Wednesday, 1 September 2010

On the Queen's constitutional powers: replying to Fr Francis Marsden

I received the following post from Fr Francis Marsden, esteemed columnist in The Catholic Times of Britain and a learned theologian and scholar.

I think it is worth re-printing and then answering, partly for the debate and partly for the eminence of its author.

I have answered all other correspondents in the combox section of my last post and those wishing to read those answers can find them there.

Here is what Fr Marsden says regarding the Queen’s Royal Assent and the Abortion Act 1967:

Dear Tribunus,

Maybe she didn't have the power to veto it, but she could have still refused to sign, because signing it was a form of cooperation in grave evil, and a betrayal of the rights of her unborn subjects.

If the Abortion Act would still have gone through without her signature, then she need not have signed. She could have explained that she was not trying to usurp any power which she did not enjoy constitutionally, but that she wasn't prepared to go against her own conscience.

Her signature gave the impression that she supported this law. Any prosecutions under this law or its predecessors would have been in the form: Regina v. N. giving the impression that the Queen supported whatever law was in force.

King Baudouin of the Belgians showed far more integrity when he resigned from the monarchy for a day, rather than play any part in an abominable law.

I don't think your argument holds water. This was one case where a Christian monarch could have registered a protest. Maybe it wouldn't have made a lot of difference at the time, but it would be something forever remembered.

“To veto” is not the same as “not to sign”. You are equating the two.

best wishes
Fr Francis Marsden
Chorley, Lancs

And here is my response:

Dear Father Francis,

Unfortunately, you have either not read my previous post or else you have read it too cursorily and so not understood it.

It is curious how many people, on this subject, think themselves experts in British Constitutional law even when they are not lawyers and have never even studied the subject. Sometimes they even claim to know better than constitutional lawyers.

This is, first, an issue of British Constitutional law since we must first know what powers the Queen has before we can call her immoral for not using them. It is a commonplace of moral theology that one cannot commit sin by failing to exercise a power one does not have.

As a matter of constitutional law, the Queen does not have the right or the power to veto any Bills passed by both Houses of Parliament except, by constitutional convention, in a constitutional crisis.

Constitutional conventions are binding constitutional customs and, as St Thomas himself wrote, “custom has the force of law, abolishes law, and is the interpreter of law” (ST I- II, q. 97, a. 3).

Indeed, our Constitution, being unwritten, is made up almost entirely of conventions. That the Queen has no power meaningfully and genuinely to refuse assent (save in constitutional crisis) is affirmed by the principal authorities on constitutional conventions such as the bible of Parliamentary practice and law, Erskine May on Parliamentary Practice.

I provided other authorities. Did you trouble to read them?

Who are you to say that such authorities are wrong?

If they are right, then the Queen does not have the power that you censure her so severely for not using.

How can you censure someone for not using a power they do not have?

Nevertheless, you do – unfairly, unjustly and unreasonably.

Moreover, if the Queen were to attempt to give herself such a veto power, as you claim she ought, then what she would be doing is seizing power.

To seize power is a form of coup d’etat and is immoral.

You know – or ought to know – that one cannot do evil that good may come of it, no matter how great the good. St Paul says so in Rom 3:8. The end does not justify the means.

You thus chastise and rebuke the Queen for not doing evil that good may come. In short, you rebuke the Queen for not sinning.

That is the reductio ad absurdam of your argument.

You are thus quite wrong – as a matter of constitutional law – to say:

- She co-operated in a grave evil.

No she did not.

On the contrary, she played no morally significant part. If she had tried to play a morally significant part, by trying to veto the Bill, she would have sinned by her illegal and immoral attempted seizure of power.

- She went against her own conscience.

No, she did not.

She would have acted against her conscience if she had tried, illegally, to seize power to veto the Bill, which power she does not have any right to.

- She could have explained that she was not trying to usurp any power which she did not enjoy constitutionally.

No, she could not.

In trying to exercise a power to refuse assent, she would be trying to seize and exercise a power that she did not have. That would not have stopped the Bill but would certainly have created a constitutional crisis through an attempted, illegal seizure of power, disturbing the whole constitution for no good purpose and doing so by an immoral and illegal seizure of power.

- Her notional assent gave the impression that she supported this law.

No, it did not.

Her assent is a formality save in a constitutional crisis and thus is not a moral act. No-one can rightly blame the Queen for the Abortion Act. The blame lies with the democratically elected Members of Parliament who voted for the Bill and with those who elected them.

- Any prosecutions under this law or its predecessors give the impression that the Queen supported whatever law was in force.

No, it does not.

Prosecutions in the USA are styled “The People v X”.

Does that mean that all the people necessarily approve the law by which X is prosecuted? No, of course not.

Likewise the Queen does not have to approve, personally, all prosecutions that are styled “Regina v X” or “The Queen v X”.

This is merely a device of constitutional law similar to other devices cited by Blackstone in his Commentaries such as e.g. the Queen never dies, the Queen can do no wrong, the Queen is legally ubiquitous and so on. These are constitutional devices and refer to the Crown in its office and not in the personal capacity of the person holding the office.

I recommend reading Newman’s wonderful satire of a Russian revolutionary who read Blackstone and failed to understand it. It is in the first chapter of his Present Position of Catholics.

You are in danger of making the same comic mistake as the Russian in Newman’s satire.

- King Baudouin of the Belgians showed more integrity.

No, he did not.

He did what he was permitted under the Belgian Constitution. The Queen is not so permitted and does not have the same power. King Baudouin himself recognised this. There is no “integrity” in immorally seizing power.

- This was one case where a Christian monarch could have registered a protest.

No, it is not.

This would certainly not have been, as you term it, a mere “protest” but rather an attempted seizure of power which is both illegal and immoral because one may not do evil that good may come.

- “To veto” is not the same as “not to sign”.

No, that is wrong.

As a matter of constitutional law, to attempt to refuse assent would be the same as attempting to veto. Even if the attempted veto were non-effective in stopping the Bill, it would nevertheless be very effective in creating the very sort of constitutional crisis which the veto power of the Crown is designed to prevent.

It is ridiculous to rebuke someone for not exercising a power to create the very evil the power is designed to prevent.

You might as well blame the Pope for not attempting to start a Crusade against Afghanistan’s Taliban.

He has no practical power so to do and if he were to try he would be doing grave evil in trying to usurp a power he no longer, in practical terms, has.

It would be sin to rebuke him for not so doing, just as it is a sin to rebuke the Queen for not usurping to herself a power that the Crown no longer has.

Thus, you can see, my dear Father, that it is your argument which does not hold water.

I hope you will pray for the Queen and pray for reparation for any time that you have unjustly attacked her good name in connection with the Abortion Act or any other legislation which you might have wrongly blamed her for not vetoing.

Put the blame where it belongs: with those members of Parliament who voted in such legislation and those who voted for them.

Do not blame the innocent.

Best wishes,

St Thomas Aquinas was a great promoter of constitutional convention and custom and wrote that "custom hath the force of law, abolishes law and is the interpreter of law".



Firmus et Rusticus said...

Esteemed Tribunus,

I'm afraid I cannot add any further constitutional insight, much less of a country that is not my own, to this debate, so I will not try to. However, pray consider this thought:

1. This debate has pretty much been the same in Spain, where the present constitutionally-proclaimed king is even more tightly bound by the law. His lawful duty has certainly been to sign, as he did. He certainly is not responsible for legislation, taking no part in the legislative process. The final ratification of his signature is not a personal choice, but a duty of his office. Even the Church has recognized that his responsibility is not the same as that of members of parliament, but rather "subject to particular examination".


2. The fact that the Church has not yet defined his concrete responsibility does not mean he is exempt from any. In a state where law is ethically unacceptable (way past so-called "private morals", as is the case with abortion), and a king's actions are legally impeccable, can the king not be in danger of ethical wrong? Forgive this weak sillogism, let me rephrase: a system that is so flawed in its core that it allows laws such as abortion to be passed, is it legitimate? A system whose very nature is open to the potential, and sometimes real, possibility of passing laws most contrary to natural and divine law (such as liberal democracy, where laws know no limit beyond the "national will" expressed through parliament and constitution), can it not be considered a "structure of sin"? And finally, willful cooperation of a monarch in such structures, is it not an indication that such a monarchy has abandoned its true meaning as expressed by the venerable tradition of the Church?

It is stupid to put all (or even most of) the blame of abortionist legislation on a constitutional monarch. But it is also insufficient to place it on politicians: the blame must trace back to a state that does not recognize natural law as a limit to its potential power. The mere possibility of such unethical legislation is a sign of its lack of legitimacy, since as we see today public opinions change and a possibility can become a reality just as easily. Abortion was just as legally possible in 1850, though certainly not socially accepted. Criticism to a monarch (of whatever country) must be circumscribed to that argument: it is criticized as a willing part of such a "structure of sin". It is mainly an institutional criticism, but also a personal one insofar as the person keeps serving in their office.

This is a particularly sensitive area to denounce, since there is much good that can come of preserving a monarchy, however diminished as are modern ones. Nevertheless, in defense of true monarchy we must not falter in our criticism, precisely because a monarchy can be the most effective institution to constitutionally limit the immoral "sovereignty of will", and because many still perceive it is still doing that.

Your sincerely, in Christ.

Thomas More said...

Is not the passage of the abortion act a constitutional crisis allowing for the exceptional veto power? Parliment effectively voted to deny a fundamental human right, life, to unborn Brits.

Tribunus said...

Thanks Firmus et Rusticus,

1. Agreed

2. I am no apologist for King Juan Carlos of Spain but your argument is based upon a mere wish that the few remaining kings would simply act like dictators and overrule their countries’ constitution in the name of natural law.

That is as illogical as committing murder against a murderer or burglary against a burglar or robbery against a robber.

You cannot do evil that good may come of it. The ends do not justify the means.

Just because the politicians are doing evil that does not give the King the right to do so.

And please be fully certain that to overthrow the Constitution is an evil and immoral act, unless one is above it.

Only a superior can do that and neither the Spanish king nor the British queen are superior to the Constitution. They are both constituent parts of the Constitution.

In former times, Catholic states recognised the spiritual power of the Pope to set aside constitutional provisions or monarchs that legislated against conscience and morality because those Catholic Constitutions recognised that the spiritual power is higher than the temporal.

But now they do not. And kings were never above their constitutions just as popes are not above the constitution of the Church.

Consider the matter practically.

So, Juan Carlos decides to seize temporary powers, contrary to the law and the Constitution, and overthrow the abortion law.

He would be king for about 4 seconds before a republic was declared or a much worse king put in his place.

Do try to maintain a sense of reality here.

The end never justifies the means and if you allow immoral means you will always end with more, not less, evil.

Take a leaf out of God’s book.

He doesn’t like this abortion horror any more than you or I do.

But he allows it for a greater good, namely the free will of men. He will punish in due course both here and hereafter.

But for the present he does not intervene to destroy the moral law-breakers.

If God acts thus, so must you.

Kings are not dictators, despite the poppycock that Yankee republican ignoramuses come out with. They are bound by law. And if they seize power and break the law then they are doing wrong.

So don’t expect them to do so!

Tribunus said...

Dear Thomas More,

I've answered your objection more times than I've had hot dinners.

Please go back and read what I wrote before putting pen to paper.

The short answer is no because only a narrowly defined "crisis" permits a veto, and that means one that threatens to overthrow the whole Constitution not just the individual rights of some under it.

Of course neither you nor I are satisifed with that.

But that's not the point.

It is the law.

And we cannot pretend that it is isn't the law just because we don't like it.

Neither is a law limiting the Queen's powers instrinsically immoral and so that law is not a law which can be ignored as being immoral.

So - it must be obeyed.

The Queen thus simply does not have the power that you claim for her.

Firmus et Rusticus said...
This comment has been removed by the author.
Firmus et Rusticus said...

Oh, I was hardly advocating a coup by kings, much less that the end justifies the means. In fact the contrary: the end of having a monarch does not justify making increasing compromises and concessions (not just political, but moral).

Returning to the practical:
1. A king is (has always been, agreed) bound by law. By a constitution, by a framework.
2. He or she also plays an important role within that framework, his work in a way promotes and advances that framework as a whole.
3. Suppose that law becomes ethically or morally unacceptable. It still binds the king, but it does not oblige him to cooperate with the framework that produces it. Law can prohibit me from committing crimes, but it cannot force me to be a policeman. A king can act according to conscience (assuming its there) and effectively combat wrong (assuming he wants to) by resigning his constitutional role. I'm not necessarily talking about a complex abdication or legal loophole: I'm taking about simply leaving. Of course, nobody would likely want to do that, for now I'm speaking within the realm of possibility, not political wisdom.

Surely, if such a thing took place there would be a republic the next day. We don't live in countries so hungry for constitutional monarchy that they would do anything to keep the king from leaving. We monarchists (monarchy in abstract) tend, therefore, to hold on to whatever we can to keep kings from being kicked out, often forgetting the price. That attitude is mistaken, from two perspectives:

1. Realistically speaking, the history of the past two centuries (perhaps three for the U.K.) proves that a very little initial compromise leads to greater demands that eventually are self-destructive. Please don't interpret this as praise to despotism or intransigence: where one doesn't make concessions to the practices of the times, revolution is sure to follow (the whole reform vs. revolution argument); but where one makes compromise with principles, revolution follows as well (XIXth century constitutional or "chartist" monarchies). So practically speaking, it is not wise.

Firmus et Rusticus said...

2. It is just wrong. You cannot sacrifice your conscience to the law. A man shouldn't, neither a king. Is it unreasonable that one should have a sense of duty towards good, not just towards political convenience and lesser evils? Isn't it one of the greatest benefits of hereditary monarchy the independence the king is afforded to act with justice and disinterest? Sure, if a king today does not act with political savvy there will be a republic come morning; but a republic is NO WORSE than a monarchy that puts self-survival before duty to good. I believe that monarchy has been most successful when a king, just as any man who has followed the Lord's advice, has sought first the Kingdom of God and His justice, and has had the rest given to him consequently.

But perhaps I am straying, in your reply you did not defend, I believe, the supremacy of the king over good, but rather that of the constitution over the king. I'll respond to that keeping in mind continental monarchies (even though I think the case may apply to the U.K., I am aware of its particularity, and even more so of my ignorance):

You have said that to overthrow the constitution one need be above it, and certainly the king is not. Who is? The people. Or better, sovereignty, the principle of sovereignty. Sovereignty, in modern political theory, gives title to its recipient to act as he pleases (let's forget that the king is usually called "sovereign", since today it is exclusively a relic of the past). It seems rather natural that the sovereign is the people, since they are the ones who are to live in a society, or nation, and thus "give themselves" law (of course this presupposes the existence of a nation before that of law, which is a fallacy, but is nevertheless the necessary hypothesis to modern political theory). But this is just in theory: the real recipient of sovereignty (that is, the do-whatever-we-please factor) is parliament, or whatever name the assembly has. It has not just actual power, but theoretical power as well: the people are only sovereign insofar as they "structure themselves" into a parliament, as defined by the rules of liberal democracy. And of course, it is parliament itself that defines those rules.

Why "as defined by rules of liberal democracy"? There have always been parliaments, but they were fundamentally different: they were strictly representatives of popular or sectorial interests against an independent sovereign; that is, they limited sovereign power. The model of parliament after the French Revolution (again, I am unaware if this may apply to the U.K. before that time) takes sovereignty for itself, thus eliminating any limits of it that may come from outside: sovereignty is more "absolute" than ever, its only limits are those parliament gives itself.

Firmus et Rusticus said...

Whats the point of my mentioning all this? Quite simply, the "sovereign will" that are modern constitutions came to be by an act of violence against legality, a coup d'état in their own right. The real dilemma is not abortion or other immoral measures, that is just a consequence of the real problem: accepting a political theory that vests absolute power on parliament.

As you said, Catholic constitutions once recognized spiritual power over temporal power giving the Pope certain powers to set aside immoral constitutional provisions. These papal prerogatives were just a given legal instrument (certainly not the only one conceivable) that reflected a greater truth: positive law cannot be in contradiction with natural law. If constitutions today do not recognize this limit in natural law, it does not change the fact that they are indeed limited by it. That is why we talk of immoral or unethical legislation: thinking "legally", there can be no such thing. Natural law's primacy is not a matter of convenience, of agreement, it is a fundamental truth of political societies, a consequence of man's social nature.

So, am I advocating a coup? By Juan Carlos? Certainly not: he has no claim to legitimacy (though that is another story) and therefore holds office by no other title than the constitution of 1978; he is not a king, but something of an "ambassador emeritus". Resigning his office would have been an act of personal coherence (assuming he does not in fact advocate immoral legislation), but nothing else.

What am I advocating? A system where natural law acts as limit to man's legislation. It was there before the French Revolution, its not a utopia. It certainly was not a perfect society, as anything human, but its fundamental political principles (regardless of their practice) were correct. Today, what's stopping natural law from being an effective limit? Unlimited sovereign will. Who exercises it? Parliament, the national assembly. If we want change, what's the first way to go about it? From within, from our given institutions. Which? Our "representatives", in parliament. In front of who do they represent us? Parliament.


Anonymous said...

As you say, those who are not expert in British law should not presume to speak on it.
But those ignorant of basic principles of moral theology should also not presume to justify cooperation in evil.

In any case, these puppet monarchs are so useless. It is hard to understand how civilized people tolerate them.

Tribunus said...

Having a monarch is not an end in itself. It is already a means to an end i.e. to good government.
Morality encompasses the making of certain compromises and concessions and morality is not some stark, impractical shibboleth but a science based upon reason and logic.

Kingship is not a coat that one can simply put on and take off as one pleases with no other moral effect. On the other hand, it does not necessarily mean a republic the next day. In 1936 the King abdicated and yet the monarchy continued.
I agree that we need a system where natural law acts as limit to man's legislation.

However, it is still the case that Queen Elizabeth II did not have the power to veto the Abortion Bill and that was my prime point, here.

Tribunus said...

Moreover, Anonymous, those who have nothing useful to say - like, in this case, you - should pipe down.

If you knew anything about moral principles you'd advance them.

But seemingly you haven't. So you don't.

If you think your approach is civilised then I fear you have no idea what civilisation is.