<figure><img src="https://images.theconversation.com/files/507966/original/file-20230202-5680-ll0ht.jpg?ixlib=rb-1.1.0&rect=298%2C381%2C2619%2C1641&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A protection that is, at least in this Philadelphia park, carved in stone.</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:First_Amendment_to_the_U.S._Constitution.jpg">Zakarie Faibis via Wikimedia Commons</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>Elon Musk has claimed he believes in free speech no matter what. He calls it a <a href="https://twitter.com/elonmusk/status/1597405399040217088">bulwark against tyranny in America</a> and promises to reconstruct Twitter, which he now owns, so that its policy on free expression “<a href="https://twitter.com/elonmusk/status/1519036983137509376">matches the law</a>.” Yet his grasp of the First Amendment – the law that governs free speech in the U.S. – appears to be quite limited. And he’s not alone.</p>
<p>I am a lawyer and a professor who has taught constitutional concepts to undergraduate students for over 15 years and has written a book for the uninitiated about the <a href="https://press.uchicago.edu/ucp/books/book/distributed/W/bo156864042.html">freedom of speech</a>; it strikes me that not many people educated in American schools, whether public or private – including lawyers, teachers, talking heads and school board members – appear to have a working knowledge about the right to free speech embedded in the <a href="https://constitution.congress.gov/constitution/amendment-1/">First Amendment of the U.S. Constitution</a>. </p>
<p>But that doesn’t have to be the case.</p>
<p>In short, the First Amendment enshrines the freedom to speak one’s mind. It’s not written in code and does not require an advanced degree to understand. It simply states: “Congress shall make no law … abridging the freedom of speech.” The liberties embraced by that phrase belong to all of us who live in the United States, and we can all become knowledgeable about their breadth and limitations.</p>
<p>There are just four essential principles.</p>
<h2>1. It’s only about the government</h2>
<p>The Bill of Rights – the other name for the first 10 amendments to the U.S. Constitution – like the Constitution itself and all the other amendments, sets limits only on the relationship between the U.S. government and its people.</p>
<p>It does not apply to interactions in other nations, nor interactions between people in the U.S. or companies. If the government is not involved, the First Amendment does not apply.</p>
<p>The First Amendment ensures that Twitter is, in fact, free of government restrictions against <a href="https://www.nytimes.com/2022/11/20/opinion/donald-trump-twitter-return.html">spreading misinformation and disinformation</a> or virtually anything else. The company is similarly free to <a href="https://www.theguardian.com/technology/2022/dec/17/elon-musk-reinstates-twitter-accounts-of-suspended-journalists">expel any users</a> who offend Musk’s personal sensibilities. They can be <a href="https://www.theguardian.com/technology/2022/dec/17/elon-musk-reinstates-twitter-accounts-of-suspended-journalists">booted off Twitter</a> and any charges of “Censorship!” don’t apply.</p>
<h2>2. For decades, speech has faced very few limits</h2>
<p>Freedom of expression was understood by the nation’s founders to be a <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3016815">natural, unalienable right</a> that belongs to every human being. </p>
<p>Over the course of the first 120-plus years of the country’s democratic experiment, judicial interpretation of that right slowly evolved from a limited to an expansive view. In the middle of the 20th century, the Supreme Court ultimately concluded that because the right to speak freely is so fundamental, it is subject to restriction <a href="https://supreme.justia.com/cases/federal/us/395/444/">only in limited circumstances</a>. </p>
<p>It is now an accepted doctrine that tolerance for discord is built into the very fabric of the First Amendment. In the words of one of the most revered Supreme Court justices, Louis D. Brandeis, “<a href="https://supreme.justia.com/cases/federal/us/274/357/#tab-opinion-1931857">it is hazardous to discourage thought, hope and imagination</a>; … fear breeds repression; … repression breeds hate; … hate menaces stable government.” </p>
<p>Opinions, viewpoints and beliefs – which are sometimes based on provable fact, other times on hypothetical theories and occasionally on lies and conspiracies – all contribute to what constitutional scholars and lawyers refer to as the “<a href="https://www.mtsu.edu/first-amendment/article/999/marketplace-of-ideas">marketplace of ideas</a>.” Similar to the commercial marketplace, the marketplace of ideas subjects all products to competition. The hope is that only the best will survive.</p>
<p>Therefore, members of the <a href="https://www.oyez.org/cases/2010/09-751">Westboro Baptist Church can picket the funerals of fallen soldiers</a> with signs disparaging the LGBTQ+ community, <a href="https://supreme.justia.com/cases/federal/us/432/43/#tab-opinion-1952312">Nazi hate groups</a> can hold rallies and <a href="https://supreme.justia.com/cases/federal/us/373/262/">civil rights groups can participate in lunch-counter protests</a>. The ideas expressed by each of these groups represent one perspective in the public debate about rights and privileges, government responsibility and religion. Other people and groups may disagree, but their perspectives are also protected from government censorship and repression.</p>
<p>Messages communicated by means other than speech or writing are generally protected by the First Amendment, too. A jean jacket bearing the Vietnam-era anti-war slogan “<a href="https://www.oyez.org/cases/1970/299">F*ck the Draft</a>” is protected, as is the act of <a href="https://supreme.justia.com/cases/federal/us/491/397/">burning a United States flag</a> in front of a crowd. These were potentially more emotionally powerful than politely worded statements opposing government policies.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of people stand nearby while a U.S. flag burns." src="https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">It may be upsetting to see – but that’s part of the point of burning a flag, and a key reason it’s protected by the First Amendment.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/members-of-the-communist-party-usa-and-other-anti-fascist-news-photo/1230698352">Michael Ciaglo/Getty Images</a></span>
</figcaption>
</figure>
<h2>3. But not all speech is protected</h2>
<p>The government does, in fact, have the power to regulate some speech. When the rights and liberties of others are in serious jeopardy, speakers who <a href="https://www.oyez.org/cases/1940-1955/315us568">provoke others into violence</a>, <a href="https://www.oyez.org/cases/1963/39">wrongfully and recklessly injure reputations</a> or <a href="https://www.oyez.org/cases/1968/492">incite others to engage in illegal activity</a> may be silenced or punished. </p>
<p>People whose words cause actual harm to others can be held liable for that damage. Right-wing commentator Alex Jones found that out when courts ordered him to pay <a href="https://www.texastribune.org/2022/11/23/alex-jones-texas-lawsuit-damages/">more than US$1 billion in damages</a> for his statements about, and treatment of, parents of children who were killed in the 2012 Sandy Hook Elementary School shooting in Newtown, Connecticut. </p>
<p>So, abortion opponents can say what they wish but <a href="https://www.mtsu.edu/first-amendment/article/706/planned-parenthood-of-the-columbia-willamette-inc-v-american-coalition-of-life-activists-9th-cir">can’t threaten or terrorize abortion providers</a>. And the white supremacists who rallied in Charlottesville, Virginia, in 2017 can shout to the rafters that Jews will not replace them, but they can be <a href="https://www.washingtonpost.com/dc-md-va/2023/01/03/charlottesville-unite-the-right-damages/">held liable for the intimidation, harassment and violence</a> they used to amplify their words. </p>
<p>Rules about incitement to illegal action are part of the <a href="https://www.pbs.org/newshour/show/justice-department-examines-trumps-conduct-in-jan-6-probe">U.S. Department of Justice’s investigation</a> into whether former President Donald Trump is at all responsible for the violence at the Capitol on Jan. 6, 2021. On that day, <a href="https://www.factcheck.org/2021/01/trumps-falsehood-filled-save-america-rally/">citing unproven, even disproved, events</a>, Trump <a href="https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial">delivered a speech</a> insisting the 2020 presidential election was rife with fraud. </p>
<p>However, <a href="https://www.law.cornell.edu/supremecourt/text/11-210">the First Amendment doesn’t protect only true statements</a>. Trump has a constitutional right to advocate for his perspective. Even his references to violence might be considered shielded from criminal prosecution by the superpower of the First Amendment. That superpower would evaporate only if a court finds that, when he spoke the words that day, “And if you don’t fight like hell, you’re not going to have a country anymore,” his intent was to <a href="https://www.washingtonpost.com/opinions/2022/12/19/jan-6-committee-report-trump-referrals/">incite the violence that followed</a>.</p>
<h2>4. What’s legal isn’t always morally correct</h2>
<p>Finally, and perhaps most importantly: Moral boundaries to acceptable speech are different, and often much narrower, than constitutional boundaries. They should not be conflated or confused.</p>
<p>The First Amendment right to speak freely as an exercise of people’s natural rights does not mean everything anyone says anywhere is morally acceptable. Constitutionally speaking, ignorant, demeaning and vitriolic speech – including hate speech – are all protected from government repression, even though they may be morally offensive to the majority.</p>
<p>Still, some people insist that malicious and emotionally hurtful speech <a href="https://www.theatlantic.com/education/archive/2017/07/why-its-a-bad-idea-to-tell-students-words-are-violence/533970/">adds no value to society</a>. That is one reason used by people who seek to <a href="https://www.theatlantic.com/education/archive/2017/07/why-its-a-bad-idea-to-tell-students-words-are-violence/533970/">cancel or ban controversial speakers from college campuses</a>. </p>
<p>Indeed, virulent speech may even <a href="https://www.nytimes.com/2022/03/18/opinion/cancel-culture-free-speech-poll.html">weaken the democratic exchange of ideas</a>, by discouraging some people from participating in public discussion and debate, to avoid potential harassment and scorn. </p>
<p>Nonetheless, that sort of speech remains firmly under the umbrella of First Amendment defenses. Each person must decide how their own humanity and morality allows them to speak for themselves.</p><img src="https://counter.theconversation.com/content/197604/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lynn Greenky does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>‘Congress shall make no law … abridging the freedom of speech.’ It’s often misunderstood, by many Americans. A constitutional scholar explains what it really boils down to.Lynn Greenky, Associate Professor of Communication and Rhetorical Studies, Syracuse UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1989762023-02-03T00:31:36Z2023-02-03T00:31:36ZWaitangi Day 2023: why Article 3 of the Treaty deserves more attention in the age of ‘co-governance’<figure><img src="https://images.theconversation.com/files/507977/original/file-20230202-13499-md4bol.jpg?ixlib=rb-1.1.0&rect=12%2C12%2C4268%2C2811&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Getty Images</span></span></figcaption></figure><p>The heated (and often confused) debate about “<a href="https://www.1news.co.nz/2022/08/11/explainer-what-is-co-governance/">co-governance</a>” in Aotearoa New Zealand inevitably leads back to its source, <a href="https://www.archives.govt.nz/discover-our-stories/the-treaty-of-waitangi">Te Tiriti o Waitangi</a>. But, as its long-contested meanings demonstrate, very little in the Treaty of Waitangi is straightforward.</p>
<p>Two versions of the 1840 document were written, one <a href="https://nzhistory.govt.nz/politics/treaty/read-the-treaty/english-text">in English</a> and one in <a href="https://nzhistory.govt.nz/politics/treaty/read-the-treaty/maori-text">te reo</a> Māori. About 540 Māori, including 13 women, had put their names or <a href="https://maoridictionary.co.nz/word/4170">moko</a> to the document. All but 39 <a href="https://nzhistory.govt.nz/politics/treaty/making-the-treaty/signing-the-treaty#:%7E:text=Gathering%20signatures%20from%20around%20the,Waitangi%20on%206%20February%201840.">signed the Māori text</a>.</p>
<p>But the <a href="https://nzhistory.govt.nz/politics/treaty/read-the-Treaty/differences-between-the-texts">differences in the translations</a> were so significant that there has been debate ever since about what much of this agreement actually meant, especially Articles 1 and 2.</p>
<p>Article 3, on the other hand, attracts less controversy – which is interesting, because it was and is critical to debates such as the one swirling around co-governance. In effect, Article 3 acted as a mechanism by which the <a href="https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_68338112/Maori%20Electoral%20Option%201994.pdf">fundamental rights and privileges</a> of British citizenship would be afforded Māori.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/507978/original/file-20230202-16618-7ntl8j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/507978/original/file-20230202-16618-7ntl8j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/507978/original/file-20230202-16618-7ntl8j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=772&fit=crop&dpr=1 600w, https://images.theconversation.com/files/507978/original/file-20230202-16618-7ntl8j.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=772&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/507978/original/file-20230202-16618-7ntl8j.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=772&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/507978/original/file-20230202-16618-7ntl8j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=971&fit=crop&dpr=1 754w, https://images.theconversation.com/files/507978/original/file-20230202-16618-7ntl8j.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=971&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/507978/original/file-20230202-16618-7ntl8j.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=971&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">William Hobson, circa 1840.</span>
<span class="attribution"><span class="source">Getty Images</span></span>
</figcaption>
</figure>
<p>In the English language version, the Crown promises the Queen’s “royal protection and imparts to them all the Rights and Privileges of British Subjects”. In te reo, the Crown gave an assurance that Māori would have the Queen’s protection and all rights accorded to British subjects.</p>
<p>The promise of these rights and privileges, coupled with Articles 1 and 2, conferred a fundamental commitment of a <a href="https://waitangitribunal.govt.nz/assets/Documents/Publications/WT-Principles-of-the-Treaty-of-Waitangi-as-expressed-by-the-Courts-and-the-Waitangi-Tribunal.pdf">partnership</a>, in which the two sides could be expected to act reasonably, honourably and in good faith towards each other.</p>
<p>Although there were many British laws, practices and principles in existence by this time, four particularly stand out.</p>
<h2>Participation</h2>
<p>The ideal was that laws reflected the community (or a portion of it at least) and were made with the participation and consent of citizens. This was a long-standing principle, in that law and governance could not be something arbitrary or controlled absolutely by one person.</p>
<p>There had been efforts to control royal abuses of power since the <a href="https://www.parliament.uk/about/living-heritage/evolutionofparliament/originsofparliament/birthofparliament/overview/magnacarta/">Magna Carta</a> in 1215 and the establishment of a “common council of the kingdom”, by which high-ranking community leaders could be summoned to discuss important matters.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-growing-number-of-non-maori-new-zealanders-are-embracing-learning-te-reo-but-theres-more-to-it-than-language-198154">A growing number of non-Māori New Zealanders are embracing learning te reo – but there's more to it than language</a>
</strong>
</em>
</p>
<hr>
<p>Later, the 1688 <a href="https://www.legislation.gov.uk/aep/WillandMarSess2/1/2/introduction">Bill of Rights</a> required free and frequent parliaments which would contain the right of free speech within them (parliamentary privilege in today’s terms). This meant representatives could speak without fear. Monarchs could no longer suspend laws on a whim, levy taxes at their pleasure, or maintain a standing army during peacetime without the permission of parliament.</p>
<p>The anomaly that only about 5% of British citizens (wealthy and entitled men) could actually vote for members of parliament was not resolved until <a href="https://www.parliament.uk/about/living-heritage/evolutionofparliament/houseofcommons/reformacts/overview/reformact1832/">legal reform</a> in the early 1830s. This began the expansion of the political franchise and the widening of control over parliament.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/507979/original/file-20230202-19461-cm8k8l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/507979/original/file-20230202-19461-cm8k8l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=340&fit=crop&dpr=1 600w, https://images.theconversation.com/files/507979/original/file-20230202-19461-cm8k8l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=340&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/507979/original/file-20230202-19461-cm8k8l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=340&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/507979/original/file-20230202-19461-cm8k8l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=427&fit=crop&dpr=1 754w, https://images.theconversation.com/files/507979/original/file-20230202-19461-cm8k8l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=427&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/507979/original/file-20230202-19461-cm8k8l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=427&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The British Houses of Parliament in the 1800s, source of the laws underpinning the articles of Te Tiriti o Waitangi.</span>
<span class="attribution"><span class="source">Getty Images</span></span>
</figcaption>
</figure>
<h2>Individual rights</h2>
<p>All were deemed equal in the eyes of the law, and the delivery of justice with integrity could be expected. Clause 39 of the Magna Carta stated:</p>
<blockquote>
<p>No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.</p>
</blockquote>
<p>Clause 40 added: “To no one will we sell, to no one deny or delay right or justice.” The <a href="https://www.legislation.gov.uk/aep/Cha2/31/2">Habeas Corpus Act</a> of 1679 required a court to examine the lawfulness of a prisoner’s detention, thus preventing unlawful or arbitrary imprisonment.</p>
<p>The Bill of Rights prohibited excessive penalties, cruel and unusual punishment, and the imposition of fines or penalties before convictions. It also guaranteed the right for all citizens to petition, where they could complain or seek help from the authorities, without fear of punishment.</p>
<h2>Tolerance and a free press</h2>
<p>After the Reformation, religious tolerance among British subjects took centuries to develop. The 1701 Toleration Act allowed some <a href="https://www.parliament.uk/about/living-heritage/transformingsociety/private-lives/religion/overview/catholicsnonconformists-/#:%7E:text=Toleration%20for%20nonconformists&text=In%201689%2C%20after%20much%20debate,of%20the%20oath%20of%20allegiance.">tolerance</a> of the public practising of different religions, although the monarch could never be Catholic. But it was not until 1829 that <a href="https://www.parliament.uk/about/living-heritage/evolutionofparliament/2015-parliament-in-the-making/get-involved1/2015-banners-exhibition/rachel-gadsden/1829-catholic-emancipation-act-gallery/#:%7E:text=In%20the%201828%20County%20Clare,Irish%20peasants%20entitled%20to%20vote.">Catholics</a> – and some other faiths – could even be elected to parliament in Britain.</p>
<p>The importance of tolerance can be seen in the <a href="https://www.tepapa.govt.nz/discover-collections/read-watch-play/maori/treaty-waitangi/treaty-close/content-treaty-waitangi">oral promise</a> made by Governor William Hobson at the time of the signing the Treaty: all established religious faiths would be tolerated in New Zealand, “and also Māori custom shall be alike protected by him”. Although an oral commitment, to many signatories it was just as binding as the written words.</p>
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Read more:
<a href="https://theconversation.com/putting-te-tiriti-at-the-centre-of-aotearoa-new-zealands-public-policy-can-strengthen-democracy-heres-how-180305">Putting te Tiriti at the centre of Aotearoa New Zealand’s public policy can strengthen democracy – here's how</a>
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<p>Public debate and the role of a free press was another important privilege. Although British laws governing libel, blasphemy and sedition were continued after 1688, there was a clear trend toward expanding liberty, allowing both booksellers and newspapers to proliferate. </p>
<p>This helped build the modern belief in the “fourth estate”, and that the media would act as a positive influence on decision makers.</p>
<h2>Forward together</h2>
<p>Despite the fine sounding language of Article 3 and all the expectations that went with it, the reality was that for many decades after 1840, the promised rights and privileges did not arrive for everyone.</p>
<p>The governor, followed by the early stages of representative government, ruled with a near absolute power that crushed dissent. The law itself was often used to target the rights and privileges of Māori, with some of the darkest examples occurring during and after the New Zealand Wars/Ngā Pakanga o Aotearoa.</p>
<p><a href="https://waitangitribunal.govt.nz/inquiries/district-inquiries/te-paparahi-o-te-raki-northland">Equality</a> for most was largely a chimera, tolerance was elusive, and the press did not act as a brake on atrocious decision making.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/the-crown-is-maori-too-citizenship-sovereignty-and-the-treaty-of-waitangi-111168">The Crown is Māori too - citizenship, sovereignty and the Treaty of Waitangi</a>
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<p>Thankfully, the world is different today. Positive change has happened through successive generations of Māori defending the rights guaranteed in 1840, the Waitangi Tribunal, and the critical questioning of early and contemporary government policies by Māori, politicians, community leaders, media and scholars. </p>
<p>There have been official apologies, compensation and redress, although only a portion of what was alienated has been returned.</p>
<p>As we move forward and look for new ways to work together to achieve equal and equitable partnership based on Te Tiriti o Waitangi, it is important to remember the relevance of Article 3 and what it continues to offer in a modern context.</p><img src="https://counter.theconversation.com/content/198976/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Article 3 of Te Tiriti o Waitangi gave Māori the fundamental rights and freedoms guaranteed under British law. Understanding it is critical to modern debates over ‘co-governance’ and partnership.Alexander Gillespie, Professor of Law, University of WaikatoClaire Breen, Professor of Law, University of WaikatoValmaine Toki, Professor of Law, University of WaikatoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1947412022-11-24T13:51:34Z2022-11-24T13:51:34ZSimon Nkoli’s fight for queer rights in South Africa is finally being celebrated – 24 years after he died<figure><img src="https://images.theconversation.com/files/496715/original/file-20221122-21-6degfb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Simon Nkoli (left) with activist and physician Ivan Toms in 1989. </span> <span class="attribution"><span class="source">Courtesy Julia Nicol Collection/GALA Queer Archive</span></span></figcaption></figure><p>Born in 1957, <a href="https://www.sahistory.org.za/people/simon-nkoli">Simon Tseko Nkoli</a> had just turned 41 when he died, in 1998, of an AIDS-related illness. In his short life, the South African activist fought against different forms of oppression. He fought for those downtrodden because of their “race”. He stood up for those ostracised because of their HIV status. His greatest fight, though, was for those persecuted because of their sexual orientation.</p>
<p>Nkoli was born and raised in <a href="https://www.sahistory.org.za/place/soweto-johannesburg">Soweto</a>, the largest black township in a South Africa ruled by a white minority who enforced <a href="https://www.sahistory.org.za/article/history-apartheid-south-africa">apartheid</a>, a system of racial segregation. His activism began in 1980 when he joined the <a href="https://www.sahistory.org.za/article/congress-south-african-students-cosas">Congress of South African Students</a>, a youth organisation fighting apartheid. </p>
<p>In 1984, Nkoli was arrested and became a trialist in the <a href="https://repository.up.ac.za/handle/2263/63470">Delmas Treason Trial</a>. During his imprisonment, he came out as gay to his comrades. This caused much debate in the liberation movement but it was important in changing the attitude of the <a href="https://www.sahistory.org.za/article/african-national-congress-anc">African National Congress</a> (ANC) to gay rights. The ANC would go on to govern the country with the advent of democracy in 1994, helping shape the first <a href="https://www.concourt.org.za/index.php/gay-and-lesbian-rights">constitution</a> in the world to outlaw discrimination based on sexual orientation. Nkoli was responsible for setting up diverse projects including organising the <a href="https://www.sahistory.org.za/dated-event/first-gay-pride-march-held-south-africa">first Pride march</a> in Africa. </p>
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<img alt="A man holds up his fist, a garland of flowers around his neck, a banner behind him." src="https://images.theconversation.com/files/496741/original/file-20221122-14-azc0hg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/496741/original/file-20221122-14-azc0hg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=815&fit=crop&dpr=1 600w, https://images.theconversation.com/files/496741/original/file-20221122-14-azc0hg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=815&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/496741/original/file-20221122-14-azc0hg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=815&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/496741/original/file-20221122-14-azc0hg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1025&fit=crop&dpr=1 754w, https://images.theconversation.com/files/496741/original/file-20221122-14-azc0hg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1025&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/496741/original/file-20221122-14-azc0hg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1025&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Nkoli at an anti-apartheid protest in the UK.</span>
<span class="attribution"><span class="source">Gordon Rainsford/Simon Nkoli Collection/GALA Queer Archive</span></span>
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<p>There has been a growing wave of interest in Nkoli’s life. South African musician <a href="https://www.groundup.org.za/article/musician-who-sings-gay-songs-isixhosa/">Majola</a> sings about queer love in isiXhosa, one of the country’s most widely spoken languages. His 2017 album Boet/Sissy has a <a href="https://www.youtube.com/watch?v=9ltEPTp0Tdw">song</a> dedicated to the activist. Also noteworthy is the South African artist <a href="https://www.whatiftheworld.com/artist/athi-patra-ruga/">Athi-Patra Ruga</a>’s <a href="https://zeitzmocaa.museum/art/proposed-model-for-tseko-simon-nkoli-memorial/athi-patra-ruga-proposed-model-for-tseko-simon-nkoli-memorial/">sculptural work</a> on Nkoli. A new South African musical production by composer <a href="https://www.philipmiller.co.za">Philip Miller</a> called <a href="https://www.timeslive.co.za/sunday-times/lifestyle/2022-10-23-new-show-glow-celebrates-sas-queer-freedom-fighter-simon-nkoli/">GLOW: The Life and Trials of Simon Nkoli </a> is set to launch in 2023. </p>
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Read more:
<a href="https://theconversation.com/desmond-tutus-long-history-of-fighting-for-lesbian-and-gay-rights-131598">Desmond Tutu's long history of fighting for lesbian and gay rights</a>
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<p>The annual <a href="https://simonnkolicollective.wordpress.com/2018/10/04/simon-nkoli-memorial-lecture-an-introduction/">Simon Nkoli Memorial Lecture</a> is another event that celebrates the legacy of the late activist. The <a href="https://twitter.com/unisachs/status/1590342469593464832">ninth edition</a> was held in November 2022, co-organised by the <a href="https://simonnkolicollective.wordpress.com/">Simon Nkoli Collective</a>, where I gave the keynote address. </p>
<p>I argued that Nkoli’s activism highlighted the <a href="https://www.globalcitizen.org/en/content/what-is-intersectionality-explained/">intersectionality</a> of systems of oppression. Intersectionality refers to how multiple social struggles are interlinked. It recognises the interconnectedness of various systems of oppression such as racism, sexism and homophobia. </p>
<p>Nkoli was acutely aware of how these were interrelated and this article considers what can be learnt from his activism today.</p>
<h2>Intersectional systems of oppression</h2>
<p>In a compelling speech in 1990 before the first Pride march in Johannesburg, organised by the <a href="https://www.gala.co.za/resources/docs/Archival_collection_articles/GLOW.pdf">Gay and Lesbian Organisation of the Witwatersrand (GLOW)</a>, Nkoli said:</p>
<blockquote>
<p>This is what I say to my comrades in the struggle when they ask me why I waste time fighting for moffies (a deregatory Afrikaans language term that means faggot). This is what I say to gay men and lesbians who ask me why I spend so much time struggling against apartheid when I should be fighting for gay rights. I am black and I am gay. I cannot separate the two parts into secondary and primary struggles. In South Africa I am oppressed because I am a black man, and I am oppressed because I am gay. So, when I fight for my freedom, I must fight against both oppressors.</p>
</blockquote>
<p>Nkoli recognised that the struggles of queer folk are linked to the struggles of women and that the struggles of queer folk and women cannot be disconnected from those of black people.</p>
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<p>He was, however, aware of the fact that the intersectionality of struggles had its limits. Although queer people of different classes and races marched together in 1990, he was not so shortsighted that he believed all those people were considered equal. He explained in a <a href="https://www.youtube.com/watch?v=6EdHmZ1xRGc&t=1310s">1989 interview</a> that even within the queer liberation movement there were splinters due mainly to racial differences. </p>
<p>Nkoli’s activism ensured that the rights of sexual minorities were enshrined in the <a href="https://www.concourt.org.za/index.php/constitution/your-rights/the-bill-of-rights">Bill of Rights</a> of South Africa’s constitution of 1994. This was done through the advocacy work of organisations like the National Coalition for Gay and Lesbian Equality that brought together diverse organisations. </p>
<h2>What we can learn from Nkoli today?</h2>
<p>We learn from Simon Nkoli that the fight for social justice and social equality demands collaborative and joint efforts. I muse at the isiZulu language term for intersectionality coined by a student activist, Zandile Manzini: “<a href="https://twitter.com/PanasheChig/status/711149927242534914">ukuhlangana kobuntu</a>”. Any sustainable forms of fighting against social inequality are built on the idea of returning the humanness to people. Fighting oppression demands that the humanity and the dignity of everyone is respected regardless of social class, race, ethnicity, political affiliation, sexual orientation, gender identity or nationality.</p>
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<a href="https://images.theconversation.com/files/496746/original/file-20221122-20-obu6wn.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Four people of differing ages pose with an elderly man in a nondescript office setting. They smile at the camera." src="https://images.theconversation.com/files/496746/original/file-20221122-20-obu6wn.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/496746/original/file-20221122-20-obu6wn.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=403&fit=crop&dpr=1 600w, https://images.theconversation.com/files/496746/original/file-20221122-20-obu6wn.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=403&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/496746/original/file-20221122-20-obu6wn.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=403&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/496746/original/file-20221122-20-obu6wn.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=507&fit=crop&dpr=1 754w, https://images.theconversation.com/files/496746/original/file-20221122-20-obu6wn.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=507&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/496746/original/file-20221122-20-obu6wn.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=507&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">The president meets gay and lesbian activists, 1995. From left: actor Ian McKellen, activist Phumi Mtetwa, Nelson Mandela and Simon Nkoli.</span>
<span class="attribution"><span class="source">Courtesy the National Coalition for Gay & Lesbian Equality Collection/GALA Queer Archive</span></span>
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<p>Retired South African judge Edwin Cameron, himself openly gay and living with HIV, explained Nkoli’s legacy at the opening of the <a href="https://www.youtube.com/watch?v=bNxThs1O45A&t=176s">Simon Nkoli exhibition</a> at the Stellenbosch University Museum in 2019. He said that Nkoli’s activism crossed boundaries and had resonated in many other parts of the continent.</p>
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Read more:
<a href="https://theconversation.com/south-african-singer-nakhane-redefines-ideas-of-masculinity-144957">South African singer Nakhane redefines ideas of masculinity</a>
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<p>As artists and activists commemorate and celebrate the life and legacy of Nkoli, let us remember his fight for the creation of a democratic South Africa in which all people could live dignified lives without fear of discrimination. As we remember Nkoli, we should think through what other fights still need to be fought, what systems of oppression still need to be unbuckled and what solidarities still need to be forged.</p><img src="https://counter.theconversation.com/content/194741/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gibson Ncube does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The activist is today the subject of songs, sculptures, an annual lecture and even a new musical.Gibson Ncube, Lecturer, Stellenbosch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1920032022-10-28T12:30:49Z2022-10-28T12:30:49ZThe White House’s ‘AI Bill of Rights’ outlines five principles to make artificial intelligence safer, more transparent and less discriminatory<figure><img src="https://images.theconversation.com/files/492180/original/file-20221027-21-2gwe3k.jpg?ixlib=rb-1.1.0&rect=186%2C71%2C4465%2C2850&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Many AI algorithms, like facial recognition software, have been shown to be discriminatory to people of color.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/mature-african-man-scanning-his-face-with-mobile-royalty-free-image/1209011777?phrase=facial%20recognition%20black%20person&adppopup=true">Prostock-Studio/iStock via Getty Images</a></span></figcaption></figure><p>Despite the important and ever-increasing role of artificial intelligence in many parts of modern society, there is very little policy or regulation governing the development and use of AI systems in the U.S. Tech companies have largely been left to regulate themselves in this arena, potentially leading to decisions and situations that have garnered criticism. </p>
<p>Google <a href="https://www.wired.com/story/google-timnit-gebru-ai-what-really-happened/">fired an employee</a> who publicly raised concerns over how a certain type of AI can contribute to <a href="https://www.washington.edu/news/2021/03/10/large-computer-language-models-carry-environmental-social-risks/">environmental and social problems</a>. Other AI companies have developed products that are used by organizations <a href="https://theintercept.com/2021/01/30/lapd-palantir-data-driven-policing/">like the Los Angeles Police Department</a> where they have been shown to <a href="https://www.technologyreview.com/2020/07/17/1005396/predictive-policing-algorithms-racist-dismantled-machine-learning-bias-criminal-justice/">bolster existing racially biased policies</a>. </p>
<p>There are some government <a href="https://www.gao.gov/products/gao-21-519sp">recommendations</a> and <a href="https://www.ftc.gov/business-guidance/blog/2021/04/aiming-truth-fairness-equity-your-companys-use-ai">guidance</a> regarding AI use. But in early October 2022, the White House Office of Science and Technology Policy added to federal guidance in a big way by releasing the <a href="https://www.whitehouse.gov/ostp/ai-bill-of-rights/">Blueprint for an AI Bill of Rights</a>. </p>
<p>The Office of Science and Technology says that the protections outlined in the document should be applied to all automated systems. The <a href="https://www.whitehouse.gov/ostp/ai-bill-of-rights/">blueprint</a> spells out “five principles that should guide the design, use, and deployment of automated systems to protect the American public in the age of artificial intelligence.” The hope is that this document can act as a guide to help prevent AI systems from limiting the rights of U.S. residents. </p>
<p><a href="https://scholar.google.com/citations?user=5zZFOikAAAAJ&hl=en&oi=ao">As a computer scientist</a> who studies the ways people interact with AI systems – and in particular how anti-Blackness mediates those interactions – I find this guide a step in the right direction, even though it has some holes and is not enforceable.</p>
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<a href="https://images.theconversation.com/files/492136/original/file-20221027-37192-cl732q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of people sitting in chairs with one person raising their hand." src="https://images.theconversation.com/files/492136/original/file-20221027-37192-cl732q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/492136/original/file-20221027-37192-cl732q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=423&fit=crop&dpr=1 600w, https://images.theconversation.com/files/492136/original/file-20221027-37192-cl732q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=423&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/492136/original/file-20221027-37192-cl732q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=423&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/492136/original/file-20221027-37192-cl732q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=532&fit=crop&dpr=1 754w, https://images.theconversation.com/files/492136/original/file-20221027-37192-cl732q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=532&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/492136/original/file-20221027-37192-cl732q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=532&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">It is critically important to include feedback from the people who are going to to be most affected by an AI system – especially marginalized communities – during development.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/group-of-people-sitting-during-a-meeting-royalty-free-image/1423632924?phrase=diverse%20group%20feedback&adppopup=true">FilippoBacci/E+ via Getty Images</a></span>
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<h2>Improving systems for all</h2>
<p>The first two principles aim to address the safety and effectiveness of AI systems as well as the major risk of AI furthering discrimination.</p>
<p>To improve the safety and effectiveness of AI, the first principle suggests that AI systems should be developed not only by experts, but also with direct input from the people and communities who will use and be affected by the systems. Exploited and marginalized communities are often left to deal with the consequences of AI systems <a href="https://detroitcommunitytech.org/?q=datajustice">without having much say in their development</a>. Research has shown that <a href="https://morethancode.cc/2018/08/20/morethancode-full-report.html">direct and genuine community involvement in the development process is important</a> for deploying technologies that have a positive and lasting impact on those communities.</p>
<p>The second principle focuses on the <a href="https://www.microsoft.com/en-us/research/video/the-new-jim-code-reimagining-the-default-settings-of-technology-society/">known problem of algorithmic discrimination</a> within AI systems. A well-known example of this problem is how <a href="https://apnews.com/article/lifestyle-technology-business-race-and-ethnicity-racial-injustice-b920d945a6a13db1e1aee44d91475205">mortgage approval algorithms discriminate against minorities</a>. The document asks for companies to develop AI systems that do not treat people differently based on their race, sex or other <a href="https://www.senate.ca.gov/content/protected-classes">protected class status</a>. It suggests companies employ tools such as equity assessments that can help assess how an AI system may impact members of exploited and marginalized communities.</p>
<p>These first two principles address big issues of bias and fairness found in AI development and use.</p>
<h2>Privacy, transparency and control</h2>
<p>The final three principles outline ways to give people more control when interacting with AI systems. </p>
<p>The third principle is on data privacy. It seeks to ensure that people have more say about how their data is used and are protected from abusive data practices. This section aims to address situations where, for example, companies use <a href="https://www.deceptive.design/">deceptive design</a> to manipulate users into <a href="https://www.theverge.com/2021/3/16/22333506/california-bans-dark-patterns-opt-out-selling-data">giving away their data</a>. The blueprint calls for practices like not taking a person’s data unless they consent to it and asking in a way that is understandable to that person.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/492128/original/file-20221027-13-naukmp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A speaker sitting on a table." src="https://images.theconversation.com/files/492128/original/file-20221027-13-naukmp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/492128/original/file-20221027-13-naukmp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/492128/original/file-20221027-13-naukmp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/492128/original/file-20221027-13-naukmp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/492128/original/file-20221027-13-naukmp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/492128/original/file-20221027-13-naukmp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/492128/original/file-20221027-13-naukmp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Smart speakers have been caught collecting and storing conversations without users’ knowledge.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/digital-background-smart-assistant-royalty-free-image/1320780003">Olemedia/E+ via Getty Images</a></span>
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</figure>
<p>The next principle focuses on “notice and explanation.” It highlights the importance of transparency – people should know how an AI system is being used as well as the ways in which an AI contributes to outcomes that might affect them. Take, for example the New York City Administration for Child Services. Research has shown that the agency uses <a href="https://doi.org/10.52214/cjrl.v11i4.8741">outsourced AI systems to predict child maltreatment</a>, systems that most people don’t realize are being used, even when they are being investigated.</p>
<p>The AI Bill of Rights provides a guideline that people in New York in this example who are affected by the AI systems in use should be notified that an AI was involved and have access to an explanation of what the AI did. Research has shown that building transparency into AI systems can <a href="https://hbr.org/2022/06/building-transparency-into-ai-projects">reduce the risk of errors or misuse</a>.</p>
<p>The last principle of the AI Bill of Rights outlines a framework for human alternatives, consideration and feedback. The section specifies that people should be able to opt out of the use of AI or other automated systems in favor of a human alternative where reasonable. </p>
<p>As an example of how these last two principles might work together, take the case of someone applying for a mortgage. They would be informed if an AI algorithm was used to consider their application and would have the option of opting out of that AI use in favor of an actual person.</p>
<h2>Smart guidelines, no enforceability</h2>
<p>The five principles laid out in the AI Bill of Rights address many of the issues scholars have raised over the design and use of AI. Nonetheless, this is a nonbinding document and not currently enforceable. </p>
<p>It may be too much to hope that industry and government agencies will put these ideas to use in the exact ways the White House urges. If the ongoing regulatory battle over data privacy offers any guidance, tech companies will <a href="https://fortune.com/2022/05/18/private-sector-online-privacy-health-apps-data/">continue to push for self-regulation</a>.</p>
<p>One other issue that I see within the AI Bill of Rights is that it fails to directly call out <a href="https://www.blackpast.org/african-american-history/combahee-river-collective-statement-1977/">systems of oppression</a> – like <a href="https://theconversation.com/explainer-what-is-systemic-racism-and-institutional-racism-131152">racism</a> or sexism – and how they can influence the use and development of AI. For example, studies have shown that inaccurate assumptions built into AI algorithms used in health care have led to <a href="https://www.theguardian.com/society/2019/oct/25/healthcare-algorithm-racial-biases-optum">worse care for Black patients</a>. I have argued that anti-Black racism should be <a href="https://ieeexplore.ieee.org/document/9606203">directly addressed when developing AI systems</a>. While the AI Bill of Rights addresses ideas of bias and fairness, the lack of focus on systems of oppression is a notable hole and a <a href="https://doi.org/10.1145/3531146.3533157">known issue within AI development</a>.</p>
<p>Despite these shortcomings, this blueprint could be a positive step toward better AI systems, and maybe the first step toward regulation. A document such as this one, even if not policy, can be a powerful reference for people advocating for changes in the way an organization develops and uses AI systems.</p><img src="https://counter.theconversation.com/content/192003/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Christopher Dancy receives funding from the National Science Foundation for his work on AI. </span></em></p>Many AI algorithms, like facial recognition software, have been shown to be discriminatory to people of color, especially those who are Black.Christopher Dancy, Associate Professor of Industrial & Manufacturing Engineering and Computer Science & Engineering, Penn StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1904922022-09-16T12:17:56Z2022-09-16T12:17:56ZQueen Elizabeth II ascended to the throne at a time of deep religious divisions and worked to bring tolerance<figure><img src="https://images.theconversation.com/files/484357/original/file-20220913-4826-8wgrqe.jpg?ixlib=rb-1.1.0&rect=5%2C0%2C1941%2C1339&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In her efforts to build a new relationship with the Catholic Church, Queen Elizabeth II had interactions with several pontiffs. She is seen here with Pope John Paul II. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/BritainQueensReignPhotoGallery/bc023d4fdcf446b1a44081e39bf7facd/photo?Query=queen%20Pope%20John%20Paul%20II&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=48&currentItemNo=20">AP Photo/Alessandro Bianchi, Pool, File</a></span></figcaption></figure><p>Thousands of Christian cathedrals and churches <a href="https://www.npr.org/2022/06/13/1104560863/queen-elizabeth-ii-is-the-second-longest-reigning-monarch-in-history">rang their bells</a> for an hour at noon the day after Queen Elizabeth II died in honor of the 96-year-old monarch and her 70 years of service as queen of the United Kingdom.</p>
<p>The ringing of church bells across the country on the death of the monarch is a custom dating back to the early 13th century in Great Britain. As an <a href="https://college.holycross.edu//faculty/jpierce/">expert in medieval liturgy</a> and longtime participant in official <a href="https://www.usccb.org/committees/ecumenical-interreligious-affairs/interreligious">dialogue between</a> the Episcopal Church – a member of the community of global Anglican churches – and the Roman Catholic Church in the United States, the sound had a special poignance for me, and I thought of the queen’s lifelong commitment to British religious life. </p>
<p>Based on her Christian faith, the Queen encouraged dialogue and tolerance among different Christian churches and with other religions as well. This is especially true of the two oldest faiths in Great Britain: Catholicism and Judaism. </p>
<p>But to appreciate the significance of her efforts, it is necessary to understand the complicated history of these religions in the United Kingdom. </p>
<h2>‘Defender of the Faith’</h2>
<p>For centuries, English monarchs reigned as king or queen of England. But since the 16th century, they have also <a href="https://religionnews.com/2022/06/03/elizabeth-iis-70-years-as-head-of-the-church-of-england/">held the titles</a> Defender of the Faith and Supreme Governor of the Church of England. </p>
<p>King Henry VIII received the title <a href="https://blogs.bl.uk/digitisedmanuscripts/2020/07/defender-of-the-faith.html">Defender of the Faith</a> from Pope Leo X, then head of the Catholic Church, in 1521 after the king published a rebuttal of the ideas of Martin Luther, whose reforms launched the Protestant Reformation. Henry retained this title even after later breaking from the authority of the pope, titling himself Head of the Church in England. </p>
<p>With the exception of his Catholic successor – his daughter Mary I – all British monarchs have retained this title.</p>
<p>In the 17th century, some of the kings of England became personally sympathetic toward Catholicism. This was so unpopular that in 1689, <a href="https://www.parliament.uk/about/living-heritage/transformingsociety/private-lives/religion/overview/catholicsnonconformists-/#">Parliament passed a Bill of Rights</a>, forbidding Catholics from ascending to the throne; it remains in force today. Until the 2013 Succession to the Crown Act, <a href="https://www.bbc.com/news/uk-32073399">sovereigns were forbidden</a> to even marry Catholics.</p>
<p>After the 1707 passage of the <a href="https://www.parliament.uk/globalassets/documents/heritage/articlesofunion.pdf">Articles of Union</a>, these kings and queens reigned over an expanded realm consisting of England, Scotland and Ireland – the United Kingdom – but retained leadership only of the Church of England, the Anglican Church.</p>
<p>Most Irish were Catholic, while the <a href="https://www.churchofscotland.org.uk/about-us/our-structure">Church of Scotland was Presbyterian</a>. This Protestant church eliminated the ancient office of bishop and placed leadership in the hands of ordinary pastors, called presbyters or elders. </p>
<p>In the Articles of Union, the British monarch <a href="https://www.churchofscotland.org.uk/about-us/church-law/church-constitution#article1">guaranteed the rights of the Presbyterian Church of Scotland</a>, and every monarch since has sworn an oath to uphold them upon ascending to the throne.</p>
<p>No such protection was guaranteed to any other church or religion.</p>
<h2>Continuing problems in Catholic Ireland</h2>
<p>In 1649, King Charles I, who favored Catholicism, was <a href="https://www.nam.ac.uk/explore/british-civil-wars">deposed and executed by Parliament</a> after a bloody civil war. The <a href="https://academic.oup.com/book/40084/chapter-abstract/341041967?redirectedFrom=fulltext">invasion of Catholic Ireland</a> by Oliver Cromwell, a former member of Parliament, followed soon after, resulting in brutal massacres. Although the English monarchy was <a href="https://academic.oup.com/book/430/chapter-abstract/135223697?redirectedFrom=fulltext">restored in England and Ireland</a> in 1660, restrictions on Catholics in Ireland and Britain continued long after. </p>
<p>The freedoms of non-Anglican groups, including Jews, continued to be curtailed through <a href="http://moses.law.umn.edu/irishlaws/intro.html">penal laws</a> until the 19th century. Tensions between Catholic Irish and Anglican British continued <a href="https://doi.org/10.1007/978-3-030-74373-4_4">even after the laws were repealed</a>.</p>
<p><a href="https://doi.org/10.1016/j.econmod.2010.01.016">They worsened</a> when the Irish economy and population were devastated by the <a href="https://www.parliament.uk/about/living-heritage/evolutionofparliament/legislativescrutiny/parliamentandireland/overview/the-great-famine/">Irish Potato Famine</a>, beginning in 1845, and Parliament was slow to respond.</p>
<h2>Judaism in England</h2>
<p>For two centuries, small communities of Jews in Britain lived quietly, protected by the British monarchy. They faced growing hostility in the 13th century due to the Crusades, religious wars to capture the Holy Land from its Muslim rulers, when Christian attitudes toward “foreign” religions hardened. </p>
<p>Since only <a href="https://doi.org/10.2307/2854044">Jews were allowed to lend money and collect interest</a> – Christians considered this a sin – nobles in debt began to accuse Jewish lenders of “usury,” charging exorbitant interest on loans. They pressured the crown to take action, and in 1290, King Edward I <a href="https://www.history.ox.ac.uk/::ognode-637356::/files/download-resource-printable-pdf-5">expelled all Jews from the kingdom</a>. They were not allowed to return until the 17th century by law. </p>
<p>Under Cromwell, Jews were unofficially allowed to return to England. Some were already residents there, including <a href="https://www.google.com/books/edition/The_Jews_of_Britain_1656_to_2000/RNyvgPAuvhAC?hl=en&gbpv=1&pg=PA26&printsec=frontcover">New Christians</a> – Spanish Jews who had at least superficially converted to Christianity to avoid expulsion from Spain after 1492. Gradually, other groups of openly Jewish refugees were unofficially <a href="https://victorianweb.org/religion/judaism/gossman2.html">allowed to resettle in England</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/484379/original/file-20220913-4760-j43d1i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of young people waving while aboard a ship." src="https://images.theconversation.com/files/484379/original/file-20220913-4760-j43d1i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/484379/original/file-20220913-4760-j43d1i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=464&fit=crop&dpr=1 600w, https://images.theconversation.com/files/484379/original/file-20220913-4760-j43d1i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=464&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/484379/original/file-20220913-4760-j43d1i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=464&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/484379/original/file-20220913-4760-j43d1i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=584&fit=crop&dpr=1 754w, https://images.theconversation.com/files/484379/original/file-20220913-4760-j43d1i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=584&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/484379/original/file-20220913-4760-j43d1i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=584&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Young Jewish refugees arrive in Harwich, England, from Germany, on Dec. 2, 1937.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/PersecutedJewsInEngland1937/251d7cb657524bacb21b401978c990c9/photo?Query=jews%20england&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=28&currentItemNo=22">AP Photo</a></span>
</figcaption>
</figure>
<p>As Jewish immigration increased throughout the 18th and 19th centuries, restrictions were lifted and Jewish business <a href="https://www.jstor.org/stable/29778906">became an important part of</a> the British economy. <a href="https://theconversation.com/bevis-marks-britains-oldest-synagogue-is-central-to-londons-history-heres-why-it-needs-protecting-170326">Synagogues were constructed</a> in London and <a href="https://www.jewishgen.org/jcr-uk/Community/leeds/articles/leeds-vic3.htm">other major British cities</a> at this time, and worship was openly permitted. <a href="https://www.legislation.gov.uk/ukpga/Vict/21-22/49/enacted">The Jews Relief Act of 1858</a> granted Jews the right to serve in Parliament. Despite this, <a href="https://www.cambridge.org/core/books/abs/cambridge-history-of-judaism/jews-of-great-britain-16501815/627C706CD6DF45A84E64140F287DBFD5">antisemitism remained a strong part</a> of British social and cultural life.</p>
<h2>The queen and the past</h2>
<p>In the early decades of the 20th century, British monarchs <a href="https://www.historyandpolicy.org/opinion-articles/articles/visiting-the-pope-the-monarchs-private-visit">began to adopt a more tolerant attitude</a>. The Queen’s great-grandfather, King Edward VII, <a href="https://www.cambridge.org/us/academic/subjects/history/british-history-after-1450/monarchy-and-british-nation-1780-present?format=PB">took some important first steps</a>. But Queen Elizabeth II made dialogue with non-Anglican Christian churches and non-Christian religious communities <a href="https://www.woolf.cam.ac.uk/whats-on/news/statement-on-her-majesty-queen-elizabeth-ii-1">a priority during her reign</a>, <a href="https://www.state.gov/reports/2020-report-on-international-religious-freedom/united-kingdom/#:%7E:text=Census%20figures%20from%202011%2C%20the,percent%20Jewish%3B%20and%200.4%20Buddhist">recognizing the increasing reality of Great Britain</a>, especially England, as a multifaith nation. </p>
<p>In 1951, two years before Queen Elizabeth II took the throne, she met privately with Pope Pius XII – almost 400 years after Queen Elizabeth I was <a href="https://internetshakespeare.uvic.ca/doc/PapalBull1570_M/index.htm">officially excommunicated</a> by Pope Pius V for taking the title Supreme Head of the Church of England. </p>
<p>Queen Elizabeth II had a private audience with Pope John XXIII 10 years later – only the second reigning monarch of the U.K. to visit with any pope. </p>
<p>Her efforts to build a new relationship with the Catholic Church included ongoing interactions with the popes. An official state visit with Pope John Paul II followed in 1980, and that <a href="https://www.vaticannews.va/en/world/news/2020-05/john-paul-s-1982-visit-to-britain-an-extraordinary-event.html">pope made a pastoral visit to Great Britain</a> two years later — the first time any pope had ever traveled there. </p>
<p>Another private audience with John Paul II followed in 2000, and in 2010 the queen <a href="https://www.christiantoday.com/article/catholic.church.seeks.to.clarify.purpose.of.popes.visit/26105.htm">met with Pope Benedict XVI</a> during his official state visit to the U.K. In 2014, she met with Pope Francis at the Vatican, a meeting commemorating 100 years of <a href="https://www.catholicnewsagency.com/news/252238/queen-elizabeth-met-five-popes-in-her-lifetime">renewed diplomatic relations</a> between the two sovereign states.</p>
<p>Violent resistance and tension continued in the independent Republic of Ireland and the United Kingdom’s Northern Ireland over independence until the <a href="https://peaceaccords.nd.edu/accord/northern-ireland-good-friday-agreement">Good Friday peace accords</a> were approved by both sides in 1998. In 2011, the queen became the <a href="https://www.bbc.com/news/uk-northern-ireland-13420053">first reigning monarch to visit the Republic of Ireland</a>, a signal of support of the republic’s <a href="https://www.itv.com/news/utv/2022-09-09/an-historic-visit-reflections-on-queens-2011-trip-to-the-republic-of-ireland">independence</a> and what has been called one of the “<a href="https://www.itv.com/news/utv/2022-09-09/an-historic-visit-reflections-on-queens-2011-trip-to-the-republic-of-ireland">most significant</a>” acts of her long reign. </p>
<p>The Jewish community in Britain <a href="https://www.timesofisrael.com/queen-elizabeths-long-complex-relationship-with-the-british-jewish-community/">has also been supported</a> by the queen. Although she herself never visited Israel, <a href="https://www.jpost.com/israel-news/article-716696">several other members of the royal family did</a>. </p>
<p>The queen also received visits from several presidents of Israel. Several times, she participated in Holocaust commemorations and visited memorials, including <a href="https://www.cbsnews.com/news/queen-elizabeth-to-travel-to-nazi-concentration-camp/">a 2015 trip to the Bergen-Belsen concentration camp</a>, 70 years after it was liberated by the Allies. And in 2022, the Church of England issued <a href="https://www.jewishvirtuallibrary.org/church-of-england-on-christian-jewish-relations">an apology for its contribution to the expulsion of Jews</a> from England in the 13th century.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/484376/original/file-20220913-4760-lbjby7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Queen Elizabeth II and Prince Philip bending down to pay homage and lay a wreath at the Nazi concentration camp Bergen-Belsen on June 26, 2015." src="https://images.theconversation.com/files/484376/original/file-20220913-4760-lbjby7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/484376/original/file-20220913-4760-lbjby7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=386&fit=crop&dpr=1 600w, https://images.theconversation.com/files/484376/original/file-20220913-4760-lbjby7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=386&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/484376/original/file-20220913-4760-lbjby7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=386&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/484376/original/file-20220913-4760-lbjby7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=486&fit=crop&dpr=1 754w, https://images.theconversation.com/files/484376/original/file-20220913-4760-lbjby7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=486&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/484376/original/file-20220913-4760-lbjby7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=486&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Queen Elizabeth II participated in Holocaust commemorations and visited the Bergen-Belsen concentration camp in 2015.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/GermanyBritain/614ea48062434aab9398e7e622f24e51/photo?Query=queen%20visit%20concentration%20camps&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=42&currentItemNo=34">Julian Stratenschulte/Pool Photo via AP</a></span>
</figcaption>
</figure>
<p>In 2012, Jonathan Sacks, chief rabbi of the United Hebrew Congregations of the Commonwealth, called the queen the “<a href="https://www.rabbisacks.org/archive/the-queen-is-defender-of-all-britains-faiths/">Defender of all Britain’s Faiths</a>,” writing that, “No one does interfaith better than the Royal Family, and it begins with the Queen herself.”</p>
<h2>The king and the future</h2>
<p>Indeed, the former Prince of Wales suggested in 2015 that the title Defender of the Faith be understood more broadly, as simply “<a href="https://www.princeofwales.gov.uk/will-prince-wales-be-defender-faith-or-defender-faith">Defender of Faith</a>.” He stressed that he wanted to be seen as a defender of religious rights in general, not just the Anglican faith.</p>
<p>And when his accession was proclaimed on Sept. 10, 2022, King Charles III took the long-standing oath to preserve the rights of the Church of Scotland using the same wording that his predecessors have since the 16th century – <a href="https://www.cnn.com/videos/world/2022/09/10/king-charles-iii-proclamation-oath-accession-council-vpx.cnn">as Defender of the Faith</a>. </p>
<p>There is little doubt that during his reign, King Charles III will continue to build on the foundation of toleration and dialogue laid down firmly by his mother. Modern Britain is a nation of many faiths, and a contemporary monarch will need to ensure that each of them is vigorously defended and warmly celebrated.</p><img src="https://counter.theconversation.com/content/190492/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>I was a member of the Anglican-Roman Catholic Dialogue in the US for several years, as a Roman Catholic member appointed by the U.S. Conference of Catholic Bishops.</span></em></p>Queen Elizabeth II encouraged tolerance in a multifaith United Kingdom. To appreciate the significance of her efforts, it is important to understand the country’s complicated religious history.Joanne M. Pierce, Professor Emerita of Religious Studies, College of the Holy CrossLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1834862022-06-23T21:28:28Z2022-06-23T21:28:28ZSupreme Court sweeps aside New York’s limits on carrying a gun, raising Second Amendment rights to new heights<figure><img src="https://images.theconversation.com/files/470640/original/file-20220623-51375-fvsiiw.jpg?ixlib=rb-1.1.0&rect=312%2C123%2C3615%2C1937&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A U.S. Supreme Court decision released on Jun 23, 2022, loosens state restrictions on carrying concealed firearms.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/confiscated-guns-are-on-display-during-a-press-conference-news-photo/1235713352?adppopup=true">Bryan R. Smith/AFP via Getty Images</a></span></figcaption></figure><p>With its decision in <a href="https://www.oyez.org/cases/2021/20-843">New York State Rifle & Pistol v. Bruen</a> on June 23, 2022, the Supreme Court has announced that the Second Amendment is not a second-class right.</p>
<p>The core argument of the decision is that gun rights are to be treated the same as other hallowed rights like the <a href="https://constitution.congress.gov/constitution/amendment-1/">freedom of speech or freedom of religion recognized in the First Amendment</a>. </p>
<p>For most of the history of the court, Second Amendment rights have been seen as <a href="https://www.washingtonpost.com/national-security/2021/11/03/supreme-court-gun-rights-live-updates/">distinct, more dangerous and thus more open to regulation</a>. Now, the majority of justices has invoked a major change, with implications for many rights and regulations in American society.</p>
<h2>The case</h2>
<p>To get a license to carry a <a href="https://theconversation.com/supreme-court-appears-to-suggest-right-to-guns-at-home-extends-to-carrying-them-in-public-too-171263">concealed firearm in New York state,</a> a citizen had to show a “proper cause.” </p>
<p>In practice, this meant that a local licensing official had to <a href="https://www.ny.gov/services/how-obtain-firearms-license">agree that the person had a “special need</a>,” such as facing a current threat or recurring danger.</p>
<p>California, Hawaii, Maryland, Massachusetts and New Jersey also employ similar standards, known as “may issue” laws. Many other states instead have a <a href="https://concealedguns.procon.org/state-by-state-concealed-carry-permit-laws/">“shall issue”</a> regime where local officials must issue a license to carry a concealed firearm as long as the person does not have a disqualifying characteristic, including a felony conviction, mental illness or a restraining order against them.</p>
<p>In the case just decided by the Supreme Court, two applicants living in upstate New York, Robert Nash and Brandon Koch, were denied unrestricted concealed carry licenses because <a href="https://everytownlaw.org/wp-content/uploads/sites/5/2021/04/NYSRPA-v.-Beach-MTD-Decision-12.17.18.pdf">they had no special need other than personal protection</a>. They insist that law denies their constitutional rights.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/470659/original/file-20220623-51568-rmnd4k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man with a sign advocating gun rights, near two yellow 'Don't tread on me' flags and in front of a large building." src="https://images.theconversation.com/files/470659/original/file-20220623-51568-rmnd4k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/470659/original/file-20220623-51568-rmnd4k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=444&fit=crop&dpr=1 600w, https://images.theconversation.com/files/470659/original/file-20220623-51568-rmnd4k.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=444&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/470659/original/file-20220623-51568-rmnd4k.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=444&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/470659/original/file-20220623-51568-rmnd4k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=558&fit=crop&dpr=1 754w, https://images.theconversation.com/files/470659/original/file-20220623-51568-rmnd4k.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=558&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/470659/original/file-20220623-51568-rmnd4k.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=558&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Gun rights activists outside the New York State Capitol in 2018.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/GunRightsRallies-NewYork/668fdf2ccbee442088195d256de6c208/photo?Query=gun%20rights%20rally%20new%20york&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=160&currentItemNo=46">AP Photo/Hans Pennink</a></span>
</figcaption>
</figure>
<h2>The history of Second Amendment rulings</h2>
<p>For most of American history, the <a href="https://constitutioncenter.org/interactive-constitution/interpretation/amendment-ii/interps/99">court ignored the Second Amendment</a>. The <a href="https://www.oyez.org/cases/1900-1940/307us174">first major ruling</a> on its meaning did not come until the 1930s, and the court did not address whether the amendment recognized a fundamental individual right until 2008 in the landmark <a href="https://www.oyez.org/cases/2007/07-290">D.C. v. Heller</a>.</p>
<p>That ruling, written by the famously conservative Justice Antonin Scalia, recognized a right to keep a firearm in the home. How far the right extended into public spaces was not clear. </p>
<p>Scalia wrote that “like most rights, the right secured by the Second Amendment is <a href="https://www.supremecourt.gov/opinions/07pdf/07-290.pdf#page=57">not unlimited</a>.” That meant “longstanding prohibitions on the possession of firearms by felons and the mentally ill” or “prohibitions on carrying concealed weapons” were “presumptively lawful.”</p>
<h2>‘A fundamental right’</h2>
<p>The new ruling establishes that the gun right recognized by the Second Amendment is a fundamental right like any other and must be accorded the highest level of protection. Its inherently dangerous nature does not mean that the right is interpreted or limited differently.</p>
<p>Justice Clarence Thomas – perhaps the most conservative justice on the court – wrote the majority opinion. In Thomas’ view, we do not need to ask prior permission of a government official to exercise a constitutional right: “We know of no other constitutional right that an individual may exercise only after demonstrating to government officials some special need.” Thomas concludes that the Bill of Rights – including the Second Amendment – “demands our unqualified deference.”</p>
<p>This means that a local government may regulate but not eradicate the core right, including the ability to carry a concealed firearm. Any allowable regulation demands a compelling state interest, with convincing evidence of the need and effectiveness of the regulation.</p>
<h2>The constitutional case for stronger regulation</h2>
<p>The dissenters were led by Justice Stephen Breyer, who <a href="https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf#page=84">opened his dissent</a> with the number of Americans killed with firearms in 2020 – 45,222. His longstanding view is that the Second Amendment deals with a more dangerous right, and thus it is more open to being regulated.</p>
<p>In Breyer’s view, the majority’s ruling “refuses to consider the government interests that justify a challenged gun regulation.” Breyer concludes that “The primary difference between the Court’s view and mine is that I believe the Amendment allows States to take account of the serious problems posed by gun violence … I fear that the Court’s interpretation ignores these significant dangers and leaves States without the ability to address them.”</p>
<figure class="align-center ">
<img alt="An elderly Black and an elderly white man stand next to each other as onlookers applaud." src="https://images.theconversation.com/files/470630/original/file-20220623-52339-bsu0ih.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/470630/original/file-20220623-52339-bsu0ih.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/470630/original/file-20220623-52339-bsu0ih.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/470630/original/file-20220623-52339-bsu0ih.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/470630/original/file-20220623-52339-bsu0ih.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/470630/original/file-20220623-52339-bsu0ih.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/470630/original/file-20220623-52339-bsu0ih.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Seen here with GOP leader Mitch McConnell at the conservative Heritage Foundation, Supreme Court Justice Clarence Thomas wrote the majority opinion to expand gun rights.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/associate-supreme-court-justice-clarence-thomas-looks-on-as-news-photo/1236038692?adppopup=true">Drew Angerer/Getty Images</a></span>
</figcaption>
</figure>
<h2>New reading of the Constitution</h2>
<p>The majority’s view of the Second Amendment is part of a dramatic shift in the court’s understanding of the Constitution. That shift reflects the recent arrival of a <a href="https://www.supremecourt.gov/about/biographies.aspx">conservative justice, Amy Coney Barrett</a>, increasing the previous majority of five to a supermajority of six justices.</p>
<p>The new supermajority, all nominated by Republican presidents, insists that the Constitution is not <a href="https://www.law.uchicago.edu/news/living-constitution">a living document that evolves as the beliefs and values of society shift</a>. That was the longtime perspective more influential on the court since <a href="https://library.cqpress.com/cqresearcher/document.php?id=cqresrre1978062300">the rights revolution of the 1960s and 1970s</a>, but now held by only a minority of justices. </p>
<p>The conservative majority believes the Constitution should be read in the original fashion of how the text itself would have been understood by those who wrote and ratified it. <a href="https://constitutioncenter.org/interactive-constitution/white-papers/on-originalism-in-constitutional-interpretation">This is often called “originalism.”</a> </p>
<p>The ramifications of this shift are just becoming clear. Beyond this gun ruling, the effects will continue to be seen in decisions on abortion, religion, criminal justice, environmental regulation and many other issues.</p>
<p>As a <a href="https://doi.org/10.1007/978-3-030-88641-7">close observer of the Supreme Court</a>, I believe the briefest way to describe the change in the court’s understanding of rights is that the explicit protections in the Bill of Rights – such as free exercise of religion, freedom of speech, freedom of the press – will be given greater weight and deference, while the additional protections outside of the Bill of Rights, which have been recognized by the court over time – abortion, <a href="https://theconversation.com/privacy-isnt-in-the-constitution-but-its-everywhere-in-constitutional-law-183204">privacy</a>, same-sex marriage – will not be accorded the same protection and respect.</p>
<p>The originalist reading means that the enumerated rights of the Amendments, including the Second Amendment, are not up for majority rule. They are core, established rights. </p>
<p>But other public debates on issues outside of the scope of the Bill of Rights – including abortion – are matters left to the decisions of state legislatures. This is a dramatic shift in the meaning and application of the U.S. Constitution.</p>
<h2>The state of gun regulation</h2>
<p>The ruling by the new majority does not insist that states adopt the most unrestricted standards for concealed-carry that states like Maine or <a href="https://www.cnn.com/2021/09/01/us/texas-open-carry-laws/index.html">Texas</a> have. Only the states with the most restrictive gun laws, including California and New York, will be forced to change policies.</p>
<p>Justice Brett Kavanaugh wrote a separate opinion to highlight that “the Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense.” He emphasized that, “properly interpreted, the Second Amendment allows a ‘variety’ of gun regulations.”</p>
<p>The majority opinion specifically states that concealed carry of firearms in sensitive places can be regulated: “We can assume it settled” that prohibitions on concealed carry in sensitive locations, including historically allowed ones such as “legislative assemblies, polling places, and courthouses,” as well as other “new and analogous sensitive places are constitutionally permissible.” This likely includes government buildings, stadiums, churches and schools.</p>
<h2>‘Alter American law’</h2>
<p>This landmark ruling on the meaning and application of the Second Amendment changes the law in several states that would prefer to impose greater restrictions on the concealed carry of firearms. </p>
<p>More broadly, it announces a major shift in how the court will understand the nature of rights under the Constitution. </p>
<p>The liberal justices in the waning minority believe that the new approach is changing American constitutional law “<a href="https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf#page=135">without considering the potentially deadly consequences</a>.” The new majority sees the Constitution and Bill of Rights in a more uncompromising light that will alter American law in the coming years.</p><img src="https://counter.theconversation.com/content/183486/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Morgan Marietta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The gun rights decision from the conservative majority on the Supreme Court signals a fundamental change in how the court reads the Constitution.Morgan Marietta, Associate Professor of Political Science, UMass LowellLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1812912022-05-01T08:27:19Z2022-05-01T08:27:19ZSouth Africa is proposing plans to manage diseases like COVID. Why they’re flawed<figure><img src="https://images.theconversation.com/files/458576/original/file-20220419-24-oh016i.jpg?ixlib=rb-1.1.0&rect=126%2C606%2C5776%2C3123&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Countries face the reality of co-existing with COVID-19. </span> <span class="attribution"><span class="source">Charday Penn /GettyImages</span></span></figcaption></figure><p>At the onset of the COVID-19 pandemic the South African government published <a href="https://www.gov.za/sites/default/files/gcis_document/202003/43096gon313.pdf">“special regulations”</a> to contain the spread of the disease. These actions were taken under special powers granted by the <a href="https://www.gov.za/sites/default/files/gcis_document/202004/43199rg11078-gon446.pdf">Disaster Management Act</a>. </p>
<p>In April 2022, South Africa’s President Cyril Ramaphosa announced an end to the crisis management mode the country had been in for two years. Now processes are underway to embed some of the special regulations into the country’s general health regulations related to <a href="https://www.nicd.ac.za/nmc-overview/">notifiable medical conditions</a>. </p>
<p>Notifiable medical conditions are conditions, diseases or infections that pose an immediate and significant risk to public health. The diseases are categorised based on the severity of the threat they pose. Each disease is designated a reporting time and a set of conditions aimed at controlling its spread. Novel influenza viruses such as SARS-CoV-2, and diseases such as viral haemorrhagic fevers, including Ebola and malaria, are already on the list.</p>
<p>The Department of Health has published <a href="https://www.gov.za/sites/default/files/gcis_document/202203/46048gon1882.pdf">proposed regulations</a> and invited public comment to incorporate the COVID special regulations into the general health regulations.</p>
<p>We have concerns about the proposed regulations. These concerns are based on our involvement in the health care sector and regulatory issues relating to South Africa’s management of the COVID-19 pandemic. </p>
<p>Our first concern is that several proposed amendments could limit constitutional rights. Second, special regulations for a specific disease can’t be applied generally to all notifiable diseases. Finally, the proposed regulations resemble a haphazard cutting and pasting of the emergency regulations. It’s as though the drafters didn’t first read what’s already in place.</p>
<p>Below we highlight some of our concerns; our analysis is not an exhaustive detailed critique of the entire proposed regulation package. </p>
<h2>Problem areas</h2>
<p><a href="https://www.gov.za/sites/default/files/gcis_document/202203/46048gon1882.pdf#page=2">Regulation 15</a> deals with mandatory medical examination, prophylaxis, treatment, isolation and quarantine of confirmed cases, carriers and contacts. The eight sub regulations in the proposal are redundant for the most part. Current regulations already set out several conditions that must be fulfilled before someone can be <a href="http://www.samj.org.za/index.php/samj/article/view/12911">compelled by court order</a> to undergo examination, admission to a health establishment or mandatory prophylaxis, treatment, isolation or quarantine. In our view, nothing additional is needed.</p>
<p>Two of the proposed regulations could be valuable additions if phrased differently. These relate to the designation of quarantine facilities and the criteria for self-quarantine and self-isolation. <a href="https://www.gov.za/sites/default/files/gcis_document/202203/46048gon1882.pdf#page=5">Criteria</a> for self-isolation or self-quarantine include access to the internet as well as a private physician to report symptoms daily. But conditions in South Africa make it impossible for millions of people to comply with this because they don’t have access to the internet or a private physician. Regulation 15G also requires self-isolation or self-quarantine facilities to provide primary healthcare services, emergency medical services, and forensic pathology services. These requirements do take into account the fact that these services aren’t available when a person self-isolates at home.</p>
<p><a href="https://www.gov.za/sites/default/files/gcis_document/202203/46048gon1882.pdf#page=5">Proposed regulation 15H</a> deals with contact tracing. This section was copied directly from the COVID-19 regulations. Personal data collection and <a href="http://www.sajbl.org.za/index.php/sajbl/article/view/626/620">contact tracing</a> are not a trivial matter. They involve constitutional rights, privacy and bioethics concerns. Constitutional rights can only be limited under exceptional conditions. The proposed regulations cannot exist outside the requirements of the <a href="https://www.gov.za/documents/protection-personal-information-act">Protection of Personal Information (POPI) Act</a>.</p>
<p>When personal data, including DNA samples, are collected during a pandemic and kept for future research and teaching, the owners of the biological material and data should be protected against victimisation and exploitation. Protection may include:</p>
<ul>
<li><p>Anonymising the data so that it cannot be linked to a particular individual.</p></li>
<li><p>Restricting the collection and use of genetic data to cases where explicit informed consent has been given and the intended use is specified.</p></li>
<li><p>Data subjects should be able to verify the accuracy of their data on file or request the deletion of their data if they so wish. </p></li>
<li><p>Researchers should be prevented from monetising data without patient consent. </p></li>
</ul>
<p>There are other examples where COVID regulations have been directly copied over into the proposed regulations. These relate to public places and attendance of funerals and gatherings and travel regulations. These will simply create confusion when applied to all notifiable diseases.</p>
<h2>What’s missing</h2>
<p>There are opportunities to improve the existing general regulations based on lessons learned during the pandemic. But legislators should carefully consider the healthcare, legal and ethical implications, and citizens’ constitutional rights. These are protected under <a href="https://www.gov.za/documents/constitution/chapter-2-bill-rights">Section 27</a> of the country’s Constitution (the Bill of Rights). </p>
<p>Great care should be taken to ensure that wording is not obscure or ambiguous. It should not be the duty of the courts to, post facto, interpret acts and regulations. Overall, no regulation limiting any fundamental human right should be activated unless supported by clear evidence. This should be accompanied by a transparent risk and benefit analysis that shows such measures are necessary. </p>
<p>Rather than merely copying the COVID-19 regulations, the Department of Health should apply the lessons learned during the past two years to develop meaningful new ones. These should address the surveillance and control of notifiable medical conditions to prepare the country for future pandemics. In addition, the department should invest time to construct general regulations that allow broader interpretation.</p>
<p>A valuable contribution could be to clearly define how outbreaks, epidemics and pandemics would be dealt with on a town, city, district, provincial and national level. Transparent criteria should be defined for various levels of control. The criteria should be based on reasonable measures such as the number and severity of cases, hospitalisations and deaths per million population and the treatment capacity in that specific geographic area.</p><img src="https://counter.theconversation.com/content/181291/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Regulations that limit fundamental human rights should be accompanied by a transparent risk and benefit analysis.Ignatius Michael Viljoen, PhD Candidate Cell and Gene Therapy Regulation. Institute for Cellular and Molecular Medicine,, University of PretoriaMarietjie Botes, Post Doctoral Fellow, University of KwaZulu-NatalMichael Sean Pepper, Director, Institute for Cellular and Molecular Medicine & SAMRC Extramural Unit for Stem Cell Research & Therapy, University of PretoriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1718302021-11-25T14:33:00Z2021-11-25T14:33:00ZNew book on South Africa’s history puts black people at the centre, for a change<figure><img src="https://images.theconversation.com/files/433151/original/file-20211122-13-1ufvxwf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Inkatha leader Mangosuthu Buthelezi, former South African President FW de Klerk and Nelson Mandela after signing a peace pledge ahead of the first democratic elections in 1994.</span> <span class="attribution"><span class="source">Keith Schamotta/AFP via Getty Images</span></span></figcaption></figure><p>Thula Simpson’s new <a href="https://www.loot.co.za/product/thula-simpson-history-of-south-africa/cpbl-7180-g030?referrer=googlemerchant&gclid=Cj0KCQiAkNiMBhCxARIsAIDDKNUU7XlVLrUqPmgkQdKsNe1ZHc3EloPMUPMN9stKope-Ofx6kCBjnMIaAv-MEALw_wcB&gclsrc=aw.ds">book</a>, History of South Africa from 1902 to the Present, is an event-packed narrative history. It is reminiscent of the style of Eric Walker’s <a href="https://www.amazon.com/History-Southern-Africa-Walker/dp/B0028A9JIE">History of Southern Africa</a> eight decades ago – a very influential book, prescribed for many university history classes – except this time black South Africans are central to the story, not confined to its margins.</p>
<p>The author, <a href="https://www.up.ac.za/historical-heritage-studies/article/2353404/prof-thula-simpson">an associate professor</a> at the University of Pretoria, most recently published the book, <a href="https://www.loot.co.za/product/thula-simpson-umkhonto-we-sizwe/mmhj-3406-g720?referrer=googlemerchant&gclid=CjwKCAiAnO2MBhApEiwA8q0HYXLl7yeiRyOOyRove8-Y1Hz7bkQHygZnWsKo7u-6FLsArWOs6kf9UxoCytgQAvD_BwE&gclsrc=aw.ds">Umkhonto we Sizwe: The ANC’s Armed Struggle</a>, in 2016. This was also written in an event-by-event narrative style.</p>
<p>The author’s choice of 1902 as his starting point is presumably because from then on South Africa was under one political ruler – first, the British imperial government; then white settlers; and since 1994, majoritarian democratic rule. The trade-off for dense detail of twentieth century is that the reader forgoes older periods that haven’t received much attention.</p>
<p>A wealth of archaeological research has breathed life into thousand year old trade routes, and the <a href="https://www.theheritageportal.co.za/article/bokoni-mpumalanga">Bokoni</a>, a pre-colonial mixed farming society, from the 1500s and other forgotten kingdoms and chiefdoms.</p>
<p>This history covers twelve decades, from the surrender of Boer guerrillas in the <a href="https://www.sahistory.org.za/article/second-anglo-boer-war-1899-1902">Second Anglo-Boer War</a> in 1902 to the <a href="https://theconversation.com/what-lies-behind-social-unrest-in-south-africa-and-what-might-be-done-about-it-166130">July 2021 looting spree</a> in two of South Africa’s provinces. Usefully, this history provides the results of every election since 1910. As the publisher’s blurb states,</p>
<blockquote>
<p>the book follows the South African people through the battles, elections, repression, resistance, strikes, insurrections, massacres, economic crashes and health crises that have shaped the nation’s character.</p>
</blockquote>
<p>This book is new scholarship, which fills a gap with the release of new documents.</p>
<p>This history traces that as far back as the <a href="https://history.state.gov/milestones/1914-1920/paris-peace">Versailles peace conference of 1919</a>, to settle the post - World War 1 arrangements. Rival delegations to the conference came from the South African Native National Congress (today South Africa’s governing ANC) and JBM Hertzog’s <a href="https://www.sahistory.org.za/article/national-party-np">Nasionale Party</a>, to lobby for opposite causes. Both lobbied in vain the British Prime Minister Lloyd George: the one for an Afrikaner republic; the other to defend the Cape franchise for blacks.</p>
<h2>Capturing history</h2>
<p>This historical narrative covers the <a href="https://www.sahistory.org.za/article/history-bulhoek-massacre">Bulhoek massacre</a> in 1921, about a church stand to keep their meeting ground, but ignores the <a href="https://lawcat.berkeley.edu/record/40685?ln=en">1922 Bondelzwart rebellion</a> against the South African Government imposing a sixfold increase in their effective taxes. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/433132/original/file-20211122-13-5hbe17.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/433132/original/file-20211122-13-5hbe17.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=917&fit=crop&dpr=1 600w, https://images.theconversation.com/files/433132/original/file-20211122-13-5hbe17.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=917&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/433132/original/file-20211122-13-5hbe17.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=917&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/433132/original/file-20211122-13-5hbe17.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1153&fit=crop&dpr=1 754w, https://images.theconversation.com/files/433132/original/file-20211122-13-5hbe17.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1153&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/433132/original/file-20211122-13-5hbe17.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1153&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<p>It covers the crushing of the <a href="https://www.sahistory.org.za/article/rand-rebellion-1922">1922 Rand revolt</a> against hiring African miners instead of higher paid white miners, and the <a href="https://www.jstor.org/stable/40206586">Pact government’s legislative victory</a> for the defeated white mine workers. The Pact government was constituted by an Afrikaner majority, with support from English-speaking white mineworkers. This was about firing black workers in skilled jobs. It also reminds one of the statutory anti-Semitism of the 1930 <a href="https://repository.up.ac.za/bitstream/handle/2263/28071/08chapter8.pdf?sequence=9&isAllowed=y">Quota Act</a>, which dramatically blocked Jewish refugees’ emigration to South Africa, as did the <a href="https://www.gov.za/sites/default/files/gcis_document/201503/act-53-1986.pdf">Aliens Act of 1937</a>. </p>
<p>This book is a good reminder that, notwithstanding Prime Minister Jan Smuts’ “segregation has fallen on evil days” speech in 1942, (p.131), his government subsequently repealed not one segregation law. But, to the contrary, it added to segregation laws against Indians, while a parliamentary Marriage Commission proposed in 1939 a ban on interracial marriages (p.162). This was immediately implemented by the apartheid regime in 1949.</p>
<p>The decades of struggle between the apartheid government and the <a href="https://www.anc1912.org.za/">African National Congress</a>, <a href="http://pac.org.za/">Pan-Africanist Congress of Azania</a>, <a href="https://omalley.nelsonmandela.org/omalley/index.php/site/q/03lv02424/04lv02730/05lv03188/06lv03192.htm">Azanian People’s Organisation</a>, the <a href="https://www.sacp.org.za/">South African Communist Party</a>, and trade unions are chronicled, culminating in the mass struggles for freedom of the 1980s, and the fraught negotiations of 1990-93 <a href="https://www.sahistory.org.za/article/convention-democratic-south-africa-codesa">to end apartheid</a>.</p>
<p>The current struggles by the families of killed detainees to get prosecution of torturers from the Special Branch – the notorious apartheid police unit – makes topical this books’ reminder that President F W de Klerk’s last action in office was to grant amnesty from prosecution to Adrian Vlok, Magnus Malan, apartheid police and military leaders, respectively, and 3,500 policemen and others, for atrocities committed to uphold apartheid. (p.352)</p>
<p>The winning of democracy a generation ago fills seven chapters. With hindsight, we can assess the consequences that in 1997 <a href="https://theconversation.com/jacob-zuma-likes-to-be-cast-as-a-man-of-the-people-but-is-he-50665">Jacob Zuma</a> was appointed to head the ANC cadre deployment committee: (p.373) chapter 29 is titled Captive State.</p>
<p>The ANC will look back to its 2009 election peak of 70% of votes; the opposition Democratic Alliance will similarly recall its 2014 election peak of 22% of the votes, reaching 30% in Gauteng. (pp. 404, 421) </p>
<h2>Criticism</h2>
<p>Inevitably, a six hundred page history book will have a few mistakes.</p>
<p>Walvis Bay in Namibia, then South West Africa under South African rule, was not conquered by South Africa in 1914 as claimed on page 47. It was annexed to the Cape Colony in 1884, as Simpson himself writes on page 243.</p>
<p>The Special Branch was not founded “about 1935” (p.150): <a href="https://www.britannica.com/topic/United-Party">United Party</a> cabinet minister Harry Lawrence ordered it set up in 1947. Before that, Criminal Investigation Department detectives did political snooping, ever since the <a href="https://www.sahistory.org.za/article/international-socialist-league-isl">International Socialist League</a> of the Cape Colony in the 1900s.</p>
<p>In 1968, University of Cape Town (UCT) appointments did not have to be confirmed by the government (p.216). The government threatened that it would extend the apartheid colour bar to academic posts unless the UCT Council rescinded its appointment of Archie Mafeje. <a href="https://www.sahistory.org.za/people/archie-mafeje">Mafeje</a>, a black man, was an emerging scholar who became a major academic critic of the discipline of social anthropology itself.</p>
<p>There will always be more facts than there is space for. But this history should have mentioned that the <a href="https://www.sahistory.org.za/article/liberal-party-south-africa-lpsa">Liberal Party</a> by 1960, and the <a href="https://omalley.nelsonmandela.org/omalley/index.php/site/q/03lv03445/04lv03446/05lv03491.htm">Progressive Federal Party</a> by 1979, had updated their policies to accept universal franchise. Also, bar the <a href="https://www.sahistory.org.za/archive/document-77-yu-chi-chan-club-pamphlet-no-ii-conquest-power-south-africa-1963">Yu Chi Chan Club</a>, there is not even one sentence on any organisations of the <a href="https://www.sahistory.org.za/article/non-european-unity-movement-neum">Non-European Unity Movement</a> family. Their activists influenced the boycott strategy of the <a href="https://africanactivist.msu.edu/organization.php?name=South+African+Non-Racial+Olympic+Committee">South African Non-Racial Olympic Committee</a>.</p>
<h2>Bleak conclusion</h2>
<p>This history paints a bleak conclusion to its twelve decades: xenophobic “pogroms and lynching had become a routine feature of South African life” from 2008 (p.400) with poor blacks attacking other poor blacks. A 153-day strike became the longest ever in South African mining history (p.415) in 2012, and we witnessed the Marikana massacre in 2012.</p>
<p>Chapter 30 is titled False Dawn in its summary of <a href="https://theconversation.com/precarious-power-tilts-towards-ramaphosa-in-battle-inside-south-africas-governing-party-158251">President Cyril Ramaphosa’s</a> difficult first years in power. COVID-19 and the lockdowns culminated in the KwaZulu-Natal and Gauteng looting spree of July 2021, mixing opportunism and Zuma diehards <a href="https://theconversation.com/violence-in-south-africa-an-uprising-of-elites-not-of-the-people-164968">incensed by his incarceration for contempt of court</a>. </p>
<p>But it’s not all bad. South Africa spends 45% of its annual budget on the poorest 40% of its citizens. (p.393). Its constitutional democracy, and enforceable <a href="https://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-02.pdf">Bill of Rights</a>, remain rare beacons on the African continent. Corruption triggered a huge backlash, including Ramaphosa’s appointment of new prosecutors.</p>
<p>If this history book runs to a second edition in a decade’s time (as Eric Walker’s did) we will await with interest any revision of its conclusions, which are that South Africa is on a downward path.</p>
<p>This is a thorough, fact-packed history that deserves to be in every school library and on every home bookshelf.</p>
<p><em>History of South Africa from 1902 to the Present is published by <a href="https://www.loot.co.za/product/thula-simpson-history-of-south-africa/cpbl-7180-g030?referrer=googlemerchant&gclid=Cj0KCQiAkNiMBhCxARIsAIDDKNUU7XlVLrUqPmgkQdKsNe1ZHc3EloPMUPMN9stKope-Ofx6kCBjnMIaAv-MEALw_wcB&gclsrc=aw.ds">Penguin Random House</a></em>.</p><img src="https://counter.theconversation.com/content/171830/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Keith Gottschalk is a member of the ANC, but writes this review in his professional capacity as a political scientist. </span></em></p>This history covers twelve decades, from the surrender of Boer guerrillas in the Second Anglo-Boer War in 1902 to the July 2021 looting spree and violence.Keith Gottschalk, Political Scientist, University of the Western CapeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1696042021-11-04T12:25:43Z2021-11-04T12:25:43ZWhy are medieval weapons laws at the center of a US Supreme Court case?<figure><img src="https://images.theconversation.com/files/429798/original/file-20211102-17-1arnn9t.jpg?ixlib=rb-1.1.0&rect=5%2C5%2C3988%2C2652&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A gun rights advocate walks through the rotunda of the Kentucky Capitol. Some lawyers argue that the 1689 English Bill of Rights created the legal basis for public carry of weapons in the U.S.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/marcus-olmstead-stands-in-the-rotunda-of-the-state-capitol-news-photo/1197733926?adppopup=true">Bryan Woolston/Getty Images</a></span></figcaption></figure><p>In the opening scene of “<a href="https://www.youtube.com/watch?v=mgygUwPJvYk">The Last Duel</a>,” the new film set in 14th-century France, a herald announces the rules for conduct at a tournament to the death. He declares that no members of the public – whatever their social background – are allowed to bring weapons to the event.</p>
<p>This scene might seem far removed from 21st-century America. But <a href="https://firearmslaw.duke.edu/2021/09/observations-regarding-the-interpretation-and-legacy-of-the-statute-of-northampton-in-anglo-american-legal-history/">medieval weapons laws</a> – including a 1328 English statute prohibiting the public carry of edged weapons without royal permission – are at the center of dueling legal opinions in a case now before the U.S. Supreme Court, <a href="https://www.oyez.org/cases/2021/20-843">New York State Rifle and Pistol Association v. Bruen</a>.</p>
<p>The plaintiffs are challenging New York’s “<a href="https://www.ny1.com/nyc/all-boroughs/politics/2021/04/28/supreme-court-will-review-new-york-s-concealed-carry-gun-law">proper cause</a>” gun law, which tightly restricts public carry of firearms. If they win, similar laws in several other states will be called into question. That means that concealed carry licensing laws <a href="https://bostonreview.net/law-justice/jonathan-m-metzl-supreme-court-new-york-state-rifle-pistol-association-v-bruen-corlett">could be broadly liberalized</a> for millions of Americans currently living in those more restrictive jurisdictions.</p>
<p>Few people realize how big a role history has played in the battle over gun rights – the topic of a 2019 collection of essays, “<a href="https://scholarlypress.si.edu/store/all/right-to-bear-arms-contested-role-history-contemp/">A Right to Bear Arms? The Contested Role of History in Contemporary Debates on the Second Amendment</a>,” that I co-edited with Smithsonian Museum of American History curators Barton Hacker and Margaret Vining. </p>
<p>The book explores how courts in the United States have turned to history for instruction in how guns should be treated – decrees, laws and interpretations of the past that are at the forefront of the case before the Supreme Court today.</p>
<h2>Scalia points to the English Bill of Rights</h2>
<p>The United States legal system grew out of the English legal tradition. This connection – which is often <a href="https://texaslawreview.org/the-foreign-founding-rights-fixity-and-the-original-constitution">referenced by originalists</a> – is crucial to making sense of the arguments around gun rights in America today.</p>
<p>Originalism <a href="https://slate.com/news-and-politics/2021/11/supreme-court-originalism-new-york-rifle.html">is a legal philosophy</a> that attempts to interpret legal texts, including the Constitution, based on what lawyers think is their original meaning.</p>
<p>An important victory for gun rights advocates took place in <a href="https://www.law.cornell.edu/supct/html/07-290.ZS.html">District of Columbia v. Heller</a>. In that 2008 decision, the Supreme Court for the first time ruled that the Second Amendment protects an individual right to possess a firearm for personal self-defense in the home.</p>
<figure class="align-center ">
<img alt="Majestic white courthouse with columns." src="https://images.theconversation.com/files/429976/original/file-20211103-17-1pvttj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/429976/original/file-20211103-17-1pvttj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/429976/original/file-20211103-17-1pvttj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/429976/original/file-20211103-17-1pvttj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/429976/original/file-20211103-17-1pvttj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/429976/original/file-20211103-17-1pvttj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/429976/original/file-20211103-17-1pvttj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">New York State Rifle and Pistol Association v. Bruen is the most significant gun rights case before the Supreme Court since 2008.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/portico-of-the-supreme-court-royalty-free-image/523683894?adppopup=true">Ron Watts/The Image Bank via Getty Images</a></span>
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<p>Justice Antonin Scalia, author of the 5-4 majority <a href="https://supreme.justia.com/cases/federal/us/554/570/#tab-opinion-1962738">Heller opinion</a>, claimed that there was a long tradition of the English state’s granting freedom to possess weapons dating back to the 1689 English Bill of Rights, which <a href="https://www.bl.uk/collection-items/the-bill-of-rights">includes a clause</a> that reads “the subjects which are Protestant may have arms for their defence suitable to their conditions and as allowed by law.”</p>
<p>Scalia’s argument relied heavily on the work of historian <a href="http://www.joyceleemalcolm.com/about/">Joyce Malcolm</a>, the author of “<a href="https://www.hup.harvard.edu/catalog.php?isbn=9780674893078">To Keep and Bear Arms: The Origins of an Anglo-American Right</a>” and a Second Amendment scholar at the Antonin Scalia Law School at George Mason University. Malcolm and lawyers who support the expansion of gun rights argue that this clause created the legal basis for having weapons for personal self-defense in Colonial America.</p>
<p>Having prevailed in Heller, gun rights activists are seeking the liberalization of restrictions on public carrying of guns outside the home. In the New York case, <a href="https://www.supremecourt.gov/DocketPDF/20/20-843/183837/20210713165751150_2021.07.13%20FINAL%20NYSRPA%20v.%20Corlett%20Opening%20Brief.pdf">some lawyers</a> and <a href="https://www.supremecourt.gov/DocketPDF/20/20-843/184351/20210720115439756_20-843%20Amici%20Curiae%20Brief.pdf">other parties</a> are now arguing that medieval statutes restricted only public carry that “terrified” the public, and that such statutes were never actually enforced to prevent “normal” public carry.</p>
<h2>Historians object</h2>
<p>However, most scholars of English and American history vigorously <a href="https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780195147865.001.0001/acprof-9780195147865">dispute the accuracy of this claim</a>. In fact, since the Heller decision, the history of firearms regulation in England and the U.S. has been the focus of what Fordham University law professor Saul Cornell <a href="https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780195147865.001.0001/acprof-9780195147865">has called an</a> “explosion of empirical research.” </p>
<p>Many of these findings appear in <a href="https://www.supremecourt.gov/DocketPDF/20/20-843/193309/20210921191001002_20-843%20bsacProfessorsOfHistoryAndLaw.pdf">an amicus brief</a> presented to the Court in New York State Rifle and Pistol Association v. Bruen.</p>
<p>Signed by 17 professors of law, English history and American history – including me – the brief <a href="https://www.law.com/nationallawjournal/2021/11/02/as-scotus-takes-on-gun-laws-neither-british-nor-early-american-history-support-the-nearly-unfettered-right-to-carry-arms/">demonstrates through a review of historical evidence</a> that “neither English nor American history supports a broad Second Amendment right to carry firearms or other dangerous weapons in public based on a generic interest in self-defense.”</p>
<p>It highlights 700 years of trans-Atlantic weapons regulations, from the <a href="https://slate.com/news-and-politics/2015/10/wrenn-v-d-c-gun-case-turns-on-english-laws-of-1328-and-1689.html">English tradition of restricting public carry</a> through <a href="https://www.brennancenter.org/our-work/research-reports/police-power-and-authority-regulate-firearms-early-america">the American tradition of doing the same</a>. </p>
<p>The brief makes clear that limitations on the public carry of dangerous weapons, including firearms, <a href="https://www.nytimes.com/2021/11/02/us/politics/conservatives-new-york-gun-law.html">are a centuries-old legal and cultural norm</a>.</p>
<p>Early royal proclamations dating as far back as the 13th century regularly prohibited going armed in public without special permission. In 1328, <a href="https://press-pubs.uchicago.edu/founders/documents/amendIIs1.html">the Statute of Northampton</a> banned the public carry of swords and daggers, open or concealed – this was before the invention of firearms – without express permission from the authorities.</p>
<p>As legal scholar and historian <a href="https://harvardpolitics.com/interview-with-geoffrey-robertson-qc/">Geoffrey Robertson</a>, an expert on the English Bill of Rights, put it: “There was never any absolute ‘right’ to carry guns. As the Bill of Rights (1689) made clear, this was only ‘as allowed by law.’”</p>
<figure class="align-center ">
<img alt="Two pistols." src="https://images.theconversation.com/files/429803/original/file-20211102-54198-z8d8cv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/429803/original/file-20211102-54198-z8d8cv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=431&fit=crop&dpr=1 600w, https://images.theconversation.com/files/429803/original/file-20211102-54198-z8d8cv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=431&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/429803/original/file-20211102-54198-z8d8cv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=431&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/429803/original/file-20211102-54198-z8d8cv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=542&fit=crop&dpr=1 754w, https://images.theconversation.com/files/429803/original/file-20211102-54198-z8d8cv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=542&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/429803/original/file-20211102-54198-z8d8cv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=542&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A pair of flintlock pistols that were common in 17th-century England.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/pair-of-flintlock-pistols-england-1640-60-artist-unknown-news-photo/1349693063?adppopup=true">Heritage Art/Heritage Images via Getty Images</a></span>
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</figure>
<h2>An American tradition of limiting public carry</h2>
<p>The English tradition of broad public carry restrictions continued across the Atlantic into the Colonies.</p>
<p><a href="https://books.google.com/books/about/The_Skulking_Way_of_War.html?id=f-G0tLVZ-dwC&source=kp_book_description">During periods of heightened risk of attack</a>, some Colonies required certain individuals to carry guns to church or when working in fields away from fortified or populated areas. However, this obligation was not understood as establishing a right to carry firearms in public.</p>
<p>After the American Revolution, states continued to adopt regulations echoing the Statute of Northampton. <a href="https://scholarship.law.duke.edu/lcp/vol80/iss2/3/">Recent scholarship</a> has uncovered that early-to-mid-19th-century firearms regulations varied considerably by jurisdiction and geography, but 19 states had restrictions for public carry on the books.</p>
<p>After the Civil War, <a href="https://firearmslaw.duke.edu/2021/10/new-research-from-the-uc-davis-symposium-the-theoretical-lethality-index-reconstruction-regulation-and-enforcement/">as the lethality of firearms increased exponentially through technological advances</a>, municipalities and states <a href="https://www.washingtonpost.com/outlook/2019/09/12/when-texas-was-national-leader-gun-control/">like Texas</a> imposed <a href="https://www.brennancenter.org/our-work/research-reports/police-power-and-authority-regulate-firearms-early-america">even broader public carry prohibitions</a>. </p>
<p>By 1900, there was a legal consensus that <a href="https://www.supremecourt.gov/DocketPDF/20/20-843/184400/20210723164521988_20210723-164257-95754288-00000402.pdf">states and localities generally had the authority to limit public carry</a>. While the American approach to public carry restriction was fluid – varying across time and jurisdiction based on social and political changes – there is a consistent history and tradition of many American Colonies, states, territories and municipalities imposing broad prohibitions on carrying dangerous weapons in public, particularly without a specific need for self-defense.</p>
<h2>An invented tradition?</h2>
<p>So how did a 1689 English Bill of Rights that never gave any absolute right to carry guns turn into a key justification <a href="https://bostonreview.net/law-justice/jonathan-m-metzl-supreme-court-new-york-state-rifle-pistol-association-v-bruen-corlett">for that very right</a> in the U.S.?</p>
<p>Patrick Charles, the author of the 2019 book “<a href="https://www.illinoislawreview.org/online/the-invention-of-the-right-to-peaceable-carry-in-modern-second-amendment-scholarship/">Armed in America: A History of Gun Rights from Colonial Militias to Concealed Carry</a>,” argues that pro-gun advocates have selectively interpreted the historical record to justify a personal right to possess and carry weapons in public. </p>
<p>Essentially, they invented a tradition. </p>
<p>[<em>Over 115,000 readers rely on The Conversation’s newsletter to understand the world.</em> <a href="https://theconversation.com/us/newsletters/the-daily-newsletter-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=100Ksignup">Sign up today</a>.]</p>
<p>“Invented traditions,” a concept highlighted in the 1983 book “<a href="https://www.cambridge.org/core/books/invention-of-tradition/B9973971357795DC86BE856F321C34B3">The Invention of Tradition</a>,” which was edited by historians Eric Hobsbawm and Terence Ranger, are cultural practices that are thought to have emerged from long ago but actually are grounded in a much more recent past. A classic example is <a href="https://www.atlantamagazine.com/news-culture-articles/the-troubled-triangle-of-scottish-heritage-southern-racial-politics-and-stone-mountain/">the Scottish tartan kilt</a>, once believed to derive from the ancient garb of the Scottish Highlanders but actually invented in the 18th century by an Englishman. </p>
<p>The “<a href="https://bostonreview.net/law-justice/jonathan-m-metzl-supreme-court-new-york-state-rifle-pistol-association-v-bruen-corlett">individual right</a>” to carry firearms in public <a href="https://www.washingtonpost.com/outlook/2019/09/09/why-accurate-history-must-guide-coming-debate-about-guns-second-amendment/">seems to be another</a>.</p><img src="https://counter.theconversation.com/content/169604/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jennifer Tucker is a signatory to the Historians Brief for the respondent in New York State Rifle and Pistol Association v. Bruen.</span></em></p>Many gun rights advocates claim that the right to carry guns is a universal right that has spanned centuries and nations. History tells a different story.Jennifer Tucker, Associate Professor of History and Science in Society, Wesleyan UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1692352021-11-01T18:34:54Z2021-11-01T18:34:54ZGun rights at the Supreme Court: Justices will consider if the fundamental right to keep a gun at home applies to carrying weapons in public<figure><img src="https://images.theconversation.com/files/428616/original/file-20211026-25-f6ludh.jpeg?ixlib=rb-1.1.0&rect=0%2C0%2C4601%2C3062&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Dozens of people attended an open carry rally led by Joey Gibson, leader of the Patriot Prayer group, on May 20, 2018, in Seattle. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/dozens-attend-an-open-carry-rally-led-by-joey-gibson-leader-news-photo/960672862?adppopup=true">Karen Ducey/Getty Images</a></span></figcaption></figure><p>The <a href="https://www.thetrace.org/2021/05/supreme-court-gun-rights-concealed-carry-new-york-corlett/">Supreme Court is set to hear arguments Nov. 3</a>, 2021, on a clear question: Does the constitutional right to possess a gun extend outside the home? The answer may alter gun regulations in many states. </p>
<p>The crux of the <a href="https://theconversation.com/first-major-second-amendment-case-before-the-supreme-court-in-over-a-decade-could-topple-gun-restrictions-166703">issue before the court</a> is captured by a debate that Thomas Jefferson had with himself at the time of the founding.</p>
<p>When Jefferson was drafting a proposed constitution for his home state of Virginia in June 1776, he <a href="https://www.monticello.org/site/research-and-collections/no-freeman-shall-be-debarred-use-arms#footnote3_h70lbu1">suggested a clause</a> that read “No freeman shall ever be debarred the use of arms.” </p>
<p>In the second draft, he added in brackets, “[within his own lands or tenements].”</p>
<p>Jefferson’s debate with himself captures the question posed to the court: Is the purpose of the right to “keep and bear arms” the protection of a citizen’s “own lands,” or is it self-protection in general? Does the Second Amendment to the U.S. Constitution recognize a right to keep and bear arms in the home, or a right to “keep” firearms in the home and also “bear” them outside of the home for protection in society? </p>
<p>The plaintiffs in the upcoming case <a href="https://www.scotusblog.com/case-files/cases/new-york-state-rifle-pistol-association-inc-v-bruen/">New York Rifle & Pistol Association v. Bruen</a> want the court to strike down the state’s restrictions and allow citizens who meet basic requirements, such as having no criminal convictions, to carry concealed weapons.</p>
<figure class="align-center ">
<img alt="A man with a tattoo that reads 'We the People' carrying a gun in a leather holster" src="https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&rect=22%2C9%2C3035%2C1894&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=378&fit=crop&dpr=1 600w, https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=378&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=378&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=475&fit=crop&dpr=1 754w, https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=475&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=475&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Will an upcoming Supreme Court ruling loosen gun laws across the country?</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Texas-Handguns/a65f863ca87e4b59b68b98d8db568bc1/photo?Query=guns%20open%20carry&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=280&currentItemNo=5">AP Photo/Eric Gay</a></span>
</figcaption>
</figure>
<h2>Gun in the house</h2>
<p>There are surprisingly few <a href="https://theconversation.com/first-major-second-amendment-case-before-the-supreme-court-in-over-a-decade-could-topple-gun-restrictions-166703">Supreme Court rulings</a> on the meaning of the Second Amendment. </p>
<p>The question of whether the amendment recognizes a fundamental right – on par with free speech or free exercise of religion – was not decided until 2008 in the landmark ruling in <a href="https://www.supremecourt.gov/opinions/07pdf/07-290.pdf">District of Columbia v. Heller</a>. For the first time, the court recognized a clear individual right to bear arms for the purpose of self-defense. This <a href="http://content.time.com/time/specials/packages/article/0,28804,2036448_2036452_2036455,00.html">deeply disputed 5-4 ruling</a> was expanded <a href="https://www.supremecourt.gov/opinions/09pdf/08-1521.pdf">two years later to cover state laws</a>.</p>
<p>The Heller ruling stated that the Second Amendment’s right is like the others in the <a href="https://www.archives.gov/founding-docs/bill-of-rights-transcript">Bill of Rights</a>, which cannot be violated without the most compelling reasons. The amendment, the ruling says, “surely <a href="https://www.supremecourt.gov/opinions/07pdf/07-290.pdf#page=66">elevates above all other interests</a> the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” The Washington, D.C., law intended to reduce crime cannot ban firearms in “<a href="https://www.supremecourt.gov/opinions/07pdf/07-290.pdf#page=59">the home</a>, where the need for defense of self, family, and property is most acute.”</p>
<p>That ruling – written by Justice Antonin Scalia, who died in 2016 and was <a href="https://www.npr.org/2017/04/07/522902281/senate-confirms-gorsuch-to-supreme-court">replaced by Justice Neil Gorsuch</a> – also recognized that “like most rights, the right secured by the Second Amendment is <a href="https://www.supremecourt.gov/opinions/07pdf/07-290.pdf#page=57">not unlimited</a>.” Scalia cited regulations like “longstanding prohibitions on the possession of firearms by felons and the mentally ill” or “prohibitions on carrying concealed weapons” as “presumptively lawful.”</p>
<p>The principal dissent was written by Justice Stephen Breyer, the only dissenter in Heller still serving on the court. He emphasized the balance between core rights and the needs for public safety. </p>
<p>“If a resident has a <a href="https://www.supremecourt.gov/opinions/07pdf/07-290.pdf#page=146">handgun in the home</a> that he can use for self-defense,” wrote Breyer, “then he has a handgun in the home that he can use to commit suicide or engage in acts of domestic violence.”</p>
<h2>Concealed carry laws</h2>
<p>State governments follow very different procedures for determining who will be allowed to carry a concealed firearm outside of the home. </p>
<p>“<a href="https://worldpopulationreview.com/state-rankings/open-carry-states">Open carry</a>,” or just having a handgun in plain sight on a belt holster or carrying a long gun (rifle or shotgun), is actually legal in many places. The general idea is that carrying openly would be done only by an honest actor, so less regulation is needed. “Concealed carry,” having a hidden weapon in a pocket or under a jacket, is far more restricted. </p>
<p>At one end of the continuum are near-bans on what are called “concealed carry licenses,” while at the other end are states in which no license is needed. These laws are referred to as “<a href="https://www.cnn.com/2021/09/01/us/texas-open-carry-laws/index.html">constitutional carry</a>,” meaning the U.S. Constitution itself is a citizen’s <a href="https://concealedguns.procon.org/state-by-state-concealed-carry-permit-laws/">license to carry</a> a firearm. </p>
<p>In between these two positions are rules known as “shall issue,” whereby the government issues a license if the applicant meets the requirements such as having no felony convictions, or “may issue,” which gives the government discretion to deny a license based on perceptions of fitness.</p>
<p>New York state has “may issue” laws with <a href="https://codes.findlaw.com/ny/penal-law/pen-sect-400-00.html">stringent requirements</a>, which in practice allow almost no licenses to be issued. Applicants must demonstrate a “<a href="https://sheriff.ongov.net/wp-content/uploads/2016/06/propercauseforconcealedcarry.pdf">proper cause</a>” – such as being in imminent danger from a known source – which effectively eliminates ordinary applicants. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A head-and-shoulders photo of the late Supreme Court Justice Antonin Scalia." src="https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The 2008 Heller ruling, written by Justice Antonin Scalia, pictured here, stated that the Second Amendment is a right like the others in the Bill of Rights.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/supreme-court-associate-justice-antonin-scalia-testifies-news-photo/100024252?adppopup=true">Chip Somodevilla/Getty Images</a></span>
</figcaption>
</figure>
<h2>Regulation or eradication</h2>
<p>The strongest argument in the <a href="https://www.supremecourt.gov/DocketPDF/20/20-843/164031/20201217110211298_2020-12-17%20NRA-Corlett%20Cert%20Petition%20FINAL.pdf">gun owners’ brief</a> to the Supreme Court relates to New York’s insistence that citizens show an exceptional or extraordinary need to exercise a right that the court has recognized as fundamental.</p>
<p>No other fundamental right, such as freedom of speech or religion, is limited to people who can demonstrate special circumstances. Instead, fundamental rights are understood to be held by ordinary people in ordinary circumstances.</p>
<p>The strongest argument in the <a href="https://www.supremecourt.gov/DocketPDF/20/20-843/169604/20210222170827872_20-843_Brief%20in%20Opposition.pdf">opposing brief</a> from the New York State Police is federalism – the longstanding conservative argument that state lawmakers hold wide latitude to determine their own regulations to serve as “<a href="https://www.supremecourt.gov/DocketPDF/20/20-843/169604/20210222170827872_20-843_Brief%20in%20Opposition.pdf#page=33">laboratories of experimentation</a>,” as Justice Louis Brandeis <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep285/usrep285262/usrep285262.pdf#page=50">phrased it</a> in 1932. The federalist principle suggests that the court should defer to the judgment of state legislatures representing the needs of local citizens.</p>
<p>As a <a href="https://doi.org/10.1007/978-3-030-53851-4">close observer of the Supreme Court</a>, I can imagine an outcome to the case in which the justices rule that, under the Second Amendment, a state can limit but not eliminate the core purposes of the protected right. </p>
<p>The Heller decision identifies at least one purpose as self-defense. The question is whether a specific concealed carry law creates a burden so strong that it becomes equivalent to eradication of the right to self-protection, or whether it imposes a legitimate public safety regulation that still maintains the core right for citizens who assert it.</p>
<h2>Individual rights vs. fellow citizens</h2>
<p>The most permissive laws that allow unrestricted concealed carry are almost certainly not mandated by the Constitution.</p>
<p>“Shall issue” laws, which allow states to screen applicants for flaws but compel local governments to provide a concealed carry license to qualified citizens, are likely to be seen even by the conservative justices as legitimate regulations that do not create unconstitutional burdens. </p>
<p>However, the current court might be likely to see a “may issue” law like New York’s, which allows the government to deny a license to nearly every applicant, as creating a burden that blocks the core of the right to self-protection where ordinary citizens are exposed to greater threats – outside the home.</p>
<p>The dissenters will likely focus on Scalia’s invocation of the home as the height of the defensive right, allowing for restrictions outside one’s “own lands,” where individual rights are balanced against the interests of fellow citizens.</p>
<p>[<em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=youresmart">You can read us daily by subscribing to our newsletter</a>.]</p><img src="https://counter.theconversation.com/content/169235/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Morgan Marietta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Supreme Court ruled in 2008 that you have a constitutional right to have a gun in your home. Now, the justices will consider how far outside of the home that right extends.Morgan Marietta, Associate Professor of Political Science, UMass LowellLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1641462021-07-08T22:24:59Z2021-07-08T22:24:59ZTrump can’t beat Facebook, Twitter and YouTube in court – but the fight might be worth more than a win<figure><img src="https://images.theconversation.com/files/410457/original/file-20210708-15-xqq91c.jpeg?ixlib=rb-1.1.0&rect=35%2C7%2C4753%2C3181&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Donald Trump at a press conference to announce a class action lawsuit against Facebook, Twitter, Google and their CEOs. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-u-s-president-donald-trump-speaks-during-a-press-news-photo/1327493802?adppopup=true">Michael M. Santiago/Getty Images</a></span></figcaption></figure><p>From <a href="https://time.com/4596770/donald-trump-reality-tv/">condo salesman to reality TV host to leader of the free world, Donald Trump</a> has occupied several lifetimes’ worth of identities over a remarkable career of reinventions. Even so, the billionaire mogul’s latest metamorphosis – <a href="https://www.reuters.com/world/us/trump-says-he-is-suing-facebook-twitter-google-claiming-bias-2021-07-07/">into a consumer-rights plaintiff seeking to regulate big business</a> – is a peculiar one.</p>
<p><a href="https://apnews.com/article/lawsuits-business-government-and-politics-c7e26858dcb553f92d98706d12ad510c">With a volley of lawsuits</a> against the operators of <a href="https://storage.courtlistener.com/recap/gov.uscourts.flsd.595800/gov.uscourts.flsd.595800.1.0_1.pdf">Facebook</a>, <a href="https://storage.courtlistener.com/recap/gov.uscourts.flsd.595801/gov.uscourts.flsd.595801.1.0.pdf">Twitter</a> and <a href="https://storage.courtlistener.com/recap/gov.uscourts.flsd.595803/gov.uscourts.flsd.595803.1.0.pdf">YouTube</a>, former President Trump is asking the courts to do what <a href="https://www.wsj.com/articles/as-a-businessman-trump-mixed-pragmatism-and-protest-in-dealing-with-regulators-1481198402">tycoon Trump once would have denounced</a>: tell some of America’s most powerful corporations that they have no choice who they do business with. </p>
<p><a href="https://www.jou.ufl.edu/staff/frank-lomonte/">As a First Amendment and media law scholar</a>, I believe the former president knows he can’t win in court. Here’s why – and why even his most ardent supporters don’t really want him to. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/410458/original/file-20210708-21-1yaw0un.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Screenshot of the Voice of America website headline, " src="https://images.theconversation.com/files/410458/original/file-20210708-21-1yaw0un.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/410458/original/file-20210708-21-1yaw0un.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=277&fit=crop&dpr=1 600w, https://images.theconversation.com/files/410458/original/file-20210708-21-1yaw0un.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=277&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/410458/original/file-20210708-21-1yaw0un.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=277&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/410458/original/file-20210708-21-1yaw0un.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=348&fit=crop&dpr=1 754w, https://images.theconversation.com/files/410458/original/file-20210708-21-1yaw0un.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=348&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/410458/original/file-20210708-21-1yaw0un.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=348&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">When Twitter banned Trump, it made headlines.</span>
<span class="attribution"><a class="source" href="https://www.voanews.com/usa/twitter-bans-trump-others-citing-risk-violent-incitement">Screenshot, Voice of America website</a></span>
</figcaption>
</figure>
<h2>Content moderation rules</h2>
<p>After the <a href="https://www.nytimes.com/2021/06/30/us/jan-6-capitol-attack-takeaways.html">Jan. 6 attack on the U.S. Capitol</a> by rioters bent on preventing Congress from certifying President Biden’s electoral win, all of the major social platforms – Facebook, Twitter and YouTube – <a href="https://www.axios.com/platforms-social-media-ban-restrict-trump-d9e44f3c-8366-4ba9-a8a1-7f3114f920f1.html">pulled the plug on Trump’s accounts</a>. The companies cited internal rules about misuse of their platforms to spread misinformation and incite violence.</p>
<p>Trump’s lawsuit barrage seeks not just to overturn his own bans but to invalidate a 1996 federal statute, <a href="https://www.eff.org/issues/cda230">Section 230 of the Communications Decency Act</a>, that entitles website operators to choose who and what appears on their pages without fear of liability. His attorneys are arguing – creatively, but I believe without much legal foundation – that the Communications Decency Act is unconstitutional in that Congress has given platforms too much speech-policing power.</p>
<p>Section 230 has been called the law that “<a href="https://www.propublica.org/article/nsu-section-230">created the internet</a>,” as it enables anyone who operates or uses a website – not, as Trump claims, only social media behemoths – to disavow responsibility for what outsiders come onto the site and say. </p>
<p>The law does enable YouTube to deactivate videos, or entire accounts, without assuming “ownership” of anything libelous that remains viewable. But it also allows the proprietor of a small-town news site to entertain reader comments without being considered the “publisher” of – and thus liable for – every scurrilous statement that ends up in the comments section.</p>
<p>Social networks have enforced their “content moderation” rules spottily and without much transparency. That’s a bad business practice, and it’s arguably unfair. But the Constitution doesn’t offer a remedy for all of life’s adversities. It certainly doesn’t offer one for Donald Trump here.</p>
<h2>Social media isn’t government</h2>
<p>Court after court has rejected the argument that because social networks are widely considered – <a href="https://scholar.google.com/scholar_case?case=285661631352488303&q=packingham+v+north+carolina&hl=en&as_sdt=40006">in the Supreme Court’s words</a> – “the modern public square,” speakers are entitled to demand access to their platforms just as they are entitled to use a physical public square. That’s not how the First Amendment works. </p>
<p>The protections of the First Amendment are triggered when a public agency exercises governmental power to restrict people’s speech – <a href="https://crsreports.congress.gov/product/pdf/R/R45650/1">what is known as “state action.”</a> On rare occasions, private organizations can be considered “governmental” – for instance, when a private hospital or university is given police power to make arrests on its premises. </p>
<p>But operating a video-sharing platform is not a “governmental” function – and judges have said so, <a href="https://legaltalknetwork.com/podcasts/make-no-law/2019/08/deplatformed-social-media-censorship-and-the-first-amendment/">unanimously</a>.</p>
<p>Conservatives, including Trump, cannot possibly want private businesses to be governed by the same constitutional standards that apply to cities and counties. If courts started applying the Bill of Rights to Walmart or McDonald’s just because they are large and powerful entities that control a lot of property, those establishments would be forced to welcome even the most disagreeable speakers – let’s say, a diner wearing a “F*** Trump” T-shirt – no matter how many offended customers complain. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/410461/original/file-20210708-27-2i3i8.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Twitter CEO Jack Dorsey, a man with bright blue eyes, brown hair and a wiry hipster beard, speaking on a monitor." src="https://images.theconversation.com/files/410461/original/file-20210708-27-2i3i8.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/410461/original/file-20210708-27-2i3i8.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/410461/original/file-20210708-27-2i3i8.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/410461/original/file-20210708-27-2i3i8.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/410461/original/file-20210708-27-2i3i8.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/410461/original/file-20210708-27-2i3i8.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/410461/original/file-20210708-27-2i3i8.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Twitter CEO Jack Dorsey and other Big Tech leaders testified virtually at a congressional hearing in October 2020 regarding Section 230 of the Communications Decency Act, which guarantees that tech companies cannot be sued for content on their platforms.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/of-twitter-jack-dorsey-appears-on-a-monitor-as-he-testifies-news-photo/1229328534?adppopup=true">Michael Reynolds-Pool/Getty Images</a></span>
</figcaption>
</figure>
<h2>Upending conservative gospel</h2>
<p>For decades, conservatives have <a href="https://www.npr.org/templates/story/story.php?storyId=112711410">fought</a> – quite hard and quite successfully <a href="https://reason.com/video/2019/09/05/corporations-and-the-first-amendment-free-speech-rules-episode-6/">in court</a> – to establish that corporations have First Amendment rights equivalent to those of living, breathing people. That includes the corporations operating social media channels. </p>
<p>In a recent <a href="https://www.taylorfrancis.com/chapters/edit/10.4324/9781003008828-9/legal-landscape-frank-lomonte">essay about democracy in the social media age</a>, I explain how the Communications Decency Act has evolved into the near-impenetrable liability shield that it is today. </p>
<p>In the essay, I describe how the proprietor of a hotel or tavern isn’t liable for harm caused by customers visiting the establishment – unless the customer has a known history of dangerousness that the proprietor chooses to ignore. That might offer a split-the-difference path for addressing the worst trolling behavior on social media by repeat bad actors – but, to be clear, it’s not the law today. </p>
<p>Today, the law unmistakably entitles the Twitters of the world to do just about anything with their customers’ posts: take them down, leave them up, add warnings or modifiers. If users are aggrieved by the way they’re treated, they can do exactly what they’d do in the offline world: Take their business somewhere else. </p>
<p>[<em>Understand key political developments, each week.</em> <a href="https://theconversation.com/us/newsletters/politics-weekly-74/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=politics-understand">Subscribe to The Conversation’s politics newsletter</a>.]</p>
<h2>Old news</h2>
<p>The Supreme Court already decisively dealt with this issue a half-century ago, when newspapers and television stations held power over political discourse comparable to that of Facebook and Twitter today. In the case, Miami Herald Publishing Co. v. Tornillo, <a href="https://www.oyez.org/cases/1973/73-797">the justices rejected</a> a state legislative candidate’s insistence that he was entitled to space in the local newspaper to respond to criticism in two editorial columns. </p>
<p>While the justices acknowledged that a big-city newspaper might have a near-monopoly over information about local elections – sound familiar? – they agreed that the First Amendment would not tolerate commandeering the presses of a private publisher in the interest of government-enforced “fairness.”</p>
<p>A federal judge in Florida, relying on the Tornillo case, just <a href="https://www.reuters.com/world/us/federal-judge-rules-florida-social-media-law-likely-violates-free-speech-2021-07-01/">ordered</a> the state not to enforce a newly enacted “anti-deplatforming” law enabling any Florida political candidate whose social media posts are hidden, modified or deactivated to sue the platform. The judge concluded that the law violates the First Amendment rights of the platforms by (for example) compelling platforms to let candidates post anything they want, without moderation. “Balancing the exchange of ideas among private speakers,” the judge wrote, “is not a legitimate governmental interest.” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/410465/original/file-20210708-23-1mvvz0z.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="The top of the U.S. Supreme Court building." src="https://images.theconversation.com/files/410465/original/file-20210708-23-1mvvz0z.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/410465/original/file-20210708-23-1mvvz0z.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/410465/original/file-20210708-23-1mvvz0z.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/410465/original/file-20210708-23-1mvvz0z.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/410465/original/file-20210708-23-1mvvz0z.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/410465/original/file-20210708-23-1mvvz0z.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/410465/original/file-20210708-23-1mvvz0z.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">‘The Supreme Court,’ writes the author, ‘already decisively dealt with this issue a half-century ago, when newspapers and television stations held power over political discourse comparable to that of Facebook and Twitter today.’</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtVirginaElections/5706504e66dc42a79040fa3de4ea5e25/photo?Query=U.S.%20Supreme%20Court%20building&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=749&currentItemNo=513">AP Photo/Patrick Semansky</a></span>
</figcaption>
</figure>
<p>No one involved with this case could be serious about winning in federal court. But that is not the “court” to which the former president is playing. </p>
<p>Tilting at Silicon Valley appeals directly to Trump’s populist followers, many of whom <a href="https://nymag.com/intelligencer/2018/07/twitter-is-not-shadow-banning-republicans.html">probably suspect</a> that their own clever tweets failed to go viral only because the system is rigged against them. </p>
<p>But even if, as experts <a href="https://www.nbcnews.com/think/opinion/trump-sues-facebook-google-twitter-class-action-lawsuits-sure-fail-ncna1273289">suggest</a>, Trump’s case is destined to fail, dismissal would be yet another headline and fundraising hook, along the lines of, “You knew those socialist judges were in Hillary’s pocket.” And even if Trump were ordered to pay Twitter CEO Jack Dorsey and Facebook CEO Mark Zuckerberg’s attorney fees, they’d have to queue up behind <a href="https://www.wsj.com/articles/donald-trumps-business-plan-left-a-trail-of-unpaid-bills-1465504454">decades’ worth</a> of unpaid Trump creditors. </p>
<p>As Trump would tweet, if given the chance: “So much winning!”</p><img src="https://counter.theconversation.com/content/164146/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Frank LoMonte does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Former President Trump is asking the courts to do what tycoon Trump once would have denounced: tell some of America’s most powerful corporations that they have no choice who they do business with.Frank LoMonte, Director of the Brechner Center for Freedom of Information, University of FloridaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1594952021-04-25T08:32:36Z2021-04-25T08:32:36ZSouth Africa’s 1994 ‘miracle’: what’s left?<figure><img src="https://images.theconversation.com/files/396804/original/file-20210423-19-ztq2zy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's Constitutional Court is considered the bedrock of the country's democratic order. Here it is in session in 2019.</span> <span class="attribution"><span class="source">Photo by Alon Skuy/Sowetan/Gallo Images via Getty Images</span></span></figcaption></figure><p>In the 1990s, a commonly held view was that South Africa had achieved a “miracle” because of its relatively peaceful political transition from apartheid to inclusive democracy in 1994. </p>
<p>The <a href="https://books.google.co.za/books/about/Anatomy_of_a_Miracle.html?id=2IHKD-FY8YgC">“miracle”</a> consisted of South Africans talking their way out of decades of increasingly brutal apartheid rule. They struck a deal whereby the white minority relinquished power to a racially inclusive government in a <a href="https://www.justice.gov.za/legislation/constitution/FoundingProvisions_Constitution.pdf">constitutional democracy</a>. </p>
<p>As psychology professor Pumla Gobodo-Madikizela <a href="https://books.google.co.za/books/about/A_Human_Being_Died_that_Night.html?id=qWvbjFU0H1kC&redir_esc=y">put it</a>, in acceding to democracy, South Africans forged</p>
<blockquote>
<p>a vocabulary of compromise and tolerance {to settle} differences through the politics of contestation and compromise among equals. </p>
</blockquote>
<p>South Africans negotiated a democracy that replaced the parliamentary supremacy of the apartheid era with constitutional supremacy. The new <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a> contains a bill of rights with the unusual inclusion of socio-economic rights alongside liberal rights. This foregrounded human dignity relative to freedom and equality, and non-racialism as a principle.</p>
<p>Non-racialism is South Africa’s unique contribution to the global war against racism. As Marxist scholar Vishwas Satgar <a href="http://witspress.co.za/catalogue/racism-after-apartheid/">has argued</a>, it strategically unifies society beyond race in defiance of apartheid’s imposed racial differences. This necessarily involves actively combating racism.</p>
<p>But the global reverence for South Africa as a country that could <a href="https://www.opendemocracy.net/en/southafrica_succession_3649jsp/">generate</a> “an alternative meaning of what our world might be” has dissipated.</p>
<p>Anti-constitution pessimism and opportunism has been on the rise. <a href="https://edition.cnn.com/2019/05/07/africa/south-africa-elections-inequality-intl/index.html">A lack</a> of meaningful redistribution of wealth has provided an opportunity for politicians to proclaim that constitutional democracy has failed. This is true for people inside as well as outside the ruling African National Congress (ANC). </p>
<p>Scholars influenced by decolonial theories have criticised the constitutional order as a form of <a href="https://repository.up.ac.za/bitstream/handle/2263/64971/Madlingozi_Social_2017.pdf?sequence=1">“neo-apartheid”</a> that merely perpetuates white privilege. Non-racialism has been dismissed as “colour-blindness” that hinders <a href="https://journals.sagepub.com/doi/abs/10.1163/156916306777835349">the correction of race-based inequalities</a>.</p>
<p>But is the pessimistic view accurate?</p>
<p>One of Africa’s leading scholars, Ugandan-born Mahmood Mamdani, believes not.</p>
<h2>Against the tide</h2>
<p>In his latest book, <em><a href="http://witspress.co.za/catalogue/neither-settler-nor-native/">Neither Settler Nor Native</a></em>, Mamdani argues that South Africa has succeeded most in breaking out of colonial divisions and forging a new political community out of five countries he studied. </p>
<p>Looking at South Africa, the US, Germany, Sudan and Israel, he finds South Africa’s solution to otherwise persistent colonial divisions to still be the most promising, if unfinished, project.</p>
<p>Mamdani especially lauds the project of non-racialism. He argues that this charted a new path not set by the racial terms of apartheid, but by an alternative vision that bridges differences towards a united future. </p>
<p>He argues that anti-apartheid activism constructed this vision that broke with apartheid. The possibility for a new, politically forged community beyond the “settler/native” division was created through a “triple shift”.</p>
<p>The first shift was from seeking the end of apartheid to offering an alternative to apartheid. The second was to replace anti-apartheid majoritarianism with non-racial democracy representing all South Africans. The third was to redefine the terms for governing South Africa to terms that denied apartheid’s logic.</p>
<p>Mamdani contends that this triple shift created the basis for a decolonised political identity. This manifested in different ways. As examples, Steve Biko’s <a href="https://theconversation.com/black-consciousness-in-south-africa-demands-a-much-wider-historical-lens-125238">Black Consciousness Movement</a> united the oppressed across apartheid’s racial lines. White activists started working with black <a href="https://www.berghahnjournals.com/view/journals/theoria/64/151/th6415107.xml">trade unions</a>. And the interracial <a href="https://www.sahistory.org.za/article/united-democratic-front-udf">United Democratic Front</a> – an internally based mass movement – was formed in the 1980s. </p>
<p>As Mamdani states (page 350): </p>
<blockquote>
<p>This movement did not simply make political arguments about the wrongness of South African apartheid, as earlier activists did. It demonstrated what the alternative to that political wrong looked like: diverse people working towards a united political future.</p>
</blockquote>
<p>Instead of pursuing punitive justice, Mamdani points out, “South Africans sat around the conference table”. He concedes that the South African national project is an “incomplete success”. Nevertheless, he argues, its citizens used engagement to open the door to becoming adversaries rather than enemies.</p>
<h2>Rekindling a vision</h2>
<p>Mamdani points out that current naysaying of the political achievement of the 1990s loses sight of it being an essential step towards social justice. </p>
<p>He is correct.</p>
<p>Few anti-constitution pessimists engage with what the breakthrough from apartheid to democracy enabled <em>politically</em>. These critics are rightly outraged by <a href="https://borgenproject.org/poverty-in-south-africa/">the socio-economic ravages</a> that most black South Africans continue to suffer. But they largely refrain from questioning the governing ANC’s failure to use its political dominance to shift state levers towards ending inequality.</p>
<p>Instead, the party has pursued a predominantly neoliberal policy. This has kept the country’s race-based wealth gap intact, <a href="https://www.ekon.sun.ac.za/sampieterreblanche/wp-content/uploads/2018/04/Terreblanche-op-ed-on-wealth-inequality-and-TRC-City-Press-January-2018.pdf">except for the upper echelons</a> of society.</p>
<p>This lack of interrogation of ANC policies feeds into the agenda of opportunists wanting to undermine the law to escape accountability for corruption. Former president Jacob Zuma is one of them. </p>
<p>He most recently called the democratic constitutional order a “<a href="https://www.dailymaverick.co.za/article/2021-03-26-jacob-zuma-fires-back-at-constitutional-court-claiming-emergence-of-a-judicial-dictatorship/">judicial dictatorship</a>”. The attack came as part of his efforts to justify his refusal to answer to a commission of inquiry into corruption.</p>
<p>Recent developments, however, show that many South Africans remain unconvinced by opponents of the constitution. Instead, efforts are underway to rekindle its vision, suggesting that the new political community that Mamdani identified is stirring again. </p>
<p>President Cyril Ramaphosa, the ANC’s chief negotiator during the transition, has sought to reactivate the South African imagination of the 1990s. In his inaugural address <a href="http://www.thepresidency.gov.za/speeches/address-president-cyril-ramaphosa-occasion-presidential-inauguration">in 2019</a>, he quoted a popular song by the South African musician Hugh Masekela called <em><a href="https://www.google.com/search?q=thuma+mina+lyrics&rlz=1C1NHXL_enZA711ZA711&oq=%E2%80%9CThuma+Mina%E2%80%9D&aqs=chrome.3.69i57j69i59j0l4j46i175i199j0j46j0.2717j0j7&sourceid=chrome&ie=UTF-8">Thuma Mina</a></em> (“Send me”). His aim was to urge South Africans to come to one another’s aid. </p>
<p>Ramaphosa has also sought to bridge the vast social chasms. This has included securing funds for a <a href="https://solidarityfund.co.za/">“Solidarity Fund”</a> to channel resources from the wealthy to the poor during the COVID-19 pandemic. </p>
<p>Other recent events suggest that more South Africans may be returning to talking to one another. Earlier this year, the Thabo Mbeki Foundation, which has the <a href="https://www.sahistory.org.za/people/thabo-mvuyelwa-mbeki">second democratic-era president</a> as its name patron, met a large group of conservative Afrikaner organisations. The two sides had not met since 2016. </p>
<p>The meeting suggested a renewed willingness among conservative Afrikaners to involve themselves in positive change. Indeed, they made commitments to contribute more actively towards <a href="https://www.news24.com/citypress/news/thabo-mbeki-foundationafrikaner-summit-sets-out-priorities-critical-to-social-cohesion-and-economic-development-20210227">solving South Africa’s myriad problems</a>.</p>
<p>And in March, prominent South Africans from diverse political backgrounds came together to form the <a href="https://www.news24.com/news24/southafrica/news/state-actors-have-gone-rogue-defend-our-democracy-calls-for-law-to-apply-to-everyone-20210419">Defend Our Democracy</a> movement. This interracial civil society grouping has the express purpose of defending the constitution against growing attacks. </p>
<p>The transition to constitutional democracy was not a miracle. As Mamdani argues, it was an act of political imagination which invoked a future society that refused apartheid’s divisions. </p>
<p>Now South Africans have to actualise that future.</p><img src="https://counter.theconversation.com/content/159495/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Christi van der Westhuizen does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The growing defence of South Africa’s beleaguered constitutional democracy is bolstered by African thinker Mahmood Mamdani’s latest book.Christi van der Westhuizen, Associate Professor, Centre for the Advancement of Non-Racialism and Democracy (CANRAD), Nelson Mandela UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1580712021-04-06T13:31:21Z2021-04-06T13:31:21ZFormer opposition leader Tony Leon pushes South Africa’s hot buttons in new book<figure><img src="https://images.theconversation.com/files/393119/original/file-20210401-15-1vrpm07.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Tony Leon celebrates
at the Democratic Alliance's final election rally held in Johannesburg, in April 2004. </span> <span class="attribution"><span class="source">EFE-EPA/Kim Ludbrook</span></span></figcaption></figure><p>Tony Leon is the most prolific of all former leaders of the Democratic Alliance (DA), South Africa’s main opposition party, as befits the chair of a communications company. </p>
<p>In his latest and fifth book, <a href="https://www.loot.co.za/product/tony-leon-future-tense/jrxh-7080-g790"><em>Future Tense: Reflections on my Troubled Land</em></a>, he comes across as articulate and persuasive.</p>
<p>The Democratic Alliance has, ever since its original founding as the <a href="https://theconversation.com/south-africas-democratic-alliance-at-60-big-strategic-questions-lie-ahead-117129">Progressive Party in 1959</a>, opposed injustices committed by the apartheid government. Today, its support is overwhelmingly from demographic minorities. Its current challenges include ensuring black people are more visible among its top leadership. </p>
<p>Recent turmoil included veteran party leader <a href="https://www.da.org.za/people/helen-zille-2">Helen Zille</a> propelling <a href="https://www.sahistory.org.za/people/mmusi-aloysias-maimane">Mmusi Maimane</a> into the leadership of the party. The other was Tony Leon’s role in <a href="https://www.sowetanlive.co.za/news/south-africa/2019-10-22-mmusi-maimane-inconsistent-and-conflict-averse/">pressuring Maimane to resign</a> after a series of DA tactical errors culminated in electoral losses <a href="https://theconversation.com/south-africas-2019-poll-showed-dangerous-signs-of-insiders-and-outsiders-121758">in 2019</a>. </p>
<p>The new and most useful content in his book is in chapters 2 and 3. They provide the first insider account of the <a href="https://theconversation.com/imposter-syndrome-explains-why-first-black-leader-of-south-africas-main-opposition-party-quit-125826">ousting of Maimane</a>, the party’s first black leader, <a href="https://www.timeslive.co.za/politics/2019-10-23-breaking-da-leader-mmusi-maimane-quits/">in October 2019</a>. His meteoric rise and that of former DA parliamentary leader <a href="https://www.sahistory.org.za/people/lindiwe-mazibuko">Lindiwe Mazibuko</a>, and the attempted recruitment of <a href="https://www.sahistory.org.za/people/dr-mamphela-aletta-ramphele">Mamphela Ramphele</a>, the outspoken liberation struggle activist, were viewed as the DA expanding out of its former limits, to gain African voters. Their departures deflated such hopes.</p>
<p>Leon also delves into the accompanying turmoil within the DA because of the choices made by <a href="https://theconversation.com/south-africas-liberals-are-failing-to-wrap-their-heads-around-race-127029">Zille</a>, who has retained senior positions in the party and refused to relinquish power. </p>
<p>Leon mulls over the DA’s biggest challenge: “how to maintain its majority support among minorities, and increase its meagre voter share among the black majority” (page 21).</p>
<p>These remain unsolved conundrums for the party even after two decades of democracy. <a href="https://www.thoughtco.com/racial-classification-under-apartheid-43430">African</a> voters comprise four-fifths of the electorate. For the DA to ever become the ruling party, even in a coalition, it must win over more than just <a href="https://www.sahistory.org.za/article/race-and-ethnicity-south-africa">racial minorities</a> voters.</p>
<h2>Strengths</h2>
<p><em>Future Tense</em> raises classical political issues that have been debated for over two centuries. One of the biggest is: what is the optimal blend of markets and the state in the economy? </p>
<p>A pragmatic – and not dogmatic – answer would surely be different between different countries, and between different times.</p>
<p>For example, during the 1950s, socialists like <a href="http://www.thepresidency.gov.za/national-orders/recipient/jawaharlal-nehru-1889-1964">Jawaharlal Nehru</a> in India and <a href="http://nasser.bibalex.org/Common/NasserLife_en.aspx?lang=en">Gamal-Abdel Nasser</a> in Egypt knew what to do for unemployment: the state should found steel mills and textile mills to employ tens of thousands of people.</p>
<p>But in 2021, an automated and robotic steel and textile mill typically each employ far fewer workers. Jobs now lie in tourism, computer coding, and digital industries such as designing websites. These require accomplished skill sets. With protracted unemployment standing at a horrific 42% (and reaching 93% in a small country town such as Touws Rivier) this is a hot button for South Africa.</p>
<p>Another hot button topic Leon touches on is the issue of affirmative action. He points to what he sees as a contradiction – the fact that the country’s <a href="https://www.gov.za/documents/constitution/chapter-2-bill-rights#7">Bill of Rights</a> enshrines non-racialism, yet the government pursues a policy of affirmative action. </p>
<p>Leon points out that the mechanistic enforcement of affirmative action for demographic proportionality (black people are the majority) has the consequence that “Indian” police officers (from a demographic representing 3% of South Africans) are banned from being promoted to all top tiers where there are fewer than 34 posts. This is the opposite of a non-racial society where any individual can be promoted solely on merit.</p>
<p>Much of <em>Future Tense</em> is taken up with summarising two decades of media exposés of corruption in the African National Congress (ANC) government, and the descent into kleptocracy under Jacob Zuma’s presidency between <a href="http://www.thepresidency.gov.za/profiles/president-jacob-zuma-0">May 2009 and January 2018</a>. Leon ascribes the main cause to the ANC policy of <a href="https://www.researchgate.net/publication/321223498_The_African_National_Congress_ANC_and_the_Cadre_Deployment_Policy_in_the_Postapartheid_South_Africa_A_Product_of_Democratic_Centralisation_or_a_Recipe_for_a_Constitutional_Crisis">cadre deployment</a>. The practice makes sure that key government positions are held by party loyalists. This is similar to what the USA calls the “spoils system”. It’s been criticised as valuing party loyalty over ability, competence and probity. </p>
<p>Leon also ascribes the cause of corruption to the ANC removing the power of the Public Service Commission to promote civil servants solely on merit. </p>
<p>The weight of his arguments may be judged by the fact that the government is now publicly discussing restoring the remit of the Public Service Commission on this issue.</p>
<p><em>Future Tense</em> also discusses foreign policy. The ANC’s historical allies were the Soviet Union (Russia) and Cuba. The US, the UK, Germany and other EU states remain South Africa’s major investment and trading partners. Leon, a former ambassador to Argentina, argues that the ANC’s cold war vintage rhetoric and stances do not succeed in optimally managing the complexities of these global realities.</p>
<h2>Criticisms</h2>
<p><em>Future Tense</em> repeatedly reminds readers of how many dire predictions and prophecies of South Africa’s future have come a cropper.</p>
<p>The book offers its readers both the virtues of the liberal vision and its limitations. Virtues of the liberal vision include support for individual human rights, accepting doubt and uncertainties, and tolerating dissenting opinions. Limitations are that it sometimes opposes state interventions in the market to mitigate social injustices, and redressing some of the issues raised by identitarian politics.</p>
<p><em>Future Tense</em> has more than a chapter on millionaire and billionaire emigration from South Africa. They are supposedly driven out mostly by state affirmative action, preferential procurement and other economic policies, as well as the crime wave. But it doesn’t have even one sentence about the immigration of two million working class Africans from other countries, and what this might tell us. Leon’s closeness to the plutocratic classes is matched by his distance from acquaintance with working class realities.</p>
<p>He gives an example of how affirmative action caused the emigration of one white University of Cape Town postdoctoral fellow. But he does not mention how the university has attracted top scholars from other African countries.</p>
<p>One chapter explicitly, and the book as a whole, is suffused with the perspectives and arguments of private wealth and investment bankers.
But the contrasting arguments of the labour movement, including the Congress of South African Trade Unions, the biggest labour federation, and the research done by the NGOs supporting it, appear only in a sentence or two for dismissal.</p>
<p>Similarly, this book and the Democratic Alliance, which the author once led and is still associated with, give readers the impression that they judge South Africa’s foreign policy by the degree to which it complies with the foreign policy of the <a href="https://www.nato.int/">North Atlantic Treaty Organisation</a> countries, and have a tin ear for the importance of pan-African empathies.</p>
<p>There is no nuanced perception that western powers selectively invoke human rights violations against their targeted regimes, while enthusiastically selling armaments to human rights violators they view as business friendly.</p>
<p><em>Future Tense</em> is a good read, and should be on everyone’s bookshelf. This reviewer hopes that former South African president Thabo Mbeki and the incumbent Cyril Ramaphosa will not leave everything to their biographers, but will also write up their own memoirs. It is good to have both former presidents, as well as former leaders of the official opposition, tell us in their own words their perspectives on what happened.</p><img src="https://counter.theconversation.com/content/158071/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Keith Gottschalk is an ANC member, but writes this in his professional capacity as a political scientist.</span></em></p>Leon mulls over the Democratic Alliance’s biggest challenge: ‘how to maintain its majority support among minorities, and increase its meagre voter share among the black majority’.Keith Gottschalk, Political Scientist, University of the Western CapeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1530932021-01-14T23:44:01Z2021-01-14T23:44:01ZWhy the alt-right believes another American Revolution is coming<p>The alt-right, QAnon, paramilitary and Donald Trump-supporting <a href="https://twitter.com/HannahAllam/status/1349328144969457664?s=20">mob</a> that stormed the US Capitol on January 6 claimed they were only doing what the so-called “<a href="https://www.history.com/topics/american-revolution/founding-fathers-united-states">founding fathers</a>” of the US had done in 1776: overthrowing an illegitimate government that no longer represented them. </p>
<p>This was the start of what they called the “<a href="https://www.latimes.com/world-nation/story/2021-01-06/the-second-revolution-begins-today-armed-right-wing-groups-celebrate-attack-on-capitol">second American Revolution</a>”. </p>
<p>This is why the <a href="https://theconversation.com/yellow-gadsden-flag-prominent-in-capitol-takeover-carries-a-long-and-shifting-history-145142">“Don’t Tread on Me” flag</a> was visible in the chaos — a symbol of resistance that dates back to the (first) American Revolution and was <a href="https://www.npr.org/templates/story/story.php?storyId=125184586">resurrected</a> a decade ago by Republican <a href="http://content.time.com/time/photogallery/0,29307,1922169,00.html">Tea Party activists</a>. </p>
<p>It is not hard to understand the appeal of this history to Trump’s followers. The era of the “founding fathers” has always <a href="http://www.andyschocket.net/fighting-over-the-founders/">loomed large in the minds of most Americans</a>. And stories about the past are, after all, how <a href="http://cup.columbia.edu/book/the-presence-of-the-past/9780231111485">individuals, families</a>, and <a href="https://www.oxfordreference.com/view/10.1093/oi/authority.20110803095958187">communities small and large</a>, make sense of themselves. </p>
<p>Yet, it is worth noting these recollections of the past are necessarily selective. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1344376500699672577"}"></div></p>
<h2>The right to life, liberty — and to abolish government</h2>
<p>Alt-right extremists, following conservative politicians, have also drawn succour from the Constitution, particularly when it comes to their “rights”, such as the right to free speech and bear arms. </p>
<p>These and other rights were not actually enumerated in the original Constitution, but rather tacked on in the <a href="https://www.archives.gov/founding-docs/bill-of-rights-transcript#toc-the-u-s-bill-of-rights">Bill of Rights</a> — a set of ten amendments passed <a href="https://us.macmillan.com/books/9780809016433">to appease opponents of the Constitution</a> and get it ratified.</p>
<p>These rights are fused together with the more vague yet “unalienable” rights enunciated in the 1776 <a href="https://www.archives.gov/founding-docs/declaration-transcript">Declaration of Independence</a> — chief among them being the right to “life, liberty and the pursuit of happiness”.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-were-the-capitol-rioters-so-angry-because-theyre-scared-of-losing-grip-on-their-perverse-idea-of-democracy-152812">Why were the Capitol rioters so angry? Because they're scared of losing grip on their perverse idea of democracy</a>
</strong>
</em>
</p>
<hr>
<p>Drawing on philosopher John Locke’s <a href="https://www.neh.gov/humanities/2007/januaryfebruary/feature/building-the-bill-rights">ideas</a>, the Declaration of Independence proclaims “we the people” come together to form a government to protect these rights. </p>
<p>And crucial to Trump supporters today, it says, </p>
<blockquote>
<p>whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.</p>
</blockquote>
<p>This was the sentiment voiced on January 6 when pro-Trump rioters stormed the Capitol. They <a href="https://slate.com/news-and-politics/2021/01/capitol-riot-photos-inside-trump.html">chanted</a> “This is our America” and “Whose house? Our house!” </p>
<p>Trump himself <a href="https://www.brandeis.edu/now/2021/january/trump-language-capitol-riot-mcintosh.html">encouraged this thinking</a> when he told the crowd before they marched to the Capitol, “You’ll never take back our country with weakness.”</p>
<p>The question is: who do Trump and, more broadly speaking, the alt-right think has taken the United States from them?</p>
<h2>Rights for only a select few</h2>
<p>The answer is evident in how the alt-right imagines the past: their vision of history omits or callously ignores the fact their constitutional rights have come at the cost of the lives and rights of others. </p>
<p>Thomas Jefferson wrote in the Declaration of Independence it was a “self-evident” truth “that all men are created equal.” Generations of enslaved and free Black activists and their allies have <a href="https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1592&context=faculty_scholarship">worked towards</a> <a href="https://www.mprnews.org/story/2013/08/28/daily-circuit-march-on-washington">realising this goal</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-the-far-right-and-white-supremacists-have-embraced-the-middle-ages-and-their-symbols-152968">Why the far-right and white supremacists have embraced the Middle Ages and their symbols</a>
</strong>
</em>
</p>
<hr>
<p>But for the founding fathers, and many of their white supremacist heirs, true “citizens” were exclusively white and male. A few years after penning the declaration, Jefferson denounced <a href="https://www.pbs.org/wgbh/aia/part3/3h490t.html">Black people as inferior</a>. He owned hundreds of slaves. Even his own children, whom he fathered with Sally Hemings, <a href="https://ushistoryscene.com/article/hemings-jefferson/">were born into slavery</a>.</p>
<p>Almost all of the founding fathers, in fact, <a href="https://www.history.com/news/how-many-u-s-presidents-owned-slaves">were slaveholders</a> or <a href="https://www.forbes.com/sites/hbsworkingknowledge/2017/05/03/the-clear-connection-between-slavery-and-american-capitalism/?sh=7f3d78c7bd3b">profited from the slave trade</a>. Neither the Declaration of Independence nor the Constitution freed any of the half million enslaved people in the new United States — <a href="http://slaveryandremembrance.org/articles/article/?id=A0064">one-fifth</a> of the population.</p>
<p>Rather, the Constitution purposefully <a href="https://www.theatlantic.com/politics/archive/2015/09/how-the-constitution-was-indeed-pro-slavery/406288/">entrenched</a> the institution of slavery. By protecting the rights of slaveholders to pursue their happiness by holding on to their “<a href="https://www.penguin.com.au/books/the-price-for-their-pound-of-flesh-9780807067147">property</a>”, it doomed <a href="https://www.smithsonianmag.com/history/maps-reveal-slavery-expanded-across-united-states-180951452/">four more generations</a> to enslavement. </p>
<figure class="align-center ">
<img alt="Signing of the Declaration of Independence" src="https://images.theconversation.com/files/378773/original/file-20210114-23-1u1vavy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/378773/original/file-20210114-23-1u1vavy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=374&fit=crop&dpr=1 600w, https://images.theconversation.com/files/378773/original/file-20210114-23-1u1vavy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=374&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/378773/original/file-20210114-23-1u1vavy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=374&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/378773/original/file-20210114-23-1u1vavy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=470&fit=crop&dpr=1 754w, https://images.theconversation.com/files/378773/original/file-20210114-23-1u1vavy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=470&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/378773/original/file-20210114-23-1u1vavy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=470&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Signing of the Declaration of Independence, by Armand Dumaresq.</span>
<span class="attribution"><span class="source">The White House Historical Association (White House Collection)</span></span>
</figcaption>
</figure>
<p>By the start of the Civil War in 1861, there were <a href="https://www.loc.gov/rr/geogmap/placesinhistory/archive/2011/20110318_slavery.html#:%7E:text=March%2018%2C%201861&text=Of%20those%2031%20million%2C%20as,the%201850%20and%201860%20census.">4 million people</a> enslaved in the US.</p>
<p>The Constitution also gave the government the power to raise an army. After the American Revolution, this power was used time and again <a href="https://yalebooks.yale.edu/book/9780300218121/surviving-genocide">to wage a long genocidal war</a> against Native Americans across the continent. </p>
<p>When enslaved and free Black people and their white abolitionist allies acted against slavery, slaveholders invoked the Revolution. They claimed they were undertaking God’s will to complete the work begun in 1776 of creating a free nation, and made <a href="https://ericaarmstrongdunbar.com/nevercaught-ericaarmstrongdunbar">slave-holding former President George Washington</a> <a href="https://www.historynet.com/george-washington-hero-of-the-confederacy.htm">their hero</a>.</p>
<p>It took an unprecedented and destructive Civil War to finally put an end to slavery, and another century or so for African Americans to achieve full rights as citizens in the United States. Every step of the way, they were <a href="https://www.thirteen.org/wnet/jimcrow/stories_events_uncivil.html">contested</a> and <a href="https://americanhistory.si.edu/brown/history/1-segregated/separate-but-equal.html">blocked</a> by <a href="https://www.professorcarolanderson.org/white-rage">individuals, groups, states and judges</a> who claimed they were upholding the principles of the Constitution.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-is-the-confederate-flag-so-offensive-143256">Why is the Confederate flag so offensive?</a>
</strong>
</em>
</p>
<hr>
<h2>Rights trump equality</h2>
<p>It should be no surprise, then, the alt-right movement is invoking the same “Revolution” today. </p>
<p>After Barack Obama’s presidency, Trump <a href="https://www.nytimes.com/2016/07/14/us/politics/donald-trump-white-identity.html">gave a voice</a> to the grievances of his largely white supporters who feared they were being displaced in their own country.</p>
<p>And following the summer of the Black Lives Matter movement and Trump’s baseless claims the 2020 election was stolen, the Capitol Hill insurrectionists firmly believed “they” had lost control of the United States. They were no longer the “we the people” in charge. </p>
<p>As in the past, they also had the support of prominent politicians beyond Trump. One of their supporters, the newly elected Congresswoman Marjorie Taylor Greene (who is also a <a href="https://www.theguardian.com/us-news/2020/nov/03/qanon-marjorie-taylor-greene-wins-congress">QAnon supporter</a>) declared before the January 6 move to block the certification of Joe Biden’s presidential victory,
“<a href="https://fb.watch/2_0CO1eCeS/">This is our 1776 moment</a>”. </p>
<p>And Congressman Paul Gosar, a prominent Trump supporter, wrote an op-ed entitled “Are we witnessing a coup d’etat?” in which he <a href="https://www.nytimes.com/2021/01/12/us/trump-loyalists-in-congress-fanned-flames-before-capitol-riot.html">advised followers</a> to “be ready to defend the Constitution and the White House”.</p>
<p>It has never been entirely clear when exactly the United States <a href="https://theconversation.com/trump-has-made-america-nostalgic-again-for-a-past-that-never-existed-149449">was last great</a> in the minds of Trump supporters wearing their “Make America Great Again” caps. It might be the Ronald Reagan presidency of the 1980s for some, or sometime prior to the civil rights, women’s and gay liberation movements and the <a href="https://www.hup.harvard.edu/catalog.php?isbn=9780674286078&content=reviews">US defeat in Vietnam</a>.</p>
<p>But there’s no doubt as to when this mythical greatness started. The yearning for the founding era — a time when slaveholders overthrew a government to protect their rights (including the right to hold people as property) — is palpable.</p><img src="https://counter.theconversation.com/content/153093/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clare Corbould has previously received funding from the Australian Research Council. She is a member of the Australian Greens.</span></em></p><p class="fine-print"><em><span>Michael McDonnell receives funding from the Australian Research Council. </span></em></p>Trump supporters have staked a claim to the US Constitution and the founding era of the country in their battle against what they perceive as an ‘illegitimate’ government.Clare Corbould, Associate Professor, Contemporary Histories Research Group, Deakin UniversityMichael McDonnell, Professor of History, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1504782020-11-25T14:37:00Z2020-11-25T14:37:00ZHow values, interests and power must shape South Africa’s foreign policy<figure><img src="https://images.theconversation.com/files/371069/original/file-20201124-23-1j9w6n3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South African president Cyril Ramaphosa addressing the G20 recently. </span> <span class="attribution"><span class="source">GCIS</span></span></figcaption></figure><p>The COVID-19 crisis is one of many indicators that we live in dangerous and uncertain times. Others include the international community’s struggle to respond to technological and climate change, demographic shifts, growing poverty and inequality as well as increased global insecurity. </p>
<p>The global governance arrangements for managing these changes are no longer fit for purpose. Take the decision making procedures in the <a href="https://www.un.org/securitycouncil/">UN Security Council</a> and the International Monetary Fund <a href="https://www.imf.org/external/index.htm">(IMF)</a>. They don’t account for the growing importance of developing countries. Nor do they meaningfully accommodate non-state actors such as transnational corporations and civil society groups. </p>
<p>These changes are pushing countries to reassess how they use foreign policy to serve their national interests. A recently published book, <a href="https://www.pulp.up.ac.za/edited-collections/values-interests-and-power-south-african-foreign-policy-in-uncertain-times"><em>Values, Interest and Power: South African Foreign Policy in Uncertain Times</em></a>, contributes to such a reassessment in South Africa. The book was co-edited by foreign relations expert Elizabeth Sidiropoulos and me.</p>
<p>In the book, a group of senior and junior South African authors offer suggestions on how the country can formulate and implement a foreign policy that responds to a changing global world. </p>
<p>We maintain that foreign policy making should be guided by the national interest. The South African <a href="https://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf">constitution</a> provides important guidance on this. This is because it’s a product of the country’s history, politics and culture. It expresses its values and aspirations.</p>
<p>On foreign policy, it allocates responsibilities and authority among the different branches of government. It also instructs relevant government authorities to base their foreign policy on the values expressed in the <a href="https://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-02.pdf">bill of rights</a>.</p>
<p>Subject to these constraints, policy makers are free to determine foreign policy priorities according to their view of the country’s economic, geo-strategic, political, cultural, environmental and security interests.</p>
<h2>Recommendation</h2>
<p>The book concludes with some recommendations for South Africa’s foreign policy makers. </p>
<p>First, foreign policy should:</p>
<ul>
<li><p>contribute to implementing the domestic economic and social transformation agenda,</p></li>
<li><p>be consistent with the values and governance arrangements set out in the constitution,</p></li>
<li><p>position South Africa to be a norm entrepreneur in global affairs. This means pursuing creative and principled solutions to global issues, </p></li>
<li><p>advocate reforms to global governance arrangements so that they become more responsive to the concerns of the global South. And become more accountable.</p></li>
</ul>
<p>Secondly, we recommend changing the way which foreign policy is designed. The Presidency should establish an inter-agency coordinating council that can formulate a coherent and effective foreign policy. The <a href="http://www.dirco.gov.za/department/index.html">Department of International Relations and Cooperation</a> should then lead implementation.</p>
<p>Our third recommendation is that Parliament and the <a href="https://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-09.pdf">Chapter 9 institutions</a> should play a role in foreign policy making. These institutions support the country’s constitutional democracy. For example, the <a href="https://www.sahrc.org.za/">Human Rights Commission</a> could issue an annual report assessing how effectively the government has used international relations to advance human rights at home. </p>
<p>In addition, there should be an annual meeting with these bodies to discuss the government’s foreign policy objectives for the year ahead. This could be run by the executive through the Presidency or the foreign relations department.</p>
<p>Fourthly, we recommend that a concerted effort be made to ensure that foreign service staff have the technical and language skills to deal with the expanding range of issues facing the country on the global arena. Equally important, they should also understand the links between domestic social and economic transformation and foreign policy. </p>
<h2>Top of mind topics</h2>
<p>We also make recommendations on specific topics. </p>
<p><strong>Economic development and cooperation:</strong> South Africa needs to pay attention to its trade and economic relations, particularly in Africa. For example, the new <a href="https://theconversation.com/why-africas-free-trade-area-offers-so-much-promise-93827">African Continental Free Trade Area</a> should open important trading and job creating opportunities. It will also help develop regional value chains. </p>
<p>We recommend that the government, business, labour and other stakeholders develop an integrated strategy to take advantage of these opportunities.</p>
<p><strong>Climate change:</strong> The country has played an important leadership role in the global <a href="https://www.environment.gov.za/projectsprogrammes/donorfunded/unfccc">United Nations Framework Convention on Climate Change</a> negotiations.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/370292/original/file-20201119-15-qrhl1w.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/370292/original/file-20201119-15-qrhl1w.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=957&fit=crop&dpr=1 600w, https://images.theconversation.com/files/370292/original/file-20201119-15-qrhl1w.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=957&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/370292/original/file-20201119-15-qrhl1w.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=957&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/370292/original/file-20201119-15-qrhl1w.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1203&fit=crop&dpr=1 754w, https://images.theconversation.com/files/370292/original/file-20201119-15-qrhl1w.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1203&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/370292/original/file-20201119-15-qrhl1w.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1203&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<p>To continue playing this role credibly, it should reduce the inconsistencies between its domestic and global climate change related policies. In particular, it needs to stress in both arenas the important relationship between climate change and social justice.</p>
<p><strong>Peace and security:</strong> South Africa should draw lessons from its experiences in African peacemaking about how it can help African regional bodies end conflicts.</p>
<p>We also recommend that the country develops a maritime strategy. This is important for two reasons. First, South Africa is bounded by two major oceans. Its exclusive economic zone is bigger than its land mass. Second, external actors are becoming increasingly interested in the Indian Ocean. They see it as part of a bigger maritime space stretching from the Pacific to the east coast of Africa. Without such a strategy, it will be difficult for the country to protect its interests.</p>
<p><strong>The multilateral system:</strong> Middle sized powers like South Africa need a reformed multilateral system. It should, therefore, continue to be engaged in the debates on reforming it. </p>
<p>Given resource constraints, it needs to focus on institutions where reform is feasible. These include the World Trade Organisation, the IMF and the World Bank. Reforms should focus on creating greater voice for underrepresented countries, and more public accountability and transparency. </p>
<p>South Africa should also use its platform in global forums like the <a href="https://g20.org/en/about/Pages/whatis.aspx">G20</a> and <a href="https://www.gov.za/about-government/brics-brazil-russia-india-china-south-africa-1">BRICS</a> to promote issues of concern to Africa, and to foster greater inter-regional cooperation.</p>
<h2>Need for coherence</h2>
<p>A foreign policy that looks incoherent – or is merely reactive – can have both reputational and material costs. We hope this book contributes to improving the gains the country can make from its international relations.</p>
<p><em>Elizabeth Sidiropolous, CEO, South African Institute of International Affairs, contributed to this article</em>.</p><img src="https://counter.theconversation.com/content/150478/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Danny Bradlow's SARCHI chair is funded by the National Research Foundation.</span></em></p>While South Africa should pay careful attention to all its existing trade and economic relations, particular attention should go to its intra-African economic relations.Danny Bradlow, SARCHI Professor of International Development Law and African Economic Relations, University of PretoriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1483792020-11-01T07:57:35Z2020-11-01T07:57:35ZSouth Africa has another go at an expropriation law. What it’s all about<figure><img src="https://images.theconversation.com/files/366387/original/file-20201029-17-xy1661.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Young Sandi Sile on an abandoned structure in Makhanda, South Africa, in 2013. Questions remain about how the new law will treat abandoned land. </span> <span class="attribution"><span class="source">Getty Images</span></span></figcaption></figure><p>When South Africa officially became a constitutional democracy in South Africa on <a href="https://www.gov.za/documents/constitution/constitution-republic-south-africa-1996-1">4 February 1997</a> it heralded profound change in the way the country is governed. Once a racially oppressive pariah state, it became one based on freedom, human rights and the rule of law. </p>
<p>All laws that were not in keeping with the new constitution had to be changed to give effect to the rights enshrined in the new supreme law. One such law is the Expropriation Act, which governs how the government can acquire land owned by private citizens for public purposes such as building roads and railways. </p>
<p>The constitution changed the compensation standard from requiring the government to pay “market value” for such land to <a href="https://www.researchgate.net/publication/321670076_What_is_just_and_equitable_compensation_for_land_reform">“just and equitable”</a> compensation. The requirement that expropriation be in the public interest (which includes a commitment to land reform and other reforms) was included. The requirement that a fair procedure be followed when expropriating was included in section 33 of the <a href="https://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-02.pdf">bill of rights</a>. </p>
<p>The constitution laid down a framework in which expropriation must happen, but did not provide the details of how. This is the role of legislation. Such legislation is necessary to bring the process in line with the constitution.</p>
<h2>Long, arduous process</h2>
<p>The first attempt at an Expropriation Bill was 12 years ago, in <a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjk_fL937jsAhWQx4UKHaT3As0QFjAAegQIAhAC&url=https%3A%2F%2Fpmg.org.za%2Ffiles%2Fbills%2F080416b16-08.pdf&usg=AOvVaw2E61_FpIKOugF8btpYSAGm">2008</a>, but it was shelved because of the concern that it obscured the role of the courts in expropriation and would therefore be declared unconstitutional. </p>
<p>Another attempt was made in <a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjiw5Tn37jsAhWBqqQKHXj-A4wQFjAAegQIAhAC&url=https%3A%2F%2Fwww.gov.za%2Fsites%2Fdefault%2Ffiles%2Fgcis_document%2F201409%2F36269gen234.pdf&usg=AOvVaw08hwxR5n2yTB8RbEdyd3gM">2013</a>. The 2013 bill was refined and became the 2015 bill, which made it onto the table of the president the same year, to be signed into law. But it was officially <a href="https://pmg.org.za/committee-meeting/26932/">withdrawn</a> in 2018 because the process of amending section 25 of the constitution was still not completed. Communities living on land in terms of customary law also had <a href="https://www.businesslive.co.za/bd/national/2018-12-24-draft-expropriation-bill-a-disappointment-for-land-rights-organisation/">reservations</a> about its constitutionality, including the public participation process. </p>
<p>The country is having another attempt at passing an expropriation law that is in keeping with the constitution. The 2015 version, with slight amendments and the addition of clauses 12(3) dealing with “nil compensation”, was published again in December 2018.</p>
<p>This new bill, the <a href="https://www.dalrrd.gov.za/docs/media/2020%2010%2011%20JOINT%20STATEMENT%20BY%20IMC%20ON%20LAND%20REFORM%20EXPROPRIATION%20BILL.pdf">2020 Expropriation Bill</a>, was recently published in the government gazette. Importantly, this bill is not a result of the process to amend section 25 of the constitution to enable expropriation at nil compensation.</p>
<h2>Section 25 amendment</h2>
<p>Section 25 sets down the requirements that the state has to comply with if it wants to expropriate property: it must be done in terms of a law of general application; it must be for a public purpose or in the public interest; and lastly, “just and equitable” compensation must be paid. </p>
<p>The <a href="https://pmg.org.za/committee-meeting/29530/">proposed section 25 amendment</a> makes it explicit that it might be “just and equitable” in some instances to pay nil compensation. But the state must still justify why not paying compensation is “just and equitable”. All other requirements must still be complied with. </p>
<p>Section 25 of the constitution provides the framework in which the 2020 Expropriation Bill will operate, once it becomes law. </p>
<h2>Why expropriation?</h2>
<p>Expropriation is a mechanism for the state to acquire property for public projects, such as the building of the railways, mass housing and roads. It is not only used in land reform instances, and is not only restricted to land.</p>
<p>Because expropriation is an administrative action by the government, the procedure must be just and give affected people an avenue for recourse in the case of abuse.</p>
<p>The 2020 Expropriation Bill sets out the procedure that the authorities must follow when expropriating property, how compensation must be calculated and paid, and where and when decisions can be challenged. </p>
<p>It includes a comprehensive mediation process, and guarantees access to the courts as the final form of oversight.</p>
<h2>Some contentious issues</h2>
<p>The bill has gone through consultative processes at the <a href="https://nedlac.org.za/">National Economic Development and Labour Council</a>, which facilitates consensus and cooperation between government, labour, business and the community in dealing with South Africa’s socio-economic challenges.</p>
<p>Still, there are a few unclear provisions that will most probably be focused on during the parliamentary public participation process. These are the definitions of “expropriation”, the provision for nil compensation and expropriating land from communities.</p>
<p><strong>Definition</strong></p>
<p>The definition of “expropriation” provides that an act will only be an expropriation if the state <em>acquires</em> the property. The concern is whether, if the property is expropriated for land reform purposes and transferred to a private beneficiary, it will be deemed an “acquisition by the state”. The bill obscures this a bit in clause 9(1)(a) where it seems to suggest that a private beneficiary can also “acquire” the property.</p>
<p>The legally correct route would be for the state to first acquire the property and then transfer it to the beneficiary. These actions can happen simultaneously in the Deeds Office and should not delay the transfer. The bill must reflect this.</p>
<p><strong>Nil compensation</strong></p>
<p>Clause 12(3) and (4) provides that</p>
<blockquote>
<p>it may be just and equitable for nil compensation to be paid where land is expropriated in the public interest, having regard to all relevant circumstances, including but not limited to …</p>
</blockquote>
<p>It then lists the instances where the state possibly foresees nil compensation to be applicable. The bill clarifies that this is, for example, land that is </p>
<blockquote>
<p>not being used and the owner’s main purpose is … to benefit from appreciation of market value. </p>
</blockquote>
<p>This might still be vague, but it does give a more precise indication that it is not property earmarked for development.</p>
<p>Similarly, it’s not clear how “abandoned land” will be handled. Will this bear the technical legal meaning that the owner abandoned the land with the intention of no longer being owner? Or will it also include land that the owner left because it was no longer safe to stay on? </p>
<p><strong>Communities</strong></p>
<p>Owners of land earmarked for expropriation have specific time-frames in which they must respond. It seems as if the time-frames in the bill were written with a single owner of land in mind, and not for situations where whole communities living on land in terms of customary law are concerned. </p>
<h2>The next steps</h2>
<p>What is desperately needed in the land reform context for expropriation to be a useful tool is redistribution legislation that authorises the expropriation, and sets out what must happen after the state has acquired the land. </p>
<p>In the meantime, the bill will now go to the committee of the National Assembly that will hopefully start the public participation process. The bill will also have to go to the National Council of Provinces, the house of parliament that ensures that provincial interests are taken into account on the national level. </p>
<p>Considering all that, the bill will probably only be finalised some time next year, if all goes well.</p><img src="https://counter.theconversation.com/content/148379/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elmien du Plessis does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The proposed new law has a long history. The country has been trying for almost 12 years now to come up with expropriation legislation that is in line with the constitution.Elmien du Plessis, Associate Professor of Law, North-West UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1478252020-10-12T18:17:09Z2020-10-12T18:17:09ZPlot to kidnap Michigan’s governor grew from the militia movement’s toxic mix of constitutional falsehoods and half-truths<figure><img src="https://images.theconversation.com/files/362778/original/file-20201009-23-1gseggi.png?ixlib=rb-1.1.0&rect=13%2C9%2C854%2C524&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Pete Musico, left, is one of the founding members of the Wolverine Watchmen, as is Joseph Morrison, right. Both were charged in the plot to kidnap Michigan Gov. Gretchen Whitmer. (Jackson County Sheriff’s Office via AP)</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/MichiganGovernor-KidnappingPlot/523aa0e2200846129bf32c9ce4f8899f/photo?Query=Michigan%20AND%20militia&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=49&currentItemNo=0/https://newsroom.ap.org/detail/MichiganGovernor-KidnappingPlot/d237ba7029d5460c826f2f8375e11a1e/photo?Query=Michigan%20AND%20militia&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=49&currentItemNo=1">Jackson County Sheriff’s Office via AP</a></span></figcaption></figure><p>The U.S. militia movement has long been steeped in a peculiar – and unquestionably mistaken – interpretation of the Constitution, the Bill of Rights and civil liberties. </p>
<p>This is true of an armed militia group that calls itself the Wolverine Watchmen, who were involved in the recently revealed <a href="https://www.washingtonpost.com/national-security/michigan-governor-kidnap-plot/2020/10/08/0032e206-0980-11eb-9be6-cf25fb429f1a_story.html">plot to overthrow</a> Michigan’s government and kidnap Gov. Gretchen Whitmer. </p>
<p>As I wrote in “<a href="https://rowman.com/ISBN/9781538123683/Fracturing-the-Founding-How-the-Alt-Right-Corrupts-the-Constitution">Fracturing the Founding: How the Alt-Right Corrupts the Constitution</a>,” published in 2019, the crux of the militia movement’s devotion to what I have called the “alt-right constitution” is a toxic mix of constitutional falsehoods and half-truths. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/362816/original/file-20201011-13-leg0z9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Michigan Gov. Gretchen Whitmer addressing the state." src="https://images.theconversation.com/files/362816/original/file-20201011-13-leg0z9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/362816/original/file-20201011-13-leg0z9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/362816/original/file-20201011-13-leg0z9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/362816/original/file-20201011-13-leg0z9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/362816/original/file-20201011-13-leg0z9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/362816/original/file-20201011-13-leg0z9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/362816/original/file-20201011-13-leg0z9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The men arrested were charged in a plot to kidnap and place on trial Michigan Gov. Gretchen Whitmer.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/MichiganGovernorKidnappingPlot/37be31aef6d244d488394d44506fc23f/photo?Query=Whitmer&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=693&currentItemNo=17">Michigan Office of the Governor via AP</a></span>
</figcaption>
</figure>
<h2>Private militias</h2>
<p>The term “militia” has many meanings. </p>
<p><a href="https://law.justia.com/constitution/us/article-1/58-the-militia-clauses.html">The Constitution addresses militias in Article 1</a>, authorizing Congress to “provide for organizing, arming and disciplining, the Militia.” </p>
<p>But the Constitution <a href="https://www.npr.org/2020/10/10/922679215/the-legality-of-private-militias">makes no provision for private militias</a>, like the far-right Wolverine Watchmen, Proud Boys, Michigan Militia and the Oath Keepers, to name just a few. </p>
<p>Private militias are simply groups of like-minded men – members are <a href="https://theconversation.com/lessons-from-embedding-with-the-michigan-militia-5-questions-answered-about-the-group-allegedly-plotting-to-kidnap-a-governor-147876">almost always white males</a> – who subscribe to a sometimes confusing set of beliefs about an avaricious federal government that is hostile to white men and white heritage, and the sanctity of the right to bear arms and private property. They believe that government is under the control of Jews, the United Nations, international banking interests, Leftists, Antifa, Black Lives Matter and so on. There is no evidence of this.</p>
<p>On Oct. 8, the <a href="https://www.washingtonpost.com/national-security/michigan-governor-kidnap-plot/2020/10/08/0032e206-0980-11eb-9be6-cf25fb429f1a_story.html">FBI arrested six men</a>, five of them from Michigan, and <a href="https://www.mlive.com/crime/2020/10/what-we-know-about-the-militia-members-charged-in-kidnapping-plot-against-michigan-governor.html">charged them with conspiring</a> to kidnap Whitmer. Shortly thereafter, <a href="https://www.nytimes.com/2020/10/08/us/gretchen-whitmer-michigan-militia.html">state authorities charged an additional seven men</a> with, <a href="https://apnews.com/article/michigan-checks-and-balances-archive-gretchen-whitmer-da09ca66cd8d5f36722021d3593425ff">according to the Associated Press</a>, “allegedly seeking to storm the Michigan Capitol and seek a "civil war.” Included were the founders and several members of the <a href="https://www.michigan.gov/documents/ag/Affidavit_joe_morrison_and_pete_musico_704633_7.pdf">Wolverine Watchmen</a>. </p>
<p>As <a href="https://static.politico.com/e5/1d/aa6277a242e0af889ec06f7e4a12/michiganaffidavit.pdf">revealed in the FBI affidavit</a> accompanying the federal charges, the six men charged claimed to be defenders of the Bill of Rights. Indeed, some of the men in April had participated in <a href="https://www.freep.com/story/news/local/michigan/2020/10/08/whitmer-kidnap-plot-capitol-gun-rally/5931604002/">rallies in Lansing</a>, the state capital, where armed citizens tried to force their way onto the floor of the State House to protest <a href="https://www.dailykos.com/stories/2020/4/16/1937852/-Fringe-right-closes-down-Michigan-capital-with-gridlock-protest-against-coronavirus-measures">Governor Whitmer’s pandemic shut-down orders</a> as a violation of the Constitution by a “tyrannical” government intent upon sacrificing civil liberties in the name of the COVID-19 fight. </p>
<p>According to the FBI’s affidavit, the conspirators wanted to create “a society that followed the U.S. Bill of Rights and where they could <a href="https://static.politico.com/e5/1d/aa6277a242e0af889ec06f7e4a12/michiganaffidavit.pdf?nname=playbook-pm&nid=0000015a-dd3e-d536-a37b-dd7fd8af0000&nrid=00000156-93f5-d63c-a7d6-93ff85830001&nlid=964328">be self-sufficient</a>.” </p>
<p>Militia members imagine themselves to be “the last true American patriots,” “the modern defenders of the United States Constitution in general and the <a href="http://www.sheriffbrigadesofpenn.com/">Second Amendment in particular.</a>”</p>
<p>Hence, the Bill of Rights – and especially the <a href="https://constitutioncenter.org/interactive-constitution/amendment/amendment-ii">Second Amendment</a>, which establishes the right to bear arms – figure prominently in the alt-constitution. It is no accident that the initial discussions about overthrowing Michigan’s so-called tyrannical governor started at a Second Amendment <a href="https://www.detroitnews.com/story/news/local/michigan/2020/10/08/feds-thwart-militia-plot-kidnap-michigan-gov-gretchen-whitmer/5922301002/">rally in June</a>. </p>
<p>According to most militias, the Second Amendment authorizes their activity and likewise makes them free of legal regulation by the state. In truth, the Second Amendment does nothing to authorize private armed militias. Private armed militias are explicitly <a href="https://www.law.georgetown.edu/icap/our-press-releases/fact-sheets-on-unlawful-militias-for-all-50-states-now-available-from-georgetown-laws-institute-for-constitutional-advocacy-and-protection/">illegal in every state</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/362779/original/file-20201009-21-1gb0mhr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="William Null at a statehouse protest in Michigan." src="https://images.theconversation.com/files/362779/original/file-20201009-21-1gb0mhr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/362779/original/file-20201009-21-1gb0mhr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/362779/original/file-20201009-21-1gb0mhr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/362779/original/file-20201009-21-1gb0mhr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/362779/original/file-20201009-21-1gb0mhr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/362779/original/file-20201009-21-1gb0mhr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/362779/original/file-20201009-21-1gb0mhr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">William Null (right), arrested in the plot to kidnap Whitmer, also participated in this rally on April 30 in the Michigan State Capitol to protest the state government’s pandemic measures.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/william-null-stands-in-the-gallery-of-the-michigan-senate-news-photo/1228979697?adppopup=true">Jeff Kowalsky/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>No restrictions on rights</h2>
<p>Additional <a href="https://rowman.com/ISBN/9781538123683/Fracturing-the-Founding-How-the-Alt-Right-Corrupts-the-Constitution">foundational principles of militia constitutionalism include absolutism</a>. Absolutism, in the militia world, is the idea that fundamental constitutional rights – like freedom of speech, the right to bear arms and the right to own property – cannot be restricted or regulated by the state without a citizen’s consent. </p>
<p>The far right’s reading of the First and Second Amendments – which govern free speech and the right to bear arms, respectively – starts from a simple premise: Both amendments are literal and absolute. They believe that the First Amendment allows them to say anything, anytime, anywhere, to anyone, without consequence or reproach by government or even by other citizens who disagree or take offense at their speech.</p>
<p>Similarly, the alt-right gun advocates hold that the Second Amendment protects their God-given right to own a weapon – any weapon – and that governmental efforts to deny, restrict or even to register their weapons must be unconstitutional. They think the Second Amendment trumps every other provision in the Constitution. </p>
<p>Another key belief among militia members is the principle of constitutional self-help. That’s the belief that citizens, acting on their inherent authority as sovereign free men, are ultimately and finally responsible for enforcing the Constitution – as they understand it. </p>
<p>Demonstrating this way of thinking, the men arrested in Michigan discussed taking Gov. Whitmer to a “secure location” in Wisconsin to stand “trial” for treason <a href="https://www.detroitnews.com/story/news/local/michigan/2020/10/08/feds-thwart-militia-plot-kidnap-michigan-gov-gretchen-whitmer/5922301002/">prior to the Nov. 3 election</a>. According to Barry County, Michigan <a href="https://www.fox17online.com/news/local-news/michigan/man-charged-in-plot-to-kidnap-whitmer-shared-stage-with-west-michigan-sheriff-at-rally">Sheriff Dar Leaf</a> – a member of the militia-friendly Constitutional Sheriffs and Peace Officer Association – the men arrested in Michigan were perhaps not trying to kidnap the governor but were instead simply making a citizen’s arrest. </p>
<p>Leaf, who appeared at a Grand Rapids protest in May of Gov. Whitmer’s stay-at-home order along with two of the alleged kidnappers, <a href="https://rowman.com/ISBN/9781538123683/Fracturing-the-Founding-How-the-Alt-Right-Corrupts-the-Constitution">mistakenly believes</a> that local sheriffs are the highest constitutional authority in the United States, invested with the right to determine which laws support and which laws violate the Constitution. The events in Michigan show how dangerous these mistaken understandings of the Constitution can be.</p>
<h2>There will be more</h2>
<p>The Wolverine Watchmen are not a Second Amendment militia or constitutional patriots in any sense of the word. If they are guilty of the charges brought against them, then they are terrorists. </p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p>
<p>The FBI and Michigan law enforcement shut down the Watchmen before an egregious crime and a terrible human tragedy unfolded. But as I concluded just last year in my book, “there is little reason to think the militia movement will subside soon.”</p>
<p>Unfortunately, I did not account for the possibility that President Trump would encourage militias “<a href="https://apnews.com/article/election-2020-joe-biden-race-and-ethnicity-donald-trump-chris-wallace-0b32339da25fbc9e8b7c7c7066a1db0f">to stand back and stand by</a>,” which seems likely to encourage and embolden groups that already clearly represent a threat. Expect more Michigans. </p>
<p><em>This story incorporates material from <a href="https://theconversation.com/how-the-alt-right-corrupts-the-constitution-113650">a story published on April 15, 2019</a> in The Conversation.</em></p><img src="https://counter.theconversation.com/content/147825/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John E. Finn does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A scholar of militia movements describes the ‘peculiar’ – and erroneous – principles that right-wing militias subscribe to, including believing themselves to be defenders of the Bill of Rights.John E. Finn, Professor Emeritus of Government, Wesleyan UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1465582020-09-22T12:25:03Z2020-09-22T12:25:03Z3 ways a 6-3 Supreme Court would be different<figure><img src="https://images.theconversation.com/files/359070/original/file-20200921-18-4y35pz.jpg?ixlib=rb-1.1.0&rect=0%2C33%2C4493%2C2957&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">People gather outside the U.S. Supreme Court building as news spread of Associate Justice Ruth Bader Ginsburg's Sept. 18 death.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2020-Ginsburg-TheRage/5dfdc36cccf4402d84bb21e432d8bcbe/photo">AP Photo/J. Scott Applewhite</a></span></figcaption></figure><p>If the late Justice Ruth Bader Ginsburg is replaced this year, the Supreme Court will become something the country has not seen since the justices became a dominant force in American cultural life after World War II: a decidedly conservative court.</p>
<p>A court with a 6-3 conservative majority would be a dramatic shift from the court of recent years, which was more closely divided, with Ginsburg as the leader of the liberal wing of four justices and Chief Justice John Roberts as the frequent swing vote. </p>
<p>As a <a href="https://www.palgrave.com/us/book/9783030538507">scholar of the court</a> and the <a href="https://global.oup.com/academic/product/one-nation-two-realities-9780190677176?cc=us&lang=en&">politics of belief</a>, I see three things likely to change in an era of a conservative majority: The court will accept a broader range of controversial cases for consideration; the court’s interpretation of constitutional rights will shift; and the future of rights in the era of a conservative court may be in the hands of local democracy rather than the Supreme Court.</p>
<h2>A broader docket</h2>
<p>The court takes only cases the justices choose to hear. Five votes on the nine-member court make a majority, but <a href="https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1">four is the number required to take a case</a>. </p>
<p>If Roberts does not want to accept a controversial case, it now requires all four of the conservatives – Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas – to accept the case and risk the outcome. </p>
<p>If they are uncertain how Roberts will rule – <a href="https://www.idahostatejournal.com/opinion/columns/the-unpredictable-john-roberts/article_f9ce711c-70b2-541d-9d9c-2ad4777c85c7.html">as many people are</a> – then the conservatives may be not be willing to grant a hearing.</p>
<p>With six conservatives on the court, that would change. More certain of the outcome, the court would likely take up a broader range of divisive cases. These include many <a href="https://www.cnbc.com/2020/05/17/supreme-court-eyes-more-gun-cases-that-could-expand-2nd-amendment.html">gun regulations</a> that have been challenged as a violation of the Second Amendment, and the <a href="https://firstliberty.org/category-media/first-liberty-in-the-news/">brewing conflicts</a> between gay rights and <a href="https://theconversation.com/christianity-at-the-supreme-court-from-majority-power-to-minority-rights-119718">religious rights</a> that the court <a href="https://www.scotusblog.com/case-files/cases/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn">has so far sidestepped</a>. They also include <a href="https://www.americanprogress.org/issues/women/reports/2020/08/27/489786/state-actions-undermining-abortion-rights-2020/">new abortion regulations</a> that states will implement in anticipation of legal challenges and a favorable hearing at the court.</p>
<p>The three liberal justices would no longer be able to insist that a case be heard without participation from at least one of the six conservatives, effectively limiting many controversies from consideration at the high court.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/359076/original/file-20200921-22-1y53eol.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="The U.S. Supreme Court chambers." src="https://images.theconversation.com/files/359076/original/file-20200921-22-1y53eol.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/359076/original/file-20200921-22-1y53eol.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=418&fit=crop&dpr=1 600w, https://images.theconversation.com/files/359076/original/file-20200921-22-1y53eol.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=418&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/359076/original/file-20200921-22-1y53eol.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=418&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/359076/original/file-20200921-22-1y53eol.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=526&fit=crop&dpr=1 754w, https://images.theconversation.com/files/359076/original/file-20200921-22-1y53eol.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=526&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/359076/original/file-20200921-22-1y53eol.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=526&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The seat formerly occupied by the late Ruth Bader Ginsburg is draped in black, as is the bench in front of her.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtGinsburg/732652e99b9a41a39289c27e025b8c21/photo">Fred Schilling/Collection of the Supreme Court of the United States via AP</a></span>
</figcaption>
</figure>
<h2>A rights reformation</h2>
<p>The rise of a 6-3 conservative court would also mean the end of the expansion of rights the court has overseen during the past half-century.</p>
<p>Conservatives believe constitutional rights such as freedom of religion and speech, bearing arms, and limits on police searches are immutable. But they question the expansive claims of rights that have emerged over time, such as privacy rights and reproductive liberty. These also include <a href="https://www.scotusblog.com/case-files/cases/obergefell-v-hodges/">LGBTQ rights</a>, <a href="https://www.scotusblog.com/case-files/cases/shelby-county-v-holder/">voting rights</a>, <a href="https://www.scotusblog.com/case-files/cases/national-federation-of-independent-business-v-sebelius/">health care rights</a>, and any other rights not specifically protected in the text of the Constitution.</p>
<p>The court has grounded several expanded rights, especially the right to privacy, in the 14th Amendment’s <a href="https://www.law.cornell.edu/wex/due_process">due process clause</a>: “…nor shall any state deprive any person of life, liberty, or property, without due process of law.” This sounds like a matter of procedure: The government has to apply the same laws to everyone without arbitrary actions. From the conservative perspective, courts have expanded the meaning of “due process” and “liberty” <a href="https://billofrightsinstitute.org/educate/educator-resources/lessons-plans/landmark-supreme-court-cases-elessons/roe-v-wade-1973/">far beyond their legitimate borders</a>, taking decision-making away from democratic majorities.</p>
<p>Consequently, LGBTQ rights will not expand further. The <a href="https://www.oyez.org/cases/2002/02-102">line of decisions</a> that made Justice Anthony Kennedy famous for his support of gay rights, <a href="https://www.oyez.org/cases/2014/14-556">culminating in marriage equality in 2015</a>, will advance no further.</p>
<p>Cases that seek to outlaw capital punishment under the Eighth Amendment’s ban on “<a href="https://www.law.cornell.edu/constitution/eighth_amendment">cruel and unusual punishments</a>” will also cease to be successful. In 2019 the court ruled that <a href="https://www.scotusblog.com/case-files/cases/bucklew-v-precythe/">excessive pain caused by a rare medical condition</a> was not grounds for halting a death sentence. That execution went forward, and further claims against the constitutionality of the death penalty will not.</p>
<p>Challenges to voting restrictions will likely also fail. This was previewed in the <a href="https://www.scotusblog.com/case-files/cases/husted-v-philip-randolph-institute/">5-4 decision in 2018</a> allowing Ohio to purge voting rolls of infrequent voters. The Bill of Rights <a href="https://theconversation.com/the-right-to-vote-is-not-in-the-constitution-144531">does not protect voting as a clear right</a>, leaving voting regulations to state legislatures. The conservative court will likely allow a broader range of restrictive election regulations, including <a href="https://theconversation.com/stripping-voting-rights-from-felons-is-about-politics-not-punishment-139651">barring felons from voting</a>. It may also limit the census enumeration to citizens, effectively <a href="https://www.whitehouse.gov/presidential-actions/memorandum-excluding-illegal-aliens-apportionment-base-following-2020-census/">reducing the congressional power of states that have large noncitizen immigrant populations</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/359078/original/file-20200921-16-o9a8dp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman waits to receive her ballot." src="https://images.theconversation.com/files/359078/original/file-20200921-16-o9a8dp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/359078/original/file-20200921-16-o9a8dp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/359078/original/file-20200921-16-o9a8dp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/359078/original/file-20200921-16-o9a8dp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/359078/original/file-20200921-16-o9a8dp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/359078/original/file-20200921-16-o9a8dp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/359078/original/file-20200921-16-o9a8dp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Early voting in the November election has already begun; voting rights may be restricted by a more conservative Supreme Court.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2020/0962848422434504af3ba76dccc8b0e3/photo">AP Photo/Andrew Harnik</a></span>
</figcaption>
</figure>
<p><a href="https://theconversation.com/who-is-born-a-us-citizen-127403">Birthright citizenship</a>, which many believe is protected by the 14th Amendment, will likely not be formally recognized by the court. The court has never ruled that anyone born on U.S. soil is <a href="https://constitutioncenter.org/blog/breaking-down-the-birthright-citizenship-debate">automatically a citizen</a>. The closest it came was an 1898 ruling <a href="https://www.law.cornell.edu/supremecourt/text/169/649">recognizing the citizenship of children of legal residents</a>, but the court has been silent on the divisive question of children born of unauthorized residents.</p>
<p>The <a href="https://www.washingtonpost.com/opinions/citizenship-shouldnt-be-a-birthright/2018/07/18/7d0e2998-8912-11e8-85ae-511bc1146b0b_story.html">conservative understanding of the 14th Amendment</a> is that it had no intention of granting birthright citizenship to those who are in the country <a href="https://fedsoc.org/commentary/videos/does-the-fourteenth-amendment-guarantee-birthright-citizenship-policybrief">without legal authorization</a>.</p>
<p>Noncitizens may also find themselves with fewer rights: Many conservatives argue that the <a href="https://law.justia.com/constitution/us/amendment-14/">14th Amendment</a> requires <a href="https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xiv/clauses/704#the-privileges-or-immunities-clause-americas-lost-clause-by-akhil-reed-amar">state governments to abide by the Bill of Rights</a> only when dealing with <a href="https://archive.thinkprogress.org/clarence-thomas-bill-of-rights-doesnt-apply-to-non-citizens-d02757866866/">U.S. citizens</a>. </p>
<p>In any case, individual rights will likely be less important than the government’s efforts to protect national security – whether fighting terrorism, conducting surveillance or dealing with emergencies. Conservatives argue that the public need for security often trumps private claims of rights. This was previewed in <a href="https://www.scotusblog.com/case-files/cases/trump-v-hawaii-3/">Trump v. Hawaii</a> in 2018, when the court upheld the travel ban imposed against several Muslim countries.</p>
<p>Not all rights will be restricted. Those protected by the original Bill of Rights will gain greater protections under a conservative court. Most notably this includes gun rights under the Second Amendment, and <a href="https://theconversation.com/christianity-at-the-supreme-court-from-majority-power-to-minority-rights-119718">religious rights under the First Amendment</a>. </p>
<p>Until recently, the court had viewed religious rights primarily through the <a href="https://www.law.cornell.edu/wex/establishment_clause">establishment clause</a>’s limits on government endorsement of religion. But in the past decade, that has shifted in favor of the <a href="https://www.law.cornell.edu/wex/free_exercise_clause">free exercise clause</a>’s ban on interference with the practice of religion. </p>
<p>The court has upheld claims to <a href="https://www.scotusblog.com/case-files/cases/espinoza-v-montana-department-of-revenue/">religious rights in education</a> and <a href="https://www.scotusblog.com/case-files/cases/our-lady-of-guadalupe-school-v-morrissey-berru/">religious exceptions to anti-discrimination laws</a>. That trend will continue.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/359080/original/file-20200921-14-6bgu54.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man behind a counter waits on a customer." src="https://images.theconversation.com/files/359080/original/file-20200921-14-6bgu54.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/359080/original/file-20200921-14-6bgu54.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/359080/original/file-20200921-14-6bgu54.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/359080/original/file-20200921-14-6bgu54.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/359080/original/file-20200921-14-6bgu54.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/359080/original/file-20200921-14-6bgu54.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/359080/original/file-20200921-14-6bgu54.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Baker Jack Phillips, owner of Masterpiece Cakeshop, manages his Colorado business after the U.S. Supreme Court ruled that he could refuse to make a wedding cake for a same-sex couple because of his religious beliefs.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtWeddingCakeCase/b0915d3e4f9b48f0afc8991849704e4f/photo">AP Photo/David Zalubowski</a></span>
</figcaption>
</figure>
<h2>A return to local democracy</h2>
<p>Perhaps the most important ramification of a 6-3 conservative court is that it will return many policies to local control. </p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p>
<p>For example, overturning Roe v. Wade – which is likely but not certain under a 6-3 court – would leave the legality of abortion up to each state. </p>
<p>This will make state-level elected officials the guardians of individual liberties, shifting power from courts to elections. How citizens and their elected officials respond to this new emphasis is perhaps the most important thing that will determine the influence of a conservative court.</p><img src="https://counter.theconversation.com/content/146558/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Morgan Marietta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A 6-3 conservative court will hear a broader range of controversial cases, shift interpretations of individual rights and put more pressure on local democracy to make policy decisions.Morgan Marietta, Associate Professor of Political Science, UMass LowellLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1445312020-08-26T12:23:24Z2020-08-26T12:23:24ZThe right to vote is not in the Constitution<figure><img src="https://images.theconversation.com/files/354702/original/file-20200825-22-16e40vw.jpg?ixlib=rb-1.1.0&rect=8%2C0%2C5455%2C3645&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Voters in Nashville, Tennessee, faced long lines in March 2020.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/APTOPIXElection2020TennesseePrimary/c380e9918f264d63814aec1c8220650c/photo">AP Photo/Mark Humphrey</a></span></figcaption></figure><p>If you’re looking for the right to vote, you won’t find it in the United States Constitution or the Bill of Rights.</p>
<p>Two of the <a href="https://theconversation.com/the-supreme-court-is-back-in-session-with-new-controversial-cases-that-stand-to-change-many-americans-lives-heres-what-to-expect-190819">most important cases</a> at the Supreme Court this year address voting rights, and both legal controversies focus on the right to vote. But rather than denials of the right to cast a ballot, they address the more subtle forms of manipulation grounded in how votes are counted. Underlying the public discussion of these election law controversies, and many others, is a misunderstanding about the Constitution: the assumption that the right to vote is clearly protected.</p>
<p><a href="https://www.scotusblog.com/case-files/cases/moore-v-harper-2/">Moore v. Harper</a> questions the <a href="https://www.scotusblog.com/2022/06/justices-will-hear-case-that-tests-power-of-state-legislatures-to-set-rules-for-federal-elections/">constitutionality</a> of attempts to rein in <a href="https://theconversation.com/the-independent-state-legislature-doctrine-could-reverse-200-years-of-progress-and-take-power-away-from-the-people-186282">partisan gerrymandering</a>, manipulation of the geographic boundaries of electoral districts to advantage the party controlling the map. <a href="https://www.scotusblog.com/case-files/cases/merrill-v-milligan-2">Merrill v. Milligan</a> deals with <a href="https://theconversation.com/supreme-court-allows-states-to-use-unlawfully-gerrymandered-congressional-maps-in-the-2022-midterm-elections-182407">racial gerrymandering</a>, which changes electoral boundaries to <a href="https://www.democracydocket.com/analysis/three-takeaways-merrill-v-milligan-oral-arguments/">advantage one race over another</a>.</p>
<p>The Bill of Rights recognizes the <a href="https://www.law.cornell.edu/constitution/first_amendment">core rights of citizens in a democracy</a>, including freedom of religion, speech, press and assembly. It then recognizes several insurance policies against an abusive government that would attempt to limit these liberties: <a href="https://www.law.cornell.edu/constitution/second_amendment">weapons</a>; the privacy of <a href="https://www.law.cornell.edu/constitution/third_amendment">houses</a> and <a href="https://www.law.cornell.edu/constitution/fourth_amendment">personal information</a>; <a href="https://www.law.cornell.edu/constitution/fifth_amendment">protections</a> against <a href="https://www.law.cornell.edu/constitution/sixth_amendment">false criminal prosecution</a> or <a href="https://www.law.cornell.edu/constitution/seventh_amendment">repressive civil trials</a>; and <a href="https://www.law.cornell.edu/constitution/eighth_amendment">limits on excessive punishments</a> by the government.</p>
<p>But the framers of the Constitution never mentioned a right to vote. They didn’t forget – they intentionally left it out. To put it most simply, the founders didn’t trust ordinary citizens to endorse the rights of others. </p>
<p>They were creating a radical experiment in self-government paired with the protection of individual rights that are often resented by the majority. As a result, they did not lay out an inherent right to vote because they feared rule by the masses would mean the destruction of – not better protection for – all the other rights the Constitution and Bill of Rights uphold. Instead, they highlighted other core rights over the vote, creating a tension that remains today.</p>
<h2>Relying on the elite to protect minority rights</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/294442/original/file-20190926-51429-1azrxng.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/294442/original/file-20190926-51429-1azrxng.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/294442/original/file-20190926-51429-1azrxng.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=733&fit=crop&dpr=1 600w, https://images.theconversation.com/files/294442/original/file-20190926-51429-1azrxng.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=733&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/294442/original/file-20190926-51429-1azrxng.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=733&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/294442/original/file-20190926-51429-1azrxng.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=921&fit=crop&dpr=1 754w, https://images.theconversation.com/files/294442/original/file-20190926-51429-1azrxng.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=921&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/294442/original/file-20190926-51429-1azrxng.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=921&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">James Madison of Virginia.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:James_Madison(cropped)(c).jpg">White House Historical Association/Wikimedia Commons</a></span>
</figcaption>
</figure>
<p>Many of the rights the founders enumerated protect small groups from the power of the majority – for instance, those who would say or publish unpopular statements, or practice unpopular religions, or hold more property than others. James Madison, a principal architect of the U.S. Constitution and the drafter of the Bill of Rights, was an intellectual and landowner who saw the two as strongly linked. </p>
<p>At the Constitutional Convention in 1787, Madison expressed the prevailing view that “<a href="https://avalon.law.yale.edu/18th_century/debates_807.asp">the freeholders of the country would be the safest depositories of republican liberty</a>,” meaning only people who owned land debt-free, without mortgages, would be able to vote. The Constitution left voting rules to individual states, which had long-standing laws limiting the vote to those freeholders.</p>
<p>In the debates over the ratification of the Constitution, Madison trumpeted a benefit of the new system: the “<a href="https://avalon.law.yale.edu/18th_century/fed63.asp">total exclusion of the people in their collective capacity</a>.” Even as the nation shifted toward broader inclusion in politics, Madison maintained his view that rights were fragile and ordinary people untrustworthy. In his 70s, he opposed the expansion of the franchise to nonlanded citizens when it was considered at Virginia’s Constitutional Convention in 1829, emphasizing that “<a href="https://rotunda.upress.virginia.edu/founders/default.xqy?keys=FOEA-print-02-02-02-1924">the great danger</a> is that the majority may not sufficiently respect the rights of the Minority.” </p>
<p>The founders believed that freedoms and rights would require the protection of an educated elite group of citizens, against an intolerant majority. They understood that protected rights and mass voting could be contradictory.</p>
<p>Scholarship in political science backs up many of the founders’ assessments. One of the field’s clear findings is that elites support the <a href="https://www.cambridge.org/core/journals/american-political-science-review/article/on-the-conceptualization-and-measurement-of-political-tolerance/579D03FF1A6041C6DB3DD6CB1FBC98E1">protection of minority rights</a> far <a href="https://www.jstor.org/stable/193786?seq=1">more than ordinary citizens</a> do. Research has also shown that ordinary Americans are <a href="https://doi.org/10.1080/08913819808443510">remarkably ignorant</a> of <a href="https://yalebooks.yale.edu/book/9780300072754/what-americans-know-about-politics-and-why-it-matters">public policies and politicians</a>, lacking even <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/15/public-ignorance-about-the-constitution/">basic political knowledge</a>. </p>
<h2>Is there a right to vote?</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/353690/original/file-20200819-42861-y7adp2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A painting of Andrew Jackson" src="https://images.theconversation.com/files/353690/original/file-20200819-42861-y7adp2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/353690/original/file-20200819-42861-y7adp2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=728&fit=crop&dpr=1 600w, https://images.theconversation.com/files/353690/original/file-20200819-42861-y7adp2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=728&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/353690/original/file-20200819-42861-y7adp2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=728&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/353690/original/file-20200819-42861-y7adp2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=915&fit=crop&dpr=1 754w, https://images.theconversation.com/files/353690/original/file-20200819-42861-y7adp2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=915&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/353690/original/file-20200819-42861-y7adp2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=915&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Andrew Jackson of Tennessee.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Andrew_jackson_head.jpg">Ralph Eleaser Whiteside Earl/Wikimedia Commons</a></span>
</figcaption>
</figure>
<p>What Americans think of as the right to vote doesn’t reside in the Constitution, but results from broad shifts in American public beliefs during the early 1800s. The new states that entered the union after the original 13 – beginning with Vermont, Kentucky and Tennessee – <a href="https://www.cambridge.org/core/journals/journal-of-economic-history/article/evolution-of-suffrage-institutions-in-the-new-world/F7D4A2F6B807F84514340D1F2F084194">did not limit voting to property owners</a>. Many of the new state constitutions also explicitly recognized voting rights.</p>
<p>As the nation grew, the idea of universal white male suffrage – championed by the <a href="https://www.kqed.org/pop/62290/what-we-can-learn-about-trump-from-his-favorite-president-andrew-jackson">commoner-President</a> Andrew Jackson – became an article of popular faith, if not a constitutional right.</p>
<p>After the Civil War, the <a href="https://www.law.cornell.edu/constitution/amendmentxv">15th Amendment</a>, ratified in 1870, guaranteed that the right to vote would not be denied on account of race: If some white people could vote, so could similarly qualified nonwhite people. But that still didn’t recognize a right to vote – only the right of equal treatment. Similarly, the <a href="https://www.law.cornell.edu/constitution/amendmentxix">19th Amendment</a>, now more than 100 years old, banned voting discrimination on the basis of sex, but did not recognize an inherent right to vote.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/353681/original/file-20200819-42861-yb58zp.jpg?ixlib=rb-1.1.0&rect=0%2C21%2C4741%2C3129&q=45&auto=format&w=1000&fit=clip"><img alt="A man stands at an outdoor voting booth." src="https://images.theconversation.com/files/353681/original/file-20200819-42861-yb58zp.jpg?ixlib=rb-1.1.0&rect=0%2C21%2C4741%2C3129&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/353681/original/file-20200819-42861-yb58zp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/353681/original/file-20200819-42861-yb58zp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/353681/original/file-20200819-42861-yb58zp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/353681/original/file-20200819-42861-yb58zp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/353681/original/file-20200819-42861-yb58zp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/353681/original/file-20200819-42861-yb58zp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A voter casts a ballot at a mobile voting station in California in May 2020.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/USElection2020HouseCaliforniaSpecialElection/aa6802a99b304ff5a07d78a24f4571b8/photo">AP Photo/Marcio Jose Sanchez</a></span>
</figcaption>
</figure>
<h2>Debates about voting rights</h2>
<p>Today, the country remains engaged in a long-running debate about what counts as <a href="https://democracyjournal.org/magazine/28/the-missing-right-a-constitutional-right-to-vote/">voter suppression</a> versus what are <a href="https://www.scotusblog.com/case-files/cases/husted-v-philip-randolph-institute/">legitimate limits or regulations</a> on voting – like requiring voters to provide identification, barring felons from voting or <a href="https://www.scotusblog.com/case-files/cases/husted-v-philip-randolph-institute/">removing infrequent voters from the rolls</a>.</p>
<p>These disputes often invoke an incorrect assumption – that voting is a constitutional right protected from the nation’s birth. The national debate over representation and rights is the product of a long-run movement toward mass voting paired with the long-standing fear of its results.</p>
<p>The nation has evolved from being led by an elitist set of beliefs toward a much more universal and inclusive set of assumptions. But the founders’ fears are still coming true: Levels of support for the rights of <a href="https://www.pewresearch.org/global/2020/02/27/attitudes-toward-democratic-rights-and-institutions/pg_2020-02-27_global-democracy_01-8/">opposing parties</a> or <a href="https://www.pewresearch.org/global/2020/02/27/attitudes-toward-democratic-rights-and-institutions/pg_2020-02-27_global-democracy_01-5/">people of other religions</a> are strikingly weak in the U.S. as well as around the world. Many Americans support <a href="https://www.insidehighered.com/quicktakes/2019/01/30/survey-tepid-support-free-speech-among-students">their own rights</a> to free speech but want to <a href="https://www.bariweiss.com/resignation-letter">suppress</a> the <a href="https://www.zogbyanalytics.com/news/951-the-zogby-poll-a-plurality-of-voters-support-cancel-culture-pluralities-of-republicans-and-very-conservative-voters-also-support-cancel-culture">speech of those</a> with whom <a href="https://www.zogbyanalytics.com/news/951-the-zogby-poll-a-plurality-of-voters-support-cancel-culture-pluralities-of-republicans-and-very-conservative-voters-also-support-cancel-culture">they disagree</a>. Americans may have come to believe in a universal vote, but that value does not come from the Constitution, which saw a different path to the protection of rights.</p>
<p><em>Editor’s note: This is an updated version of an article originally published Aug. 26, 2020.</em></p><img src="https://counter.theconversation.com/content/144531/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Morgan Marietta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The framers of the Constitution never mentioned a right to vote. They didn’t forget. They intentionally left it out.Morgan Marietta, Professor of Political Science, UMass LowellLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1435742020-08-05T12:29:11Z2020-08-05T12:29:11ZDon’t want federal agents in your city or town? Then protect federal property<figure><img src="https://images.theconversation.com/files/351171/original/file-20200804-20-1ma5mmh.jpg?ixlib=rb-1.1.0&rect=27%2C27%2C5934%2C3962&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">During a protest, federal police officials stand inside a fence at the federal courthouse in Portland, Oregon, July 25, 2020. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/federal-police-officials-stand-inside-a-fence-at-the-mark-o-news-photo/1227783256?adppopup=true">(Photo by Ankur Dholakia / AFP via Getty Images</a></span></figcaption></figure><p>I recently visited Portland, Oregon, and saw the destruction around the federal courthouse there – <a href="https://www.youtube.com/watch?v=s1FnOvg62O0">walls defaced with graffiti</a>, fences vandalized, and the remains of garbage fires that had been set. </p>
<p>The vast majority of anti-racism protests over the past two months in the city <a href="https://www.usatoday.com/story/opinion/2020/07/31/portland-protest-crowds-mostly-peaceful-violent-incidents/5546265002/">have reportedly been peaceful</a>, and the damage was due to a small minority of rioters who fought police and federal agents around the building.</p>
<p><a href="https://www.usatoday.com/story/news/nation/2020/07/22/portland-protests-grow-larger-after-trump-sends-feds/5483028002/">President Donald Trump sent in federal agents</a>, claiming Portland was no longer able to maintain order and adequately protect federal property. </p>
<p>The agents’ uninvited presence, and how they purportedly treated protesters, escalated the conflict. The city’s mayor and Oregon’s governor repeatedly asked the agents to leave; <a href="https://theconversation.com/4-lawsuits-that-challenge-trumps-federal-agents-in-portland-test-issues-other-cities-will-likely-face-143331">the state attorney general sued to restrict the operations of federal agents</a>. The federal presence, they said, violated the 10th Amendment, which guarantees a state’s sovereign right to police its citizens. A federal judge in Portland rejected the state’s arguments for lack of standing. </p>
<p>As a three-term mayor and city council member, as well as <a href="https://priceschool.usc.edu/people/frank-zerunyan/">a legal scholar</a>, I know that what’s called “home rule,” or local control, is the most sacred refrain in the vocabulary of every mayor and council member I know. </p>
<p>At the same time, the scene I witnessed at the federal courthouse in Portland is disturbing. <a href="https://www.nytimes.com/2020/07/29/opinion/portland-protests-trump.html?action=click&module=Opinion&pgtype=Homepage">As political interests on both sides fuel the fire of the violence</a>, the American people are left wondering if federal agents will appear in their cities next. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/350951/original/file-20200803-14-1r91zz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Armed federal troops in Little Rock, Arkansas." src="https://images.theconversation.com/files/350951/original/file-20200803-14-1r91zz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/350951/original/file-20200803-14-1r91zz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=478&fit=crop&dpr=1 600w, https://images.theconversation.com/files/350951/original/file-20200803-14-1r91zz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=478&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/350951/original/file-20200803-14-1r91zz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=478&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/350951/original/file-20200803-14-1r91zz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=601&fit=crop&dpr=1 754w, https://images.theconversation.com/files/350951/original/file-20200803-14-1r91zz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=601&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/350951/original/file-20200803-14-1r91zz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=601&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Federal troops were sent by President Dwight Eisenhower to Little Rock, Ark., in 1957 to protect Black students from mob violence when they integrated a city high school.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/federal-battle-troops-stand-with-rifles-ready-to-quell-mob-news-photo/515019922?adppopup=true">Bettmann/Getty</a></span>
</figcaption>
</figure>
<h2>State sovereignty, freedom, independence</h2>
<p>The <a href="https://www.inquirer.com/opinion/commentary/impeachment-constitution-founding-fathers-demagogue-20200101.html">Founders feared an authoritarian central government</a>. <a href="https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2683&context=ulj">They worked to create</a> a functional republic strong enough to enforce national interests but limited enough to assure individual self-determination where citizens lived and worked. </p>
<p>While the concept of the municipality, and therefore home rule or local control, is not described in the United States Constitution, the <a href="https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2683&context=ulj">10th Amendment guarantees such local authority to the people through the states</a>. </p>
<p>The concept of decentralized governance predates the 10th Amendment. Article II of the 1777 <a href="https://www.ourdocuments.gov/doc.php?flash=false&doc=3">Articles of Confederation</a>, the predecessor to the Constitution, grants each state “<a href="https://www.govinfo.gov/content/pkg/SMAN-107/pdf/SMAN-107-pg935.pdf">sovereignty, freedom and independence</a>.” The 10th Amendment is the natural progression of Article II. </p>
<p>The constitution of each state is where “local control” is spelled out in detail, including police powers to help govern public health, safety and welfare. Since 1824, the <a href="https://supreme.justia.com/cases/federal/us/22/1/">U.S. Supreme Court has affirmed the right of states to exercise these police powers</a>, including, in the current context, quarantine laws and health laws of every description. </p>
<p>Over the years, more conservative Supreme Court justices have specifically invoked the principle of reserving police powers to states. Justice William Rehnquist, in striking down a federal law which prohibited bringing a gun into a school zone, said that law threatened to convert federal authority into a “<a href="https://www.law.cornell.edu/supct/html/93-1260.ZO.html">general police power of the sort retained by the states</a>.” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/350953/original/file-20200803-14-12fo4hm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A painting of George Washington and his troops." src="https://images.theconversation.com/files/350953/original/file-20200803-14-12fo4hm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/350953/original/file-20200803-14-12fo4hm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=380&fit=crop&dpr=1 600w, https://images.theconversation.com/files/350953/original/file-20200803-14-12fo4hm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=380&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/350953/original/file-20200803-14-12fo4hm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=380&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/350953/original/file-20200803-14-12fo4hm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=478&fit=crop&dpr=1 754w, https://images.theconversation.com/files/350953/original/file-20200803-14-12fo4hm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=478&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/350953/original/file-20200803-14-12fo4hm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=478&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">George Washington and his troops in Maryland, before their march to suppress the Whiskey Rebellion in western Pennsylvania.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:WhiskeyRebellion.jpg">Wikimedia, from the collection of the Metropolitan Museum of Art</a></span>
</figcaption>
</figure>
<h2>From Whiskey Rebellion to LBJ</h2>
<p>How can the federal police intervention today in American cities be reconciled with the well-established jurisprudence on state sovereignty and the recognition of local police powers? </p>
<p>The question has been especially acute in Portland, <a href="https://www.npr.org/2020/07/19/892826853/like-adding-gasoline-oregon-officials-blast-trump-response-to-portland-protests">where local authorities claimed</a> that there was no need or urgency to use federal police power to quell local protests. </p>
<p>But this claim is a matter of opinion and perhaps a misinterpretation of well-settled law. </p>
<p>The conflict between central national power and local police power finds its roots in the <a href="http://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/whiskey-rebellion/">Whiskey Rebellion of 1794</a>.</p>
<p>Farmers in western Pennsylvania objected to an excise tax imposed on them as an abuse of federal authority. The protests became violent. When the home of the regional tax collector was burned, President George Washington had <a href="https://www.pbs.org/wgbh/americanexperience/features/duel-whiskey-rebellion/">little choice but to stop the violence</a>, which threatened the Union’s stability. </p>
<p>In 1807, President Thomas Jefferson signed into law the <a href="https://theconversation.com/can-the-president-really-order-the-military-to-occupy-us-cities-and-states-139844">Insurrection Act</a>. This act empowers the American president as commander in chief to deploy military troops within the U.S. in particular circumstances. It’s the same act that President Trump threatened to use in American cities.</p>
<p>In 1827, Supreme Court Justice Joseph Story – based on the act and speaking for the majority of the court – vested in the president the authority to use federal power to enforce federal law. </p>
<p><a href="https://supreme.justia.com/cases/federal/us/25/19/">Justice Story wrote</a>, “We are all of opinion that the authority to decide whether the exigency has arisen belongs exclusively to the President, and that his decision is conclusive upon all other persons.” </p>
<p>Subsequent acts of Congress between 1860 and 2001 <a href="https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=3596&context=clevstlrev">gave the president broader powers</a> to decide the conditions <a href="https://www.law.cornell.edu/uscode/text/10/252">justifying the use of state militia by the federal government</a>. </p>
<p>Presidents subsequently used that power to enforce federal law inside states. </p>
<p>In his <a href="https://avalon.law.yale.edu/19th_century/lincoln1.asp">first inaugural address</a>, in 1861, President Abraham Lincoln declared his constitutional mandate to execute federal law faithfully against threats of Southern states withdrawing from the Union. He then sent federal troops to Confederate South Carolina based on the argument that he must enforce federal law and <a href="https://www.smithsonianmag.com/history/fort-sumter-the-civil-war-begins-1018791/">protect Fort Sumter, which was federal property</a>. </p>
<p>In 1894, <a href="https://www.britannica.com/event/Pullman-Strike">Eugene Debs led a national railroad strike of 125,000 workers</a> that ultimately disrupted the U.S. mail system. A federal circuit court forbid the strike. Debs and his colleagues ignored the order. Rioting ensued and <a href="https://www.britannica.com/event/Pullman-Strike/The-injunction">President Grover Cleveland sent federal troops into Illinois</a> over the objections of Governor John Peter Altgeld. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/350954/original/file-20200803-18-w1ooni.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Troops in Chicago during the Pullman Strike." src="https://images.theconversation.com/files/350954/original/file-20200803-18-w1ooni.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/350954/original/file-20200803-18-w1ooni.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=470&fit=crop&dpr=1 600w, https://images.theconversation.com/files/350954/original/file-20200803-18-w1ooni.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=470&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/350954/original/file-20200803-18-w1ooni.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=470&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/350954/original/file-20200803-18-w1ooni.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=591&fit=crop&dpr=1 754w, https://images.theconversation.com/files/350954/original/file-20200803-18-w1ooni.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=591&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/350954/original/file-20200803-18-w1ooni.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=591&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Grover Cleveland sent troops to Illinois in 1894 to quell the Pullman Strike, over the governor’s objections.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/view-of-troops-sitting-outside-their-tents-during-the-news-photo/94287225?adppopup=true">Chicago History Museum/Getty Images</a></span>
</figcaption>
</figure>
<p>By 1895, the Debs case had been appealed to the Supreme Court, challenging the authority of the president to use federal power to enforce federal law in a state. The court concluded that, in the case of a threat to federal law deemed critical by the president, the “<a href="https://constitutionallawreporter.com/2016/03/08/re-debs-using-commerce-clause-uphold-labor-strike-injunction/">army of the nation, and all its militia, are at the service of the nation to compel obedience to its laws</a>.” </p>
<p>In 1954, to enforce the desegregation ruling in Brown v. Board of Education, President Dwight Eisenhower <a href="https://www.history.com/news/little-rock-nine-brown-v-board-eisenhower-101-airborne">federalized the Arkansas National Guard</a> and sent them, along with Army units, to protect nine Black students as they integrated a Little Rock school amid violent opposition by segregationists. </p>
<p>Similarly, President John F. Kennedy <a href="https://www.jfklibrary.org/learn/about-jfk/jfk-in-history/civil-rights-movement">sent federal troops to Mississippi and Alabama</a> to help integrate the Universities of Mississippi and Alabama. </p>
<p>In 1967, during the <a href="https://www.smithsonianmag.com/history/understanding-detroits-1967-upheaval-50-years-later-180964212/">deadly riots between police and residents</a> in Detroit, President Lyndon B. Johnson intervened and sent federal troops to control the unrest. He sent federal troops to Chicago in 1968 in <a href="https://millercenter.org/the-presidency/educational-resources/the-assassination-of-dr-martin-luther-king">response to protests sparked by the assassination of Martin Luther King Jr.</a></p>
<h2>Strong exception</h2>
<p>Previous presidents had a constitutional duty and authority to faithfully execute the laws of the United States, including sending federal officers to protect federal property and enforce federal law. What is the argument against President Trump doing the same? </p>
<p>The lesson here is for <a href="https://www.nytimes.com/2020/07/29/us/protests-portland-federal-withdrawal.html?action=click&module=Top%20Stories&pgtype=Homepage">state and local officials to implement the law and protect federal property</a>. Gov. Kate Brown of Oregon reportedly <a href="https://www.washingtonpost.com/politics/oregon-governor-federal-officials-announce-withdrawal-of-most-federal-agents-but-timelines-differ/2020/07/29/0e0d3aa2-d1d6-11ea-9038-af089b63ac21_story.html">agreed to secure the Federal Courthouse</a> in return for the departure of the federal agents. </p>
<p>President Kennedy, while sending federal troops to Birmingham, Alabama in 1963, <a href="https://www.upi.com/Archives/1963/05/13/JFK-sends-federal-troops-to-bases-near-Birmingham/5418123550584/">said he hoped the citizens of Birmingham themselves</a> would maintain “standards of responsible conduct that will make outside intervention unnecessary.” </p>
<p>[<em>Insight, in your inbox each day.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=insight">You can get it with The Conversation’s email newsletter</a>.]</p>
<p>What is compelling, however, in this conflict between federal and local authority are the words of Justice Story in 1827: “A free people are naturally jealous of the exercise of military power, and the power to call the militia into actual service is certainly felt to be one of no ordinary magnitude. But it is not a power which can be executed without a correspondent responsibility.” </p>
<p>The conduct of federal officials in protecting the civil rights of citizens in Portland under the First, Fourth and Fifth Amendments of the Constitution will remain under scrutiny. </p>
<p>But a president’s right to execute federal law and protect federal property will remain a strong exception to local control and local police power guaranteed by the 10th Amendment.</p><img src="https://counter.theconversation.com/content/143574/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Frank V. Zerunyan does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>No one involved in local government wants to see federal law enforcement agents take over their policing. But a mayor who’s also a legal scholar says there’s history and precedent for it.Frank V. Zerunyan, Professor of the Practice of Governance, University of Southern CaliforniaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1407472020-06-22T14:32:50Z2020-06-22T14:32:50ZLesotho can’t afford incremental changes to its constitution: it needs a complete overhaul<figure><img src="https://images.theconversation.com/files/342974/original/file-20200619-43214-hhxia0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Moeketsi Majoro, Lesotho's new Prime Minister. A minor constitutional amendment enabled his ascension to power. </span> <span class="attribution"><span class="source">GCIS/Flickr</span></span></figcaption></figure><p>Ever since Lesotho, the mountainous southern African constitutional kingdom of about 2.2 million, attained independence from Britain in 1966, its development has been punctuated by all manner of constitutional breakdowns. These have ranged from coups, dictatorships and military rule. </p>
<p>Among the long list of factors that account for the <a href="https://www.tandfonline.com/doi/abs/10.1080/10246029.1995.9627804?journalCode=rasr20">long-running political instability</a> in the country, the flawed <a href="https://www.constituteproject.org/constitution/Lesotho_2011.pdf?lang=en">constitution</a> ranks high.</p>
<p>It is now a matter of common course that successive interventions by the Southern African Development Community, in a bid to bring peace to Lesotho, <a href="https://theconversation.com/south-africas-efforts-to-stabilise-lesotho-have-failed-less-intervention-may-be-more-effective-137499">have failed</a>. One of the main reasons is that the solutions often provided are palliative; they ignore the need for fundamental constitutional reform. </p>
<p>The organisation of Lesotho’s state institutions is fundamentally flawed. Almost every institution is an appendage of the executive: oversight institutions, security agencies, parliament, and the judiciary. There is a very weak balance between key state institutions. </p>
<p>Despite the fact that it was adopted only as recently as 1993, Lesotho’s constitution is fairly outmoded. The country had a chance to adopt a new constitution when it emerged from dictatorship under <a href="https://uca.edu/politicalscience/dadm-project/sub-saharan-africa-region/lesotho-1966-present/">Prime Minister Leabua Jonathan</a> and <a href="https://journals.co.za/content/afrins/20/4/AJA02562804_1157">rule by a military junta</a>, both of which lasted for about twenty years. Instead, what followed was a mere rehash of the 1966 constitution. </p>
<p>As such, the current constitution is cast in the <a href="http://www.cplo.org.za/wp-content/uploads/2015/02/BP-380-South-Africas-Parliamentary-System-May-2015.pdf">classical Westminster conceptions</a> that countries in Africa and elsewhere have long jettisoned. The fundamental structure of the constitution is bad and unsuited for modern-day constitutionalism.</p>
<h2>Different approaches</h2>
<p>While there is some consensus about the need for constitutional changes, there is considerable disagreement in the country about the kind of constitutional changes that are needed, and how extensive they should be. </p>
<p>There are those who say that the changes must be <a href="https://www.gov.ls/documents/expert-report-of-constitutional-reforms/">incremental and phased</a>. The justification for this approach is that there are minor and urgent changes that can be effected with relative ease. These can be carried out within a short space of time, and without a need for huge resources. This include, for example, reducing the powers of the Prime Minister in relation to other branches of government.</p>
<p>This justification is largely based on expediency. The proponents of this approach use the recently adopted <a href="https://www.reuters.com/article/us-lesotho-politics/lesothos-king-assents-to-bill-limiting-pm-thabanes-powers-idUSKBN22J2UD">Ninth Amendment to the constitution</a>
as an example of the success of the incremental approach. The amendment, in the main, prevents a Prime Minister who has lost a vote of no confidence in parliament from calling an early election. It leaves him or her with just one option; to resign. The amendment had an <a href="https://theconversation.com/lesothos-new-leader-faces-enormous-hurdles-ensuring-peace-and-political-stability-139320">immediate application</a> in May 2020 after then Prime Minister Tom Thabane lost the confidence of the National Assembly.</p>
<p>On the other hand, there are those who believe that this success is shorlived; that the country should seize this opportune moment to change the entire constitution. I belong to this group. Lesotho needs a new constitution altogether, and as a matter of urgency. A new constitution is needed that will design new institutions that work in a balanced manner and contribute to the <a href="https://journals.co.za/content/ju_slr/22/1/EJC54773">transformation of the country</a> from its historic <a href="https://www.tandfonline.com/doi/abs/10.1080/10246029.1996.9627810?journalCode=rasr20">shackles of instability</a>, poverty and abuse of fundamental rights.</p>
<h2>What’s wrong</h2>
<p>The fundamental principles on which the current constitution is based are outmoded. It is based, among other things, on a very weak model of separation of powers and <a href="https://brill.com/view/journals/ajls/6/1/article-p49_3.xml">checks and balances</a>. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/342972/original/file-20200619-43229-64gt5e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/342972/original/file-20200619-43229-64gt5e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=805&fit=crop&dpr=1 600w, https://images.theconversation.com/files/342972/original/file-20200619-43229-64gt5e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=805&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/342972/original/file-20200619-43229-64gt5e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=805&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/342972/original/file-20200619-43229-64gt5e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1012&fit=crop&dpr=1 754w, https://images.theconversation.com/files/342972/original/file-20200619-43229-64gt5e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1012&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/342972/original/file-20200619-43229-64gt5e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1012&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">PM Tom Thabane recently stepped down as Lesotho’s PM.</span>
<span class="attribution"><span class="source">EFE-EPA/MIchael Reynolds</span></span>
</figcaption>
</figure>
<p>The executive is virtually untrammelled. It appoints and dismisses, almost single-handedly, the heads of security agencies, heads of oversight institutions, and the heads of the superior courts. It even appoints all chief accounting officers in the civil service. </p>
<p>This kind of institutional design is typical of classical <a href="https://parliament.nt.gov.au/__data/assets/pdf_file/0009/379278/The-Westminster-System.pdf">Westminster constitutions</a>. Most of them are cast on monarchical prerogative. Thus, when political power in Lesotho shifted from the palace to cabinet with the 1993 constitution, <a href="http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-71602020000100011&lng=en&nrm=iso&tlng=en">all the prerogatives of the monarch shifted to the Prime Minister</a>. The Prime Minister, therefore, virtually exercises all the erstwhile prerogative powers of the King.</p>
<p>When power is so concentrated in the hands of one person, abuse is inevitable. Indeed, the office of the Prime Minister has been the fulcrum of instability in Lesotho. The successive incumbents have used other state institutions to suppress dissent and perpetuate administrative malfeasance. The army, the parliament, and the judiciary have been the major instruments in this onslaught.</p>
<p>Another fundamental problem with the constitution is that the country has a bad <a href="https://journals.co.za/content/lesotho/23/1/EJC185615">Bill of Rights</a>. All the rights in it are fraught with claw-back clauses, to the extent that the “fundamental rights” it supposedly enshrines are reduced to an empty list of promises.</p>
<p>For instance, section 18 provides for the freedom from discrimination. But it then provides for a long list of limitations to the right. It even outrageously includes one that says freedom from discrimination does not apply to members of the “disciplined forces” such as members of the army, police and correctional services. It also says that the right does not apply when the basis for the violation is customary law. </p>
<p>Effectively, women whose rights are often <a href="http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812019000100027">suppressed through the use of customary law in Lesotho</a>, can hardly expect meaningful protection of their rights from the Bill of Rights. Most importantly, it excludes social and economic rights. This is despite the fact that Lesotho is trapped in the <a href="https://www.un.org/development/desa/dpad/least-developed-country-category-lesotho.html">least developed countries category</a>.</p>
<p>The importance of having <a href="http://www.saflii.org/za/journals/LDD/1998/9.pdf">enforceable economic rights</a> is that it changes the constitutional orientation of the country entirely, from a liberal constitution to a post-liberal one. A <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/tlj54&div=4&id=&page=">post-liberal </a> constitution - such as neighbouring South Africa’s - embodies the positive obligations of the state to remedy historical realities. It’s imperative for Lesotho to move in this direction. </p>
<h2>Time for boldness</h2>
<p>There is no amount of gradual change that can remedy these fundamental deficiencies. It’s time for an overhaul of the entire constitution. Its deficiencies are both structural and fundamental. </p>
<p>Lesotho would do well to follow the example set by the likes of <a href="https://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf">South Africa</a> and <a href="http://kenyalaw.org/kl/index.php?id=398">Kenya</a>, whose constitutional projects became a success. Instead of just tinkering, they bravely adopted completely new constitutions that marked a clear break with the past. </p>
<p>This is the path that Lesotho needs to take. The incremental approach only adds to the already existing confusion about relations between state institutions in the country. That will only amount to an unsustainable patchwork.</p><img src="https://counter.theconversation.com/content/140747/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hoolo 'Nyane does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The fundamental structure of the current constitution, which is cast in classical Westminster conceptions, is unsuited for modern-day constitutionalism.Hoolo 'Nyane, Head of Department, Public and Environmental Law Department, University of LimpopoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1399912020-06-03T14:45:26Z2020-06-03T14:45:26ZCourt throws South Africa’s lockdown exit strategy into disarray. But it got it wrong<figure><img src="https://images.theconversation.com/files/339529/original/file-20200603-130903-10r366w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's professional surfers have been allowed back in the water. </span> <span class="attribution"><span class="source">Brenton Geach/Gallo Images via Getty Images</span></span></figcaption></figure><p>A South African High Court has declared the government’s lockdown regulations <a href="http://www.saflii.org/za/cases/ZAGPPHC/2020/184.pdf">unconstitutional</a> and, therefore, invalid, driving a coach and horses through its COVID-19 strategy. </p>
<p>Justice Norman Davis found that both the <a href="https://www.gov.za/documents/disaster-management-act-regulations-alert-level-3-during-coronavirus-covid-19-lockdown-28">level 3</a> and <a href="https://www.gov.za/speeches/minister-senzo-mchunu-level-4-risk-adjusted-measures-public-service-response-covid-19-8-may">level 4</a> regulations are “irrational”. The government has <a href="https://www.gov.za/Coronavirus">five COVID-19 alert levels</a>, from level 5 down to level 1, when most normal activity can resume. </p>
<p>After <a href="https://www.gov.za/speeches/president-cyril-ramaphosa-extension-coronavirus-covid-19-lockdown-end-april-9-apr-2020-0000">two months</a> of enduring one of the most stringent lockdowns of any country, there have been signs of restlessness in some communities. As the government added greater detail to the regulations, when the country moved from level 5 to level 3, the credibility of restrictions has been stretched.</p>
<p>But the legal and governance impact of this week’s <a href="http://www.saflii.org/za/cases/ZAGPPHC/2020/184.pdf">judgment</a> is far-reaching. It will heap further unwelcome pressure onto a government that is already under intense pressure as it tries to navigate a complex, wholly unfamiliar and ever-changing decision-making terrain.</p>
<p>The judgment declares that the regulations are invalid. But, with the exception of some, it suspends the declaration of invalidity for 14 days to allow the Minister of Cooperative Governance, Nkosazana Dlamini-Zuma, to</p>
<blockquote>
<p>review, amend and republish the regulations (with) due consideration to the limitation each regulation has on the rights guaranteed in the Bill of Rights contained in the constitution.</p>
</blockquote>
<p>This requires the government to redo the work that it has done in preparing, and then promulgating, the regulations. It also creates a new layer of uncertainty to an already highly fluid situation.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/rule-of-law-has-moved-centre-stage-in-lockdown-what-it-is-and-why-it-matters-139045">Rule of law has moved centre stage in lockdown: what it is and why it matters</a>
</strong>
</em>
</p>
<hr>
<p>During the 14-day period, the newly instituted <a href="https://www.gov.za/documents/disaster-management-act-regulations-alert-level-3-during-coronavirus-covid-19-lockdown-28">level 3 regulations</a>, which reopened a large part of the economy and allowed the sale of alcohol, will remain in force. But, the judgment means that it will not be possible for the government to revert to the old level 4 regulations without a substantial rewrite.</p>
<p>An appeal by government to the Constitutional Court is highly likely, and highly desirable. It is hard to think of a more significant judgment in terms of how many people and how wide a sweep of the economy it affects. </p>
<p>But, in my view, the judgment is unconvincing in many respects and has applied the law incorrectly. </p>
<p>Given the stakes, it is important that it is properly understood and held up for public scrutiny. </p>
<h2>Rationality test</h2>
<p>For a government decision to be held by the court to be “irrational” does not mean that the court finds the decision itself to not be based on logical reasons or clear thinking.</p>
<p>Instead, the rationality test permits the court to review a decision based on an assessment of whether there is a rational connection between the government decision, the process used to reach it, and a legitimate government purpose.</p>
<p>The court notes that the government’s affidavit had argued that the “means justify the end” and, therefore, the regulations pass the rationality test. But, Justice Davis then observed that he wondered aloud during argument whether in fact the government actually intended to apply the Machiavellian notion of the “end justifies the means”.</p>
<p>As the judgment unfolds, it becomes increasingly clear that he takes a dim view of the reasonableness (not rationality) of a good deal of the government’s decision-making, thereby potentially confusing the law.</p>
<p>He finds, for example, that:</p>
<blockquote>
<p>Restricting the right to freedom of movement in order to limit contact with others in order to curtail the risks of spreading the virus is rational, but to restrict the hours of exercise to arbitrarily determined time period is completely irrational.</p>
</blockquote>
<p>The court’s responsibility was to see if there was any rational connection between the decision and the purpose, not whether there was a better means of serving the end goal.</p>
<p>Moreover, it requires the court to examine with great precision each and every step of the decision-making process, and to assess the evidence of how the decision was taken and whether, in an objective sense, the decision was correctly deemed to be in service of the purpose. </p>
<p>Justice Davis’s judgment fails to do so. Although, if government did an inadequate job at placing sufficient evidence of their reasoning and decision-making process, then they are partly at least the architects of their own misfortune.</p>
<p>Regardless, Justice Davis appears to review both sets of regulations and then pick out the ones that displease him most in terms of whether they “make sense” to him or not, and to declare all of them invalid, and not just those that he has sought to apply the rationality test to.</p>
<p>The reference to evidence is scanty. For example, the court observes – without any citation – that millions of South Africans in the informal sector have less daily contact than people attending a funeral, making the “blanket ban” on them “appear to be irrational”.</p>
<h2>Holes in the argument</h2>
<p>The court describes the approach of the government as “a paternalistic approach, rather than a constitutionally justifiable approach”.</p>
<p>Paternalism may be politically or ideologically unattractive to some, especially libertarians. But, it is not, per se, a constitutionally impermissible policy or strategic position for the government to adopt, pandemic crisis or not.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/339534/original/file-20200603-130929-180zbbl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/339534/original/file-20200603-130929-180zbbl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=402&fit=crop&dpr=1 600w, https://images.theconversation.com/files/339534/original/file-20200603-130929-180zbbl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=402&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/339534/original/file-20200603-130929-180zbbl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=402&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/339534/original/file-20200603-130929-180zbbl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=505&fit=crop&dpr=1 754w, https://images.theconversation.com/files/339534/original/file-20200603-130929-180zbbl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=505&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/339534/original/file-20200603-130929-180zbbl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=505&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Waste recyclers queue for food handouts in Johannesburg as the nationwide lockdown left them unable to work.</span>
<span class="attribution"><span class="source">EFE-EPA/Kim Ludbrook</span></span>
</figcaption>
</figure>
<p>The judgment may also be vulnerable to attack for adopting a simplistic approach to the “legitimate government purpose”, which it finds to be solely to contain the spread of the virus. This is a misunderstanding.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/numbers-can-kill-politicians-should-handle-south-africas-coronavirus-data-with-care-136587">Numbers can kill: politicians should handle South Africa's coronavirus data with care</a>
</strong>
</em>
</p>
<hr>
<p>The risk-adjusted strategy that creates the framework of different COVID-19 alert levels, under the <a href="http://www.cogta.gov.za/cgta_2016/wp-content/uploads/2016/06/DISASTER-MANAGEMENT-ACT.pdf">Disaster Management Act 2002</a>, seeks to strike a balance at every stage of the unfolding crisis between competing and overlapping priorities. </p>
<p>This includes the public health priority of building capacity in the health system to absorb an inevitable rise in infections, and the duty of the state to protect lives and livelihoods.</p>
<p>The other puzzling aspect of the judgment relates to its approach to the Bill of Rights and possible limitation of the rights enshrined in it.</p>
<p>Clearly, the lockdown involved the limitation of certain “normal” freedoms. The question is whether the limitations are constitutionally permissible pursuant to the test set out in section 36 of the constitution. This requires that <a href="http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000600002">such limitations be proportional</a>. This means that the government may use only the least restrictive measure for achieving its aim.</p>
<p>But, having found the regulations to be irrational and therefore invalid, the court had no need to consider whether they unjustifiably infringed any right protected in the Bill of Rights. Justice Davis bluntly finds that:</p>
<blockquote>
<p>…in an overwhelming number of instances the Minister (sic) have not demonstrated that the limitation of the Constitutional rights already mentioned, have been justified in the context of section 36 of the Constitution.</p>
</blockquote>
<p>Confusingly, the court order requires the government not to fix the impugned “irrationality” of the regulations, but instead to review them with regard to whether they may infringe the Bill of Rights. </p>
<h2>Rule of law</h2>
<p>Government lawyers, as well as cabinet ministers and officials, will be scratching their heads over this judgment. Not least because the notion of a “rationally justifiable” infringement of constitutional rights is a novel formulation.</p>
<p>Whether the judgment is overturned on appeal or not, what it shows – once again – is that South Africa’s rule of law and its judicial independence are alive and kicking.</p>
<p>At a time of such extreme crisis, courts may be inclined to give the government a little more latitude – such as the decision of the German Supreme Court last month, <a href="https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/DE/2020/bvg20-036.html">in finding</a> that its government has a wide scope for the assessment, evaluation and design of its COVID-19 response. </p>
<p>As South Africa’s Constitutional Court has found in <a href="http://www.saflii.org/za/cases/ZACC/2009/28.html">other cases</a> involving complex public policy and socio-economic rights, the more “polycentric” the governmental decision-making or policy choice, the more careful the court should be not to stray into the executive’s lane. Nothing could be as polycentric as COVID-19. </p>
<p>This is not to say that government should be given a free hand or a blank cheque. A state of national disaster cannot permit lawmaking through the back door, nor enable a slippery slope into autocracy. Far from it. As the High Court judgment shows, government will have to work hard to ensure that it is acting within the law, respecting hard won rights every step of the way.</p><img src="https://counter.theconversation.com/content/139991/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Calland is a Founding Partner in political risk consultancy, The Paternoster Group, and a member of the Advisory Council of the Council for the Advancement of the South African Constitution.</span></em></p>The judgment creates a new layer of uncertainty in an already highly fluid situation and heaps further unwelcome pressure onto government.Richard Calland, Associate Professor in Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1371882020-04-26T06:48:40Z2020-04-26T06:48:40ZCoronavirus casts dark shadow over South Africa’s freedom celebrations<figure><img src="https://images.theconversation.com/files/330380/original/file-20200424-163110-rfwaun.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Marco Longari/GettyImages</span></span></figcaption></figure><p>South Africans “celebrate” <a href="https://www.sahistory.org.za/article/freedom-day-27-april">Freedom Day</a> through gritted teeth, with a wry smile and an acute sense of irony, this year. Many, if not most, will be lamenting the loss of freedom due to the COVID-19 lockdown.</p>
<p>For most professionals, there will be no public holiday, since days slide seamlessly into one another, punctuated only by an endless succession of Zoom appointments and regular bouts of existential crisis and unease about lack of productivity.</p>
<p>For working class South Africans, the angst will cut even deeper, as food will have run out, accompanied in many cases by an even deeper fear about the future. They may be asking themselves, “will I ever work again?”. Both bemoan the ban on alcohol sales. </p>
<p>Twenty-six years ago black South Africans <a href="https://www.sahistory.org.za/article/south-african-general-elections-1994">voted for the first time</a>. Twenty-five years ago, a freshly minted democratic parliament was immersed in the process of <a href="https://www.sahistory.org.za/article/drafting-and-acceptance-constitution">writing a final constitution</a> – one that contains a <a href="https://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-02.pdf">bill of rights</a> that is widely admired by legal scholars and human rights activists across the globe.</p>
<p>It contains 26 rights, many of which have seen active service in the years since the constitution came into effect in early 1997. The <a href="https://www.gov.za/sites/default/files/gcis_document/201409/act108of1996s.pdf">constitution</a>, including the charter of rights enshrined in chapter 2, is inevitably and appropriately the subject of frequent, deep and sometimes bitter contestation. Rights have frequently been claimed by individuals and <a href="https://theconversation.com/how-a-countrys-constitutional-court-can-consolidate-and-deepen-democracy-54184">communities </a> to defend themselves from irrational, unreasonable or otherwise unlawful conduct by both state and private sector entities.</p>
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Read more:
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<p>But these human rights victories may be far from front of mind this particular Freedom Day, in the shadow of the <a href="https://theconversation.com/africa/covid-19">COVID-19 pandemic</a>. Democratic governments throughout the world have been compelled to claim rarely used powers and authority and limit freedoms in response to the threat posed by a deadly virus. </p>
<p>President Cyril Ramaphosa chose to invoke the provisions of the <a href="http://www.cogta.gov.za/cgta_2016/wp-content/uploads/2016/06/DISASTER-MANAGEMENT-ACT.pdf">Disaster Management Act</a> at a relatively early stage, on 15 March. This extended the authority of his government so that it can impose restrictions on, for example, the number of people who may gather in any one place.</p>
<p>Consequently, citizens have had to accept stringent restrictions on their normal civil liberties. South Africa’s lockdown is one of the <a href="https://www.bbc.com/news/world-africa-52125713">“hardest”</a> in the world. Everyone except for “essential workers” is confined to home, permitted out only when buying food or medicine.</p>
<h2>Freedom curtailed</h2>
<p>For South Africans, especially black South Africans old enough to remember the pre-1994 era of <a href="https://www.sahistory.org.za/article/history-apartheid-south-africa">apartheid rule</a>, this must be especially hard to bear. The sight and sound of the police and the army patrolling the streets to enforce the <a href="https://www.gov.za/speeches/president-cyril-ramaphosa-extension-coronavirus-covid-19-lockdown-end-april-9-apr-2020-0000">lockdown regulations</a> must surely stir a painful sense of déjà vu.</p>
<p>The need to have a permit to move from town to town or province to province, or simply to transport produce, is perhaps even more evocative – redolent of JM Coetzee’s novel <a href="https://www.goodreads.com/book/show/6193.Life_and_Times_of_Michael_K"><em>The Life and Times of Michael K</em></a>.</p>
<p>Clearly, the right to freedom of movement enshrined in section 21 of the bill of rights is now severely curtailed.</p>
<p>Several other rights are now, in effect, also suspended or limited. Most obviously, the right to freedom of assembly: congregations present a real risk of increasing transmission of the disease, as President Ramaphosa pointed out in his most recent <a href="http://www.thepresidency.gov.za/speeches/statement-president-cyril-ramaphosa-south-africa%27s-response-coronavirus-pandemic%2C-union-buildings%2C-tshwane">address to the nation</a>.</p>
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<img alt="" src="https://images.theconversation.com/files/330394/original/file-20200424-163126-1w9pboi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/330394/original/file-20200424-163126-1w9pboi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/330394/original/file-20200424-163126-1w9pboi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/330394/original/file-20200424-163126-1w9pboi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/330394/original/file-20200424-163126-1w9pboi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/330394/original/file-20200424-163126-1w9pboi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/330394/original/file-20200424-163126-1w9pboi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">South African President Cyril Ramaphosa has imposed one of the most stringent COVID-19 lockdowns.</span>
<span class="attribution"><span class="source">EFE-EPA/Jerome De Lay</span></span>
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<p>Equally self-evidently, the right to freedom to trade is curtailed. Most businesses and places of work are required to be closed, unless they are providing an essential service. And students are currently denied the right to education, since schools and university campuses are closed.</p>
<p>Other, more subtle, limitations will apply; for example, to the right to privacy. A crisis of this scale and danger may justify greater intrusion into people’s online and cellular telephonic personae. Substantially reduced levels of data protection, ordinarily a matter of very great concern, may well be justified. </p>
<h2>Infringement and protection</h2>
<p>This provides an interesting example of how rights’ infringement may cut both ways. As <a href="https://www.theguardian.com/world/2020/apr/23/test-trace-contain-how-south-korea-flattened-its-coronavirus-curve">The Guardian</a> has reported, digital surveillance has been a crucial part of South Korea’s apparently successful response to the threat of COVID-19.</p>
<p>Clearly, there is an upside; and a legal justification for the infringement of rights. </p>
<p>On one level, there is nothing extraordinary about this. Rights are not absolute. In a constitutional democracy such as South Africa’s they can be lawfully limited, provided the limitation passes the test in section 36 of the constitution. This includes the <a href="http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000600002">principle of proportionality</a>. In essence, this means that the government may only use the least restrictive measure for achieving its aim, the one that causes least damage to protected rights and interests.</p>
<p>Similarly, the regulations issued in a national disaster must comply with the provisions of the bill of rights. A court can declare specific regulations unconstitutional if they impose limitations on rights in a <a href="https://www.dailymaverick.co.za/article/2020-03-23-covid-19-citizen-rights-in-a-time-of-disaster-and-under-a-state-of-emergency/">way not justified by the limitation clause</a>.</p>
<p>The execution of Ramaphosa’s <a href="http://www.thepresidency.gov.za/speeches/statement-president-cyril-ramaphosa-south-africa%27s-response-coronavirus-pandemic%2C-union-buildings%2C-tshwane">five-level “risk-adjusted” exit strategy</a> could well give rise to constitutional litigation if the regulations that give effect to it are either unclear or unfair. </p>
<p>At this point, both the right to equality (and equal treatment) and the right to trade could come into play. </p>
<p>If there is a big surge in COVID-19 infections and illness, then the right to access to health care would be relevant in ensuring that everyone gets the treatment that they need to recover from the virus. </p>
<h2>Right to life</h2>
<p>Above all, perhaps, the bill of rights protects the right to life. As the lockdown <a href="https://www.sowetanlive.co.za/news/south-africa/2020-04-24-lockdown-eases-but-not-for-alcohol/">begins slowly to ease</a>, it will be worth remembering that the constraints on freedom were and remain justifiable on this ground alone.</p>
<p>COVID-19 represents a deadly threat to life and to livelihoods. In this sense, it threatens freedom in the most fundamental fashion. And the government is obliged to protect its citizens, limiting civil liberties in defence of freedom.</p>
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<p>The socio-economic impact of COVID-19 will be deep and could denude many people of their right to human dignity and substantive equality. That impact, in itself, undermines the notion of <a href="https://constitutionallyspeaking.co.za/dcj-moseneke-reflections-on-south-african-constitutional-democracy-transition-and-transformation/">transformative constitutionalism</a> that underpins South Africa’s constitutional settlement and the concept of freedom hinged with equality and human dignity that the Constitution articulates.</p>
<p>South Africans will not be feeling particular free and probably not especially inclined to contemplate more nuanced, philosophical interpretations of freedom as they celebrate Freedom Day, even though the post-COVID world will likely present competing conceptions of liberty. </p>
<p>They are not alone. Throughout the world, billions of people are having to adjust to a “new normal”. For how long, and to what extent, civil liberties should be limited or suspended will depend in large measure on the future trajectory of the coronavirus.</p>
<p>Active vigilance will be required to ensure continued restrictions are fully justified and the pandemic is not used as an excuse to impose authoritarian rule in service of devious and despotic political purposes.</p>
<p>Many times in the country’s modern, democratic era the bill of rights has proved to be more than just a piece of paper. For South Africans, hard-won rights will be vigorously defended, just as the limitations on freedom will be scrutinised every step of the way.</p>
<p>Only the secret and not-so-secret autocrats, extreme-right nationalists and populist authoritarian demagogues will want the bill of rights to fall victim to this pernicious pandemic.</p><img src="https://counter.theconversation.com/content/137188/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Calland is an associate professor in public law at the University of Cape Town, a partner in political risk consultancy The Paternoster Group, a Fellow of the University of Cambridge Institute for Sustainability Leadership and a member of the Advisory Council of the Council for the Advancement of the South African Constitution (CASAC). </span></em></p>For the first time since the end of apartheid in 1994, citizens have had to accept stringent restrictions on their normal civil liberties.Richard Calland, Associate Professor in Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.