Russia, Trump, Mueller, and the 'Wilderness of Mirrors'

On the 9th of May, 2017, the US President, Donald Trump, dismissed the then FBI Director, James Comey. At the time, there were allegations that Trump’s firing of Comey was related to the FBI’s ongoing investigation of the Trump 2016 campaign and allegations of its links with Russian persons and the Russian state. At the same time, there was, also, a memorandum by the US Deputy Attorney General, Rod J. Rosenstein, recommending Comey’s termination. Trump’s own firing of Comey noted that Comey had told Trump privately that he was not under investigation, something that Comey would later admit was correct.

On the 17th of May, 2017, Mr Rosenstein appointed Robert Swan Mueller III, the former FBI Director, to thoroughly investigate the Russian Government’s effort to interfere in the United States’ 2016 election. The record of appointment can be found here.

It is important to note, here, that:

(A) the Mueller probe was, in its origins, a counter-intelligence investigation that contained a mandate for criminal prosecutions, where necessary and appropriate. A counter-intelligence investigation is necessarily protective – it is focused on identifying and assessing threats to national security, not merely investigating those criminal matters that may be prosecutable; and

(B) in the United States, the counter-intelligence and national criminal investigation functions are combined in the one agency: the Federal Bureau of Investigation. In other Western countries, in particular in the British imperial/Commonwealth nations, the counter-intelligence and national criminal investigation missions are often discharged by separate agencies (eg in the UK, MI5 and the National Crime Agency, in Australia, ASIO and the Australian Federal Police, and so on.) There is much sense in separating the functions, if only because these agencies have very different cultures and the sorts of people who excel at counter-intelligence work are, very often, the sort of eccentrics and social misfits who would, rightly, never be accepted as agents and officers of any respectable law enforcement body.

Keeping both (A) and (B) in mind, we come to now, late March 2019, and Mr Mueller has submitted his report as Special Counsel to the US Attorney-General, William Barr. The Mueller Report's contents remain undisclosed and, one expects, will require significant declassification and/or redaction before any part of it can properly be released.

On the 24th of March 2019, Mr Barr, as the Attorney General, supplied a synopsis of the Mueller report to Congressional leaders (see here), and its two key findings:

Firstly, Mueller cleared Trump and his campaign of conspiring or coordinating (a distinction without any real difference) with the Russian Government. While the Special Counsel did charge a number of Russian military officers with cyber/computer hacking for the purposes of influencing the US 2016 election, the Mueller investigation did not find that Trump or his campaign were party to the Russian effort – and “despite multiple offers from Russian-affiliated individuals to assist the Trump campaign”. At the same time, while the Mueller probe may not have found evidence that established or supported any conspiracy, it is likely the counter-intelligence aspect of the Mueller probe has commenced or followed leads in respect of Russian and other foreign influences that will probably be run-down over the next few years if not decades. Mueller, as a former FBI director, was uniquely well-suited to oversee such a probe.

Secondly, Mueller left the issue of whether President Trump’s behaviour evidenced “obstruction-of-justice concerns” at large. It is unclear what the alleged obstruction was: was it Trump's intercession for Lieutenant General Michael Flynn? Was it Trump firing former FBI Director James Comey? Or was it Trump attacking the Mueller probe? Or something else? Was it Trump denouncing the probe as a “witch hunt”? (The last of which may be unwise and against legal advice, but is arguably something Trump is as free to do as anyone else). So, the obstruction issue became one for the Attorney General to determine. Thus it came to be that both the Attorney General Barr, and the Deputy Attorney General Rosenstein, “....concluded that the evidence developed during the Special Counsel's investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.” More than anything else, Rosenstein’s concurrence in this conclusion is critical, here. Rosenstein had both (A) advised Trump to fire the former FBI director James Comey and (B) had initiated and supervised the Mueller probe. Rosenstein would be the one US Government official who would be charged with pursuing, as well as the key government witness to, any allegation of obstruction. While there is no gainsaying the idiocies that any Congress will engage in, the legal question of obstruction was negatived by Rosenstein’s express concurrence. [An interesting question, also, arises here, as to whether Mueller could have formed an independent view on the facts. Mueller was interviewed by Trump for the position of FBI director on 16 May 2017. It seems highly likely that Mueller would, at that interview, have become acquainted with Trump's views on Comey and why Comey was fired. It is also highly likely that Mueller has his own views of Comey, which may well have changed during the Special Counsel probe. Another question for another day.]

As a matter of full disclosure, you can find all my comments on the Mueller probe here and you will note, and I take no satisfaction in saying this, that, as early as the 15th of June 2017, it was clear, on the evidence, that Trump would be cleared. Moreover, as a matter of common sense given the colandar-like US system, does anyone seriously believe that if there was evidence of Trump and his circle conspiring with the Russians, it would not have leaked long ago? Donald Trump could barely coordinate with his own presidential campaign-why would any sentient being think Trump would be able to conspire with the Kremlin and keep it a secret? This is not to say that Trump's campaign was not a magnet for grifters, drifters, people other GOP campaigns would not hire, as well as those with suspicious pasts, including Russian associations - Trump's campaign had all of those sorts of characters. But the idea that Trump, of all people, with his penchant for bombast and inability to keep a secret, would be the Kremlin's idea of a useful dupe, is rather at odds with the history of Russian subversion.

This all said, though, in the best traditions of the “wilderness of mirrors” that is the arena of intelligence and counter-intelligence work, as well as the slow drudge of a criminal investigation and prosecution, the question inevitably arises, ‘what did we learn’? In answer to this question, I say the following.

Firstly - and this did not require anyone of the stature of Robert Mueller to investigate - American politics is open to a degree of corruption and influence by foreign moneyed interests and foreign intelligence services (often the same thing in many countries) on a scale as great as, if not much worse than, any other first world country. The American republic, while it has so much to admire in its design and founding, is, in 2019, possessed of a political class that Russians, like the Chinese, Ukrainians, and a host of others, know is open to corruption, intelligence dangles, and compromise/kompromat. (Even Australia, felt it needed to donate money to the Clinton Foundation.) The Paul Manaforts and Podesta brothers and others are but archetypes of a notorious American cohort of political vagabonds. One hopes that the United States has now learned a valuable if painful lesson on why the swamps of professional politics are best drained permanently. One doubts, however, that anything will be done by a political establishment that is happy to be at least rented, if not bought. One foresees, instead, that the Russians, Chinese, and other malefactors, will simply see the Mueller probe as deterring them from doing nothing but seeking a smarter variety of traitor and useful idiot to now suborn in the future, and, especially, for 2020.

In the Russian case, their historic practice, going back to the Tsarist Okhrana, of spreading disinformation, fake documents, sowing domestic chaos and distrust, means that the Kremlin’s appetite for destruction has only been whetted by the hysteria and insanity of America’s political class and media over the past three years. The clearly desired Russian effect of a divided and suspicious America was achieved beyond Putin's wildest dreams. While I have long counselled a realistic and historically informed approach to the Russian threat, given that the cold war is now long over, anyone thinking the Russians, or the Chinese and Iranians, have not seen here a real vulnerability for exploiting America’s domestic divisions, at very little real cost, is deluding themself. Unless and until the United States takes seriously its duty to its own people, to protect them against foreign influences and the rampant political and lobbying corruption that enables its spread, the future of American domestic politics is what we have seen recently. And every US ally should be extraordinarily concerned by the sight of this great and powerful republic whose political class is seemingly unable to protect America from meddling by malevolent foreign adversaries.

The case of the Steele Dossier and how this tract found its way into the FBI's hands is endlessly fascinating and disturbing. This anti-Trump dossier, full of the most sordid and lurid details of Trump's alleged activities, was compiled by the former British intelligence operative Christopher Steele, relying on local Russian sources, for the benefit of anti-Trump forces in US politics. The fact that Steele had not been in Russia since the 1990s, and Steele had no way to verify his alleged sources and whether any part of the dossier was or was not true, was neither here nor there. For a certain segment of US politics and media, the fact that the Steele Dossier was anti-Trump, even if it was otherwise the stuff of fabulism, was enough-they 'wanted to believe'. The fact that an apparently experienced Western intelligence operative like Steele could be so naive as to not see how ripe a target he was for Russian disinformation is simply bewildering. Even now, the Steele Dossier remains a still unverified product of opposition research yet, as set out below, it found its way into the FBI's hands and was briefed to Trump by Comey in early 2017. The question of whether the (known to be unverified and scandalous) Steele Dossier formed any part of the evidentiary foundation for a surveillance warrant obtained from the US' FISA courts is a matter that remains at large, and, if proved so, would be a matter that would see any lawyer in any other common law jurisdiction, seeking to move the court ex parte on the basis of Steele's dubious chronicle, disbarred or struck off. The Steele Dossier was the recycling of political skulduggery into an allegation of facts that would poison US politics from 2016 on and was a disinformation success beyond the Kremlin's wildest dreams.

Secondly, and further to the above, something clearly went badly wrong with the US Intelligence community in 2015-2016 and, most especially, with the FBI in the Comey era. The conduct of the former Director of National Intelligence, James Clapper, and the former CIA Director, John Brennan, was nothing short of deplorable and, in Brennan's case, disgraceful in retirement. However, something was badly awry with Comey and the FBI. It is not just that James Comey was weak with respect to baulking at prosecuting Hillary Clinton, and a pathetic presence online. He seems to have been, at best, the FBI’s invisible man. It is not just that so much of the Comey-era FBI leadership has been fired or terminated for cause, or referred for criminal prosecution. If it was well known to the FBI in 2015-2016, such that it then commenced the Crossfire Hurricane investigation, that the Russians were seeking to insert themselves or their agents into the orbit of the Trump campaign (and, given Russian enrichment of the Clintons over the years, one cannot be sure it was only the Trump campaign), the FBI had an undeniable and positive duty to defensively brief Trump and his senior aides. There is, simply, no excuse for the FBI leadership’s failure to warn Trump and his campaign of what the FBI leadership then already knew were destabilising Russian machinations. It is difficult to think of another first world country where the national counter-intelligence agency would not have acted to protect a threat to a national political campaign. It is difficult to think of any serious counter-intelligence professional in history who would have behaved as Comey and his coterie did in 2015-2016. In the UK, for example, the security services are a not uncommon if subtle advisor to political leaders, especially where dubious backbenchers and mainchancers are associating or have associated with the wrong sorts of ‘Johnny Foreigner’. In Australia, ASIO will make public statements to warn of foreign influence, especially the Chinese in recent years. The French, also, are particularly zealous at protecting their domestic politics from foreign intrigues. Somehow the FBI of the Comey era went missing in action as a concerted - if not overly large, expensive, or sophisticated - Russian campaign to sow chaos in an election year went into top gear. The FBI’s handling of the notorious Steele dossier, almost certainly the product of current and former Russian intelligence operatives, where it was taken seriously enough for Comey to brief the US President-elect in January 2017, is a matter for another day but suggests an FBI with major problems.

(One suspects that Clapper and Comey briefed Trump on the Steele Dossier to both inform the incoming president but, also, one infers, as a means of suggesting to Trump this duo had 'one over' on Trump...little did either realise that Trump's careeer spent in property development prepared him unusually well for dealing with stand-over men and how they are best 'fired' when attempting to extort.)

Thirdly, on any view, the US news media has utterly disgraced itself at every step of the Mueller probe. It was clear to anyone who could read plain English that Mueller’s probe was intended as a counter-intelligence probe into Russian activities in the 2016 election, not a mission to remove Trump from office. The all but obsessive belief in the US media, with all too few honourable exceptions, that Mueller was, indeed, the means by which their bête noire Trump would leave office in disgrace if not under actual arrest, has destroyed what little remaining credibility that the US media enjoyed after its embarrassing bias during the Obama years and the Hillary campaign. That Trump won an election that the media overwhelmingly opposed him on was Trump’s unforgiveable sin. That, on balance, even the hyperbolic ‘Don from Queens’ Donald Trump was far closer to the truth as to the veracity of the allegations against him than almost anyone in American journalism was – not to mention a US media whose cable news green rooms were populated by former American security eminences sullied by the Iraq war - should provoke some serious soul-searching. To its credit, many independent and even left of centre journalists (who I would probably disagree with on most things) did ask questions and refuse to join the media herd, with Matthew Taibbi’s brutal but deserved account a 'must read' from this debacle. The lion of the conservative American media establishment, Brit Hume, was right to describe the media coverage as the "worst journalistic debacle of my lifetime". The US media needs its own reckoning. I say this with no relish but, instead, with regard to the vital role that a serious and independent media plays in informing the public and in holding governmental power to account. If the media is now so rotten and agenda driven, then not only will these crucial public duties go unperformed but, when a crisis inevitably occurs, there will be no media in which the public can have any confidence. Finally, hopefully, conservatives who believe in the rule of law will have learned to be sceptical of rushes to judgement based on institutional trust not actual evidence, and will be cautious before joining any future pile on of a Democrat placed in Trump’s position.

Fourthly, for all of the United States’ current travails, it should take enormous pride that it can still produce a public servant of the calibre of Robert Mueller. I have enormous personal regard for Mueller. Yes, he was and is, to borrow the nonsensical terminology of our time, a son of ‘privilege’, a ‘prep’, but he was also that rare member of his cohort who volunteered to serve in the Vietnam War that so many, including future US Presidents, did their best to evade – and Mueller served there with distinction as a Marine officer. Mueller then, also, eschewed a lucrative career in private practice to take prosecutorial positions in the service of the public interest. On any view, Mueller is a heroic figure and only the more so for his willingness to disappoint the baying mobs and political hacks. Hopefully, for the US’ sake, there are other Muellers out there, who will avoid partisan politics, and the temptation to play for applause from the gallery, and instead doggedly follow the evidence where it leads and, if it is insufficient, be satisfied to publicly clear, rather than bring a false prosecution. Robert Mueller is a living reminder of the sort of diligent, quiet, self-effacing, and American “wise men” who created the American century, and who built and led a superpower.

Finally, the full truth of the Mueller probe, especially its counter-intelligence aspects, and its related issues will likely never be known. Moreover, the personages involved have still never been asked questions on what really happened in 2015-2016 in any exhaustive manner. It is as if a narrative took hold that few if any in journalism or academia wanted to question. As a wise Crown Prosecutor once said to me, “Even the greatest of crimes is but a mere chronology”. In March 2019, even with Mueller’s report now submitted, it is still entirely unclear what actually happened – when, where, who, how, etc and why - during the late Obama era. It is hard to make sense of a counter-intelligence probe whose history only gets more confusing - not more clear - over time. None of this invoved Robert Mueller. But further questions only arise from anyone looking back, fairly, at the history of the "Crossfire Hurricane" probe and the bizarre set of circumstances that led to the Obama-era FBI probing the Trump campaign, especially after the truly sham-like decision of the FBI to allow Hillary Clinton to escape prosecution.

My own particular curiosity is the evidence that would be given by Admiral Michael S. Rogers, USN, the former head of the US’ National Security Agency. After the US election, in late November 2016, Admiral Rogers went to meet the then President-elect Trump in New York City. Very unusually, Admiral Rogers went on his own to meet Trump. Usually when intelligence chiefs meet with a senior political figure, let alone a president-elect in the American system, they will attend as a phalanx, not just to provide a comprehensive briefing to the dignitary but, also, to ensure that each has a witness as to what was actually said. Instead, Admiral Rogers went on his own to see Trump, ostensibly about a job in the new administration. If anyone in the US Government at that time would have been very well aware of Russian hacking and kompromat, it would be Admiral Rogers. Yet, Admiral Rogers went to meet Trump, on his own, and to this day, what they discussed has never been leaked. Perhaps it was just a job interview? Perhaps it was just an informal briefing? But, nonetheless, after Admiral Rogers met Trump, there were calls from within the outgoing Obama administration for Rogers to be fired. And, moreover, Admiral Rogers was the only senior intelligence figure of that Obama era to have then been kept on by the incoming Trump administration, and to have retired from government service with all due honour and dignity.

Whatever Admiral Rogers (and those of that circle) knows of this critical 2015-2016 period is a matter for others to question but, until, especially, he and others write their memoirs or are subpoenaed to produce documents and testify, the full history of the late Obama era, the FBI, and the Russian threat, will still elude us all. Until the intelligence and policing heads are probed at length on the chronology of all these matters, from the Russians to the FBI’s conduct, nothing approaching a reliable history of this 2015-2016 descent into Moscow Centre-induced madness can be written. Hopefully, with Mueller now reporting in, that timeline can now start to be assembled, by vigorous, curious, and unbiased, journalism of the kind that has been so woefully absent for the past 4 years. We should all hope this will happen, especially as, after all, if you have spent years stumbling around the ‘wilderness of mirrors’, you can only start to find your way out by first breaking glass.

The Catholic Church In Opposition

Needless to say, morale in much of the Church in 2019 is low. But what else should, reasonably, be expected? Given that the past 25+ years has been a hard time for Catholics, especially those in the formerly Protestant, Anglophone, world, where the Church has been damaged - entirely justifiably - by its seemingly endless sex abuse scandals. It cannot be overstated just how much the moral filth of sex abuse and its covering up has disfigured the Church. The repeated scandals, the gravity of the crimes, the seriousness of the sin, and the sense that one’s church was not the solution to any problem but was the problem, has caused so many Catholics to question their hierarchy and, even, put their own faith on a time out.

This scandal-induced demoralisation has been compounded by the general post-Vatican II sense among many Catholics, for some time, that no one is all that sure what the Church still teaches, what is essential and what is optional, and even whether the Pope, himself, was, per the old joke, still a Catholic. One can exaggerate these problems, of course, and the rot that has infested the Western or Latin/Roman-rite of the Church has not been true for the universal Church, especially in central and eastern Europe and Russia, as well as Asia and Africa.

Thankfully, while the post-modern Church may have its issues, the ancient Church’s 20+ other Rites continue to march the ‘church militant’ onward and upward, if not always at the same speed. I pass over issues in the Russian and Chinese branches of the Church, here, for reasons of brevity and because, as Zhou Enlai said of the French Revolution’s effects, it remains too early to tell what will happen. As the wise Jesuit says, “If the question is who runs the Church, who is in Hell, or when does the world end, those are Management decisions and we are in Sales.”

This said, among the Anglophone laity, while there has been a steady but sure decline in Sunday Mass attendance, and numerous examples of terrible catechetical teaching, Catholics continue to identify as such despite enormous temptations to defect elsewhere or go for a ‘spiritual not religious’ identification. Moreover, while all these storms have rocked the barque of St Peter, the Church still performs, throughout the world, its "good works" and historic mission of operating schools, hospitals, shelters, universities, clinics, and receiving and resettling refugees of all faiths and all nationalities in enormous numbers and with an effectiveness beyond, and at a cost significantly below, that done by secular bureaucracies.

As a cradle Catholic (albeit with Presbyterian ancestry), I take as much of this as I can in my stride, as no doubt my ancestors did. The Church will always be imperfect, as humanity is fallen, and prone to Sin. As the book of Ecclesiastes both promises and warns, “What has been, will be again, what has been done - will be done again; there is nothing new under the sun” [Ecclesiastes 1:9].

Taking a step back, it is difficult to overstate how supranational the Catholic Church is: it is in every country on earth, and usually well before that territory was its own nation-state. The Church is truly universal and if one is after true ‘diversity’ in one’s religion, then go to any Mass at the Vatican or, indeed, in Sydney or London or New York, where sitting next to each other in the pews, one will find bankers and paupers, peers and commoners, lawyers and former convicts, ancient landowners and new immigrants, all reciting the same creed and exchanging, usually awkwardly, the same sign of peace, while singing badly to really terrible modern hymns. In our parents’ generation, and both of my late parents were Vatican II refuseniks, it was even more universality amid diversity: all of this would have been said and done the same, in Latin and had incense, wherever you were in the world, in line with the Mass of Pope Paul V of 1570. The Catholic Church was described by someone as, “Here comes everyone”.

For all these good works and for all this ‘diversity’, like its Orthodox brethren - and unlike all too many protestant churches - Catholicism has steadfastly refused to ‘evolve’ or apostatise itself on the issues of the day. On abortion, on euthanasia, on marriage, Catholicism, even now amid the current storms, has not capitulated to fashion or surrendered to what is fashionable. While Pope Francis has been attacked from within his own Church, often unfairly, there has been no Pope in my lifetime who has more vehemently denounced abortion and spoken for life than the current Shepherd. The deposit of Faith has been kept secure and, for Catholics, the fact that, looking back over two millennia, even the worst Popes did not alter the Church’s doctrine, especially in this day and age of weak bishops and episcobabble, is a source of great and enduring comfort. Moreover, there were also, always, good Popes conferred on the Church to guide it through the worst of times.

As the Western world changes and its public morals revert to the pagan norms of the pre-Christian world, the Church, battered and bruised, to be sure, still stands as a sign of contradiction. As the ageing St Paul wrote to his protégé Timothy, “I am giving you these instructions…so that by following them you may fight the good fight, having faith and a good conscience. By rejecting conscience, certain persons have suffered shipwreck in the faith” [1 Tim 1:18-19]. Indeed, a gaze over at 2019’s Church of England gives a sense of what the ‘shipwrecked’ future may have been had Popes listened to the zeitgeist: a shrinking church, which has routinely given into fashion even at the risk of schisms, now even offering re-baptisms of the human person to celebrate their new transgender identity. Where does this end?

While morale may be low and the current cohort of bishops often disappointing, the Church itself still has its laity which, having had its faith and loyalties tested by appalling scandals and lax governance, still turns up and still stands up. The laity turns up to march for life, to fight against abortion, to argue for the dignity of those so ill they cannot fight for themselves, and to fight for causes so unfashionable and so obnoxious to our times that one cannot but be in awe. The Catholic royalty, aristocracy, and intellectual leaders still hold the shepherds to account to protect the fundamental teachings of the Church. And in doing so, the Catholic laity gives witness to what the Psalmist said, “The sum of your word is truth; and every one of your righteous ordinances endures forever.” [Psalms 119:160] In this sense, then, especially as liberal Boomers pass from the Church's leadership and bureaucracies, thankfully leaving no heirs, the Church’s future is probably better than it may look now.

Indeed, in a Western world where the liberalism of the Tarpeian Rock awaits those who, in their conception, their sickness, and their mortality, will be or are burdens on ‘the pursuit of happiness’, the Church must be – indeed, it can only ever be – in the most vehement of opposition. The Church is, again, not just in opposition to the world but will be, again, a missionary church, as well as Pope Francis’ “field hospital” for the wounded. After all, as Jesus said to His disciples, "If the world hates you, know that it has hated me before it hated you." [John 15:18] For a Church in opposition, there is no greater assurance than this that its battle is the most thoroughly righteous one in which it can engage.

The Church went through tremendous scandals and reforms in the 16th century. Even then, its standard could still be carried forth by St Ignatius of Loyola and the new Jesuit order that he founded. Of the Jesuits’ number, the figure of St Edmund Campion loomed large and still looms large in the Anglophone world.

St Edmund Campion was a child prodigy and an Oxford student of such ability that he gave the speeches welcoming both Queen Mary and Queen Elizabeth to the university. Campion, while a nominal Anglican, would, through his studies and the divine will, find his way into the Church, where he would go to the continent and Rome to join the Jesuits, be ordained a priest, and then return to his native and newly protestant Elizabethan England as a missionary priest in 1580. It was not a long mission, and Campion was soon caught by the Queen’s spies and tortured. While offered many inducements by the Queen’s councillors to return to the Church of England, Campion stood strong in the Faith and, as a physically broken man, was brought to a show trial in 1581. All of the details of Campion’s trial are gory and unjust, and Campion was, inevitably, found guilty, sentenced to death, and then executed at Tyburn, as so many British saints and martyrs were during the Protestant ascendancy. Campion, however, left us with the closing words of his famous “brag” of 1581 where he challenged the Privy Council that was meeting to decide Campion’s fate. To the Privy Council, Campion closed:

The expense is reckoned, the enterprise is begun;
It is of God; it cannot be withstood.
So the Faith was planted;
So it must be restored.

From opposition to restoration is a worthy mission. So, my fellow Catholics, welcome to another Kulturkampf. As Pope St Leo XIII wrote in Sapientiae Christianae, "Christians are, moreover, born for combat, whereof the greater the vehemence, the more assured, God aiding, the triumph".

Keep the Faith!

The Case for Constitutional Federalism

One of the many benefits of having practised and taught constitutional law is you will possess insights into matters of current controversy, not just in your own jurisdiction but in the historically ‘parent’ jurisdictions that inspired one’s own, in my case, the Commonwealth of Australia.

One of my first questions to those new to Australian constitutional law is, "why do we speak in terms of the nation being constituted by a basic law?" and "who is doing the constituting?" of the nation-state. These are not idle questions. While Australia was a rugby and cricket team before it was a federated nation, Australia only has a legal existence because its Constitution, literally, constitutes the Commonwealth of Australia. How and why this new nation was constituted are matters of critical significance. 

[That Australia has a (very) plainly written Constitution, despite its origins as a British colony governed by British statutes and the reception of the English common law, is, actually, the triumph of a Roman Law inheritance in our part of the English speaking world.  In Roman Law, what is the law to be obeyed by ruler and ruled is always codified in clear if exhaustive terms for application by the Magistrate and for the understanding of all who will be subject to it - and what is codified is super-precedential over whatever else one may think the law should be, whether as a matter of some custom, some common law, or stare decisis. In this sense, a written Constitution is the ultimate Roman Law institution as, for a federation, it will reflect (in the case of the Crown), or will be the source of, all legitimate power and provide the fundamental rule under which all who are within its jurisdiction must live.  That the Romans, too, like the Church, possessed a federal governing culture codified by extensive legal codification, wherein the Church and then the Holy Roman Empire were, themselves, masterpieces of monarchical and hierarchical federalism (whether governing through princes or bishops), is a fascinating discussion for another day.  One must, nonetheless, bear in mind that ideas of federalism and federation derive from the same Latin root, foedus for treaty and foedera for treaties of alliance, indicating our juridical debt to a Roman history of reducing to writing, terms solemnly agreed, according to which different places and peoples would unite in alliance and common cause under a shared legal order.]

As Australians, with our “WashMinster Constitution", wherein American-style Federalism (the Washington part) coexists with British parliamentary institutions and norms (the Westminster part), we have to always acknowledge the various inspirations for own basic law, such as the Romans and, of course, the British. The Australian founding fathers in the Federation movement in the 1890s were inspired by contemporary Canadian and American experience, and to some degree that of the Swiss republic. In particular, there was high regard among the Australian founders for the Philadelphia Convention of 1787 and the genius of the American founding generation, in particular Alexander Hamilton and James Madison. Like the American founders, the drafters of the Australian Constitution in the 1890s were conscious that they were uniting disparate British colonies who inhabited a massive island continent plus Tasmania (The distance between Sydney and Perth is greater than that between London and Moscow). In the words of Sir Edmund Barton, the first Prime Minister of Australia and later a Justice of the first High Court, "a nation for a continent and a continent for a nation". The new national Constitution and the national government for which it provided were particularly required to ensure the national security and economic prosperity of those who would become the Australian nation. At the same time, like their American inspirations, the colonial Australians adopted Federalism as the device by which the several colonial polities would unite – or ‘federate’ – as one “one indissoluble Federal Commonwealth under the Crown” per the Constitution's preamble.

The genius of Federalism is that it allows for a geographically and disparately, and even quite differently, populated, nation-state, to hold together, despite the inevitable frictions between its members. Federalism literally provides unity in diversity. Federalism provides a mechanism for people to share a common nationality without unduly sacrificing the big to the small, or the rural to the urban. By allowing representation by differentiated seats and territories, Federalism assures the localist that his or her membership of the larger nation does not negate the right of the province to govern itself and, also, assures that the smaller region's voice in national affairs will count for something, and not be drowned out – or dictated to – by those who may form a notional electoral majority.

The concern of Federalism is to establish a functioning and federating polity that distributes power along the lines of geographic territory and not the national populations per se. Its primary concern is to keep the federated state together, to keep 'those compacted in the compact’, to borrow from a great judge’s words. Democracy in some form is important but it is a specific form of democracy within the constituent provinces of the Federal structure and not democracy across the Federal structure.

[The alternative to Federalism is not some harmonious common democracy but, likely, a brief dictatorship of the urban majority, which will be followed, in due course, by provincial rebellions.]

Republican Federalism

It has been hard for the curious observer, with even the most basic knowledge of civics, to avoid noticing, in the American context, numerous appeals by the political media and Democratic partisans to something called “the national popular vote”. I have catalogued such irrelevant appeals to the "popular vote" on Twitter.

These appeals are usually followed by complaints regarding the asserted unfairness of the American federal compact, whereby, since the United States was founded, each State elects two senators, regardless of whether a State is a large woke-polis or some small rural enclave of hicks, “rubes”, or townies.

However, these results are Federalism doing its work in an American republican context, and, in particular, ensuring that the many smaller and rural States do not have their voices drowned out by the few large and urbanised States.

Indeed, in the case of the American founders, they purposely:
• established the United States of America (not the United People of America...one presumes the States were united for a reason);
• enshrined equal senatorial representation in the US Constitution: “The Senate of the United States shall be composed of two Senators from each State” (Article I, Section 3(1));
• established equal senatorial representation to the degree that no American state “without its Consent, shall be deprived of its equal Suffrage in the Senate” (Article V), ie where there any doubt as to the importance of Federalism, the founders created a super-resistant amendment process if ever there was one; and
• established an electoral college (membership determined by each State’s own elections for presidential electors) to, in turn, elect the President and Vice-President, who are the United States’ only two nationally elected executive officers (Art II, Section 1). And if the electoral college is deadlocked and cannot elect a President and Vice-President, then it falls to the House of Representative...which, in the best traditions of constitutional federalism, then votes for President and Vice-President by state delegations and not by party line or any sense of a popular vote, per the Twelfth Amendment.

The concern of the American founders was to ensure that the component States remained united, in a form of government robust enough to survive and govern an expanding American territory, without allowing populated urban centres to dominate regional and rural states. The secessionist movements at the time of the war of 1812 and especially the Civil War show just how dangerous it is to expect that federating nations will always be able to hold together.

Monarchical Federalism

The wisdom of the Federalist proposition was accepted by Australia and Canada, which are both constitutional monarchies and federal nation-states. Both adopted the bicameral British Westminster parliamentary system, in which there are two Houses, as a lower elected House (House of Representatives (Australia), as well as a Senate as a House of review.

In the House, the nation is divided into electoral districts/seats/constituencies/ridings on the basis of representing a given territory containing electors for that seat. These seats' boundaries are often redrawn in order to meet population shifts and, in Australia’s case, to provide for, roughly, 150,000 residents and 100,000 voters in each seat.

In a Westminster system, the Executive power is vested in the Crown and the Executive (ie the Prime Minister and Ministry) is drawn from whichever party or coalition has the confidence of the lower House.

While the House’s responsiveness to each individual seat’s electors may be the most democratic element of the Westminster system, especially as these seats determine who will form the government, even then it should be noted, that even the most careful drawing of territorial boundaries for each seat will still provoke some grumbling.

With regard to Australia, the Constitution (s.24) guarantees to each of Australia’s Original States (ie New South Wales, Queensland, Victoria, Tasmania, Western Australia, and South Australia) that they will have a minimum of five (5) House seats, regardless of population movements. Given Australia’s population distribution, and any decline in especially the Tasmanian population, the constitutional guarantee of still-sparsely populated Tasmania having at least five House seats may, in due course, become an issue for some. (As a long time support of Tasmania, if this helps keep Tasmania happily within the Australian federation, then I say Federalism is doing its job.) Moreover, House seats boundaries are limited to those of their State, and may not cross State borders, another example of the Federal nature of the Australian Constitution (per s.29).

Moreover, both Australia and Canada have Senates that are populated by senators that represent States or Provinces. In Australia’s case, each of Australia’s States have an equal number of Senators, regardless of population. Indeed, Australia’s constitutional design is so Federal that the Queensland Parliament had a special carve-out, should it wish to, to elect its Senators to represent specific senatorial electorates within that State (s.7), albeit one never exercised. In Canada’s case, the Senate is not even elected but is instead, in effect, appointed by the Crown on the advice of the Prime Minister of the day, to represent designated provinces and regional areas. None of this is democratic per se but, instead, serves the Federalist interests of making sure the federating parts of the nation-state have their voices heard and representatives in the national parliament to protect the interests of their constituent States, provinces, and regions.

Finally, in Australia’s case, the Constitution can only be amended by national referendum (s.128). Even then, a national majority of electors is insufficient – rather, a proposed constitutional amendment must not only win a national popular vote majority but must win a majority of the vote in a majority of the states. There is no more persuasive indicator of Constitutional Federalism than this requirement. The Australian Constitution's provisions for House representation and Senatorial representation also cannot be altered without the consent of the electors of the States that may be affected at the referendum, thereby replicating the United States’ requirements for constitutional amendment in Article V as regards its States.

The process for amending the Canadian Constitution is at least as Federal and, arguably, even more complex than is the case for the Australian Constitution.

The Future of Constitutional Federalism

No one is ever happy to lose an election. Some are even distressed when they win them. Nonetheless, those contesting elections in specific seats and regions are well aware of the legislative offices that they hope to occupy and what specific electors they are seeking to and, if elected, will be serving each day they are in office. And this is the whole point of Constitutional Federalism: when you run for a House seat representing a constituency or district or you run for a Senate seat for a State or a Province, you are running as a candidate to represent that specific territory and its people in an office provided for by a Federal constitution.

Under a Federal Constitution, you are elected as a territorial representative of a constituency or district or State, to serve that territory's people and to represent their interests, however great or small in size or people. You are, expressly and by intent, not elected as some national, partisan, apparatchik-at-large, who is only there to help enact the herd-like will of the “national popular vote”.

Direct democracies may seem, at first glance, fair, depending on whether or not you like the result, but, over time, they fall, inevitably, apart, especially as a few highly populated metropolises overawe the many sparsely populated towns, villages, and hamlets. Overtime, what could have been a common federal citizenship will become a disputatious unitary polity of electoral winners and losers, of rich versus poor, of town versus country, which will, when the aggrieved are denied representation, lead to political fragmentation, if not rebellion. A direct democracy for a large and diverse nation will provoke only resentments and entrench divisions.

Federalism is the ethos as well as the pact that disparate peoples inhabiting large constitutional states have made amongst themselves, in order to share a common national citizenship, while having their own voice and keeping their own patch. It allows for both necessary subsidiarity as well as for a natural loyalty to the larger nation, in the way that Edmund Buke’s ‘little platoons’ help build up the human society.

To borrow from the Americans, out of the many may, indeed, come one, but that for that one to survive times of war, depression and tumult, and to remain unified, then that one must, in its national legislature, accept that it is a unity composed by the many - and all of the many deserve to have their voices heard.

We live in a time of much anger, partisan rancour, and also much emphasis on ‘diversity’ and allowing people to determine their own courses in life. Federalism is thus not the problem – it is the answer. And while we Anglophones will always require strong central governments to secure the nation and protect its interests, we also need space in our national legislatures for those in the small town, the forgotten region, and the small and neglected province, to also have their say, and to ensure that no section of us is lost in the country that belongs to all of us together.

The Sources Of Russian Conduct

At time of writing, US President Donald Trump has just finished his first summit in Helsinki, Finland, with Russian President Vladimir Putin. The summit itself produced no tangible outcome, other than the leaders of the two nuclear powers getting together to meet alone and then with staff. The earlier NATO meeting in Brussels had served the purposes of that alliance, by way of pledges from delinquent Europeans to increase their paltry defence budgets. This historic mission of NATO, per General Sir Hastings Ismay, assistant to Churchill and the first NATO Secretary General, is, "To keep the Americans in, the Germans down, and the Russians out" albeit the Germans now keep themselves 'down' by effectively disarming.

The only real news came from the press conference, where Trump, as is his wont, denied the obvious Russian meddling in US elections, even when told by his own intelligence agencies, because of a fear that there be any question as to the legitimacy of his 2016 electoral victory. Trump’s bizarre obstinancy, which deserved, fully, the criticism that it received, was quickly outdone by the increasingly hysterical and broken, with cries of “treason” from the very same and supposedly non-partisan media that cheered on the disastrous Obama defence sequester, the inane Hillary Clinton Russian Reset, and who ridiculed Mitt Romney for his observation in 2012 that Russia was the United States’ primary geopolitical foe.

One of the miracles of the Trump era is the conversion of formerly poncy American liberals into hawks, at least against Russia, something that did not occur during the Soviet era and which was unknown before 09 November 2016. Moreover, the fact that Trump remains the US President means that many neoconservatives remain on the brink of requiring institutionalisation.

In any event, as I often say, it is always good to keep a sense of perspective and see things as they really are. If Donald Trump or, indeed, Vladimir Putin, disappeared tomorrow, the Western relationship with Russia would still have many problems. It has always been a cardinal error of Western analysis of foreign (and especially Russian) policy to focus on personalities and ignore enduring cultural and historical drivers of statecraft. This is a particular failing among Anglophones, of which I am one. English speakers and Anglophone analysts are, too often, ignorant of their own geography and history, and how it drove and still determines their statecraft. The British were and remain an island and seafaring people, whose language, law, culture and customs spread by sea to North America, Australia and New Zealand. This bred both an aggressively commercial instinct, as well as habits of insularity and provincialism. Also, being island people with sea frontiers, Anglophones were liberated from the sort of messy and combative, “cheek-by-jowl”, Realpolitik, existence that has been the lot of continental European states that share land borders, rivers, lakes, mountains, and other intimate frontiers, with historic enemies. Anglophones have the luxury of an idealism conferred by the security of their sea walls, and which idealism is denied to those continental states who must look at their enemy’s enemies for their friends. The Russian state, over centuries, has had many problems but a lack of a sense of history and geography - and a lack of enemies - is not one of them. In the case of Russia and the Russians, then, the following should always be born in mind:

A. The Russian Federation spans 11 time zones and contains 150 million people. Modern Russia sits central and atop what the British geopolitician Sir Halford Mackinder called, “the heartland” of Eurasia. While the Russian economy is, on a good day, only the size of that of Italy, or less than that of California, Russia has nuclear weapons, is a major military power and arms exporter, and has a historic capacity for war, spycraft, and subversion, both out of a sense of self-preservation against adversaries and to impose its will on weaker neighbours on the Russian periphery;

B. The Russians have their own language, culture and understanding of nationhood. The Russian nation dates back to Kievan Rus in 882AD and to the story of its ensuing Christianisation. This more than 1000 year old history well predates the colonisation of the Americas, let alone the United States, and pretty much all of the states of the European Union. Russians – whether governed by Grand Princes, Tsars, Commissars, or now a President – have a defined sense of self and of shared bonds together and their estrangement from others. Moreover, the religious dominance of the state-supported and directed Russian Orthodox Church had the effect of uniting the Russian people spiritual and political in a way that Western liberal secularists fail to comprehend or, if they do, generally despise it; and

C. In that past 1000 years, the Russian people have fought against and been invaded by – from all points of the compass rose – the Mongols, the Swedes, the Persians, the Turks, the French, and the Germans (twice). And then, during the Cold War, came the shambolic Soviet attempts to maintain an empire over old central European peoples who hated both Russia and especially the Soviets. The Soviets came close to a nuclear conflict with the United States during the Cuban Missile (1962) and the Yom Kippur War (1973), and had an actual shooting conflict with China over the Ussuri River border in 1969. That Russia has been attacked from all directions, regularly, in its history, breeds a fear of encirclement and invasion that is never far from the surface of Kremlin thinking.

Suffice to say, each and all of A-C leaves their imprint down the ages. There is nothing that anyone who is (or is not) Russian can do about them. These geopolitical realities ensure Russian statecraft follows certain repetitive directions, to retain Russian power, to deploy Russian force, and to avoid Russia’s perennial fears of invasion and encirclement. It is best, then, to bear these enduring and historic influences in mind when considering statecraft, especially that of a great power. The great British military historian, Sir Basil Liddell Hart, advised his readers, a devoted one of which was the future US President, John F. Kennedy, who would review Liddell Hart’s book, in the following terms:

Keep strong, if possible. In any case, keep cool. Have unlimited patience. Never corner an opponent, and always assist him to save face. Put yourself in his shoes - so as to see things through his eyes. Avoid self-righteousness like the devil - nothing is so self-blinding.

This is wise advice. Pause and think of the view from Moscow (or Tehran or Beijing) before formulating a new strategy.

As it is, we in the broader West face numerous and intractable problems in dealing with Russia which make any attempt at improving relations almost doomed to fail.

Firstly, there is no real trust between the Russians and the West. The expansion of NATO to Russia’s borders occurred in contradiction of the guarantees made to the former Soviet Union that a united Germany would be the only addition to NATO’s membership. By 1999, under the Clinton Administration, former Warsaw Pact members such as Poland, Hungary, and the Czech Republic became NATO members, which has since grown to include all manner of smaller European states that few if any US politician could find on a map. Also in 1999, NATO bombed Russia’s ally Serbia in support of the Kosovars. All this NATO expansion occurred when Russia was at its weakest, most dysfunctional, and, in the Russian mind, while they were being exploited by the new oligarchs and Western vagabonds who plundered their wealth. These grievances are all ‘baked in’ the Russian relationship - and Vladimir Putin is but one of the inevitable reactions by a Russian people with grievances towards the West. The (disastrous) Western interventions in Afghanistan, Iraq, and Libya, continuing or leaving chaos in their wake, have also raised Russian anxieties as to Western enthusiasm for ‘regime change’. Even if a Vladimir Putin was not the Russian President, the advance of the NATO frontier so close to Russia and the Western involvement in the 2014 Maidan Square toppling of Ukraine's former President Viktor Yanukovych would mean any Russian President would take steps to rebuff the West's advance.

(I leave aside the West’s own grievances against Russia, most recently its proxies’ shooting down of the MH17 aircraft, killing 298 innocent people, and Russia’s support for Iranian moves. Russia’s 2014 annexation of Crimea is, in truth, a less serious issue, as it has no real likelihood of being reversed, given the local Crimean support for Russian unity and the fact that no Russian leader will ever surrender Sebastopol. Those criticising President Obama for weakness towards Russia over Crimea and Donetsk ignore that Obama had no good options. Simple fact is that there is simply no trust between either side and Russia is entrenching its newly acquired position.)

Secondly, Russia’s geography and the value of its ‘near abroad’ to its security mean that Russia cannot overlook Western militaries operating in or near its borders, bases and interests, be it in Afghanistan, Syria, the Black Sea or Baltic Sea. One can have idealistic dreams of a “Europe from the Atlantic to the Pacific” but the reality is that, each day, the Russian military operates and patrols to deter what the Russians see as deterrence of Western probes, intelligence collection and reconnaissance against ‘the motherland’. Even with a relationship in a better state than the current dismal one, it is inevitable that ‘blue and red’ military activities risk future clashes between Russian and Western militaries, which will, when they occur, have to be de-escalated quickly. This is in addition to Western provision of lethal military aid to the Ukranians, which risks Western weaponry being used to kill Russia’s “little green men”. One does not need to be AJP Taylor to see the obvious dangers of escalation here. Moreover, the Russian military staff system is mature and dates back centuries, improved by the Soviets, and staff training prepares Russian officers in understanding the history, languages, cultures and military thinking of their adversaries. The Russian military mind is brutal where necessary but is just as supple and sophisticated as any Western military at its higher echelons. Westerners underestimate the sophistication of Russian military thinking at their peril.

Thirdly, the sanctions against Russia have done grave damage to the Russian economy. There is no prospect of the West relaxing sanctions. There is no prospect of Russia engaging in any sort of behaviours that would lead to a relaxing of sanctions.

Fourthly, Russia (through the Shanghai Cooperation Organisation and bilateral relations) has sought closer relations with China and Iran. This is in addition to Russia’s role as a backer of North Korea and Syria. In the case of Russian support of Syria, this is not a policy choice suggesting a desire to relieve Americans and Israelis of anxieties as to Russian policy in the Middle East. Russia is promoting its reliability as an ally by backing its long term Syrian ally and by ensuring Russia’s bases in Tartus and Lakatia. Russia also sees these relations as a means of breaking out of its perennial fear of encirclement.

These are just some of the problems that plague the Russian relationship.

The conundrum of Western statecraft is that, at present, the Russians, Chinese, and Iranians, form a geopolitical bloc that dominates the Eurasian heartland and rimland. The military, security, and other working partnership between Russia and China has been termed "DragonBear". The more Western policy punishes Russia (rightly or wrongly), the more Russia is pushed to sees its future as one of these three overlords, rather than, say, as a humiliated counterparty of an ever more mercurial West. Moreover, from a Muscovy perspective, it is far better to be in penury and have good relations with the other land powers adjacent to Russia than to risk disappointment again by engaging with the West. A Russian people that lost tens of millions of people during the Second World War, a war that still helps define even a modern, non-Sovietised Russia, has little fear of Western sanctions that do not bind China and other states.

To some degree, the future will be determined by this geopolitical question: does the West see curtailing Chinese and Iranian ambitions as worth overlooking some previously unacceptable Russian belligerence? Can Moscow win concessions if Chinese and Iranian aspirations become the most pressing concern? If so, does Russia do what it can via arms sales, training, intelligence sharing, and subversion, to assist the Iranians, especially, and the Chinese to make as much of a nuisance of themselves as to force the West to come to terms with Russia - on Russia's terms? There is no feasible way that the West can posture military forces to engage in a “Triple Containment” of Russia, China, and Iran, especially as they are all land powers. The future of Russian statecraft may seem to be adventurist but that is to assume that the Kremlin sees the world as the West does. Where the liberal West eschews the means of military power in favour of absurd ideas of 'soft power', the Russians look at the required ends to be achieved, including intervening with overwhelming military force, as Russia's Syrian campaign has shown.

On any view, relations with Russia will remain fraught for the foreseeable future. If one is to understand Russian statecraft, one must understand the Russian people, history, and culture, on their own terms and as Russians see them. To understand your adversary is not to betray your own nation but to be able to pursue its interests all the more effectively and with a needed grounding in reality.

The current hysteria over Russia helps no one. We need a broader debate over Russian policy rather than allegations of treason or puppet when anyone tries to correct error. Conformity helps no one, especially when it is imposed on pain of dissenters being defamed. The real question must be asked, also, of the utility and realism of Western security pledges made to states on the historic Russian periphery by alliances in which Americans shoulder an immensely disproportionate share of the military burden, at a time when most Americans are tired of alliances that are, in effect, dependencies. Europeans that have effectively disarmed take grave risks when poking the Russian bear or threatening the approaches to its historic domain. The question, "Who will die for Donbass?" may not be wholly rhetorical for NATO in the years to come. The Russian view is that the Europeans are too weak, infantilised, disarmed, and militarily unserious, as well as too divided by conflicting interests, to mount any response to Russian advances, whether by way of open or by hybrid warfare. The American appetite to defend Europeans who cannot and will not help defend themselves is also, likely, waning, on all sides of US politics. The Cold War is (long) over and, to the degree that Europeans have chosen butter over guns, then the European military decline is a choice that Europeans have made for themselves. The Americans are not obligated to prevent the Europeans from suffering the inevitable consequences of their military delinquency.

I will leave the final words to Sir Basil Liddell Hart, himself a very astute judge of Russian military history and statecraft, as to why we do not learn from history:

“Regrettable as it may seem to the idealist, the experience of history provides little warrant for the belief that real progress, and the freedom that makes progress possible, lies in unification. For where unification has been able to establish unity of ideas it has usually ended in uniformity, paralysing the growth of new ideas. And where the unification has merely brought about an artificial or imposed unity, its irksomeness has led through discord to disruption.”

Spasiba.

The Crown and the Republic

Reasonable people may differ on the issue of whether Australia should remain as a constitutional monarchy or whether Australia should become a republic.

However, Australia is a constitutional monarchy at present and any move by the Australian people to change to a republic would require the drafting of significant constitutional amendments and the approval by the Australian people, in accordance with s.128 of the Constitution, of these republican amendments.

The text of the Australian Constitution can be found here and I would urge all Australians to read it and understand their fundamental law.

My view is that if one wants to break with the Crown and institute a republic - with all that will entail - then one has to accept that significant amendments will have to be made to our Constitution. Moreover, these significant amendments will have, also, to deal with the separate relations of the Crown to the several States, as set out below. As WA Wynes noted, "The central characteristic of the Australian Constitution is the predominance of the Crown in every aspect of governmental powers." There is no 'minimalist republic'. In fact, it would be much safer for republicans to propose a wholly new constitution than seek to amend our monarchical and federal Constitution.

Amending the Constitution to create a Republic

To amend the Australian Constitution to create a republic would, at the very least, require the altering of these key provisions:

(A) the Preamble to the Constitution: the Commonwealth of Australia is, literally, constituted via these words and the Constitution that follows:

“Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established”

On any view, this preamble would have to change and a new sovereign authority found to replace the Crown. Note that the Australians are federating pursuant to the "Two Unders": under the British Crown and under the Constitution. The Crown's position in our Constitution is a matter, simply, of enormity. Also, I am unaware of whether Australia’s republicans wish to remove the references to God in the preamble. The other covering clauses would have to be changed as well;

(B) Chapter II of the Constitution concerning the Executive Power of the Commonwealth, will have to be significantly amended, or, more likely, replaced in its entirety. Section 61 vests, specifically, the Executive Power of the Commonwealth in the Monarch, to be exercised by the Governor-General as the Queen's representative. The constitutional vesting of the Commonwealth’s executive power in the Crown means that, along with that power, we derive from the Crown’s existence, also, our day-to-day Westminster governing norms of responsible government and, in a crisis, the reserve powers of the Crown. In any parliamentary crisis, such as in 1932 or 1975, it is the Governor-General’s duty to ensure that the Constitution is maintained and the laws enforced, and, especially, to ensure that the Australian people decide through elections how a situation of government illegality or deadlock is to be resolved (hence the Governor-General’s power per s.5 to dissolve the House for fresh elections-see discussion below). If the Crown is abolished, so, too, are all these understandings of the executive power that are answered, currently, by the Crown’s position in our Constitution. Inevitably any republic will create a vacuum in the exercise of the executive power–and it cannot be filled by a jurisprudence of ‘cut and paste/replace’ republicanism. A Governor-General acting under royal convention cannot become a President who will be restrained by none of those conventions.

Any president - regardless of whether she or he is elected by two-thirds of the Parliament or directly by the people - will have an electoral mandate that no Governor-General, as the representative of the Monarch, can ever have, or seek to assert now. It will be only human for an elected president of the republic with this sort of national mandate to, sooner or later, seek to exercise the powers that will be reposed in that office, unhindered by royal conventions. There is no minimalist replacement of the Governor-General with any sort of elected President that is, at all, constitutionally safe. There is no safe replacememnt, either, of the Governor-General, by a president appointed by the Prime Minister of the day, who has no security of tenure. Chapter II was drafted on the basis that the Governor-General was the Monarch’s representative and, on those royal and constitutional terms, would exercise the executive power. Chapter II cannot, now, be warped into a republican provision. Instead, any republic would require wholly new provisions setting out what the republican president may or may not do in explicit terms, especially if that president is to ‘cohabit’ with an elected Prime Minister who is already enjoying the confidence of the House of Representatives, where governments are made and broken. The potential for frequent conflict between these two executive office holders - who both have their own national mandates - is obvious, as is the scale of the chaos that could well ensue if they are deadlocked. Again, there is no minimalist solution to the problem of the executive power;

(C) Section 5 will need to be amended, as it allows the Governor-General to prorogue the Parliament and, where necessary, to dissolve the House of Representatives. The exercise of this power now is, almost always, only done on the advice of the Prime Minister of the day, to cause a federal election. However, in times of crisis or deadlock, s.5’s power may be exercised by the Governor-General to force new elections and ensure the Australian people are the ones to resolve a parliamentary crisis at the ballot box. It is hard to see how any future republican president, possessed of a national mandate, where faced with an opposing Prime Minister, especially if that Prime Minister was unpopular, could avoid the temptation to dissolve the House and seek new elections that could remove the difficult Prime Minister. Absent the Crown and precedent regulating this power’s exercise, one can foresee s.5 enabling the slow accretion of power to the presidential office by the frequent calling of elections for the House to remove opposing and difficult prime ministers;

(D) Section 68, as the issue of who is to be commander-in-chief of the armed forces and on what terms, will also be a critical matter. Again, the centuries-old British understandings of a Monarch in command of the armed forces, exercised by the Crown only on advice of the elected government of the day, will be replaced by a President who, one presumes, will have powers of military command, while having, also, this national mandate of either parliamentary or popular vote. What are the armed forces to do when a President and the Prime Minister both have an electoral mandate and yet disagree on matters of war, peace or, in times of domestic crisis, disagree on what is to be done to suppress terrorism, riot, disorder, or an insurgency? One should note here that s.119 obliges the Commonwealth to “...protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence” and the obvious problems of who decides what that protection may involve. The armed forces cannot be left to guess and, in the long history of republican collapses, they have not infrequently been brought to an end by a coup as by civil war or economic slump. While such military stirrings against the civil power are anathema to our history and traditions, so, too, is the idea of a republic itself. If you will the republic, you will the risks of disorder that any republic entails;

(E) Section 126, which permits the Monarch to authorise the Governor-General to appoint any person, or any persons jointly or severally, to be deputy or deputies exercising powers, will have to be amended, as presumably any republican president will have a vice-president? If not, what is to happen when the republican president is disabled or impeached? Who is to succeed to the office?

Additionally – and this is a matter worthy of a long treatise in itself – each of the Australian States has their own royal Governor, each with their own state constitutional foundation and relationship to the Monarch. Any federal move to a republic is not necessarily binding on the individual States and their peoples who, also, with a Governor and parliament, have their own polities under the Crown. I recommend, strongly, the magisterial “The Chameleon Crown: The Queen and Her Australian Governors” by Anne Twomey on this matter. The potential position of royal States attempting to exist within a national republic is the stuff of constitutional minefields. (One should note that Western Australia has, already, a history of secessionism under the Crown….)

These are just some of the major provisions that will require amendments. Others, such as sections 16, 34. and 44, dealing with the constitutional qualifications of Senators and House members will have to be amended, entirely, as the concept of a “subject of the Queen” will be rendered nugatory by the republic. Moreover, there can be little doubt, following on from the recent parliamentary citizenship debacles, that proposals will be made that persons with dual citizenship should be eligible for election to the House and Senate and, presumably, to then hold ministerial office. One awaits the referendum that asks Australians to agree to risk having dual citizens hold the offices of Prime Minister, Treasurer, Attorney-General, Home Affairs, Defence, National Security, and Foreign Affairs.

In short, creating an Australian republic is an enormous constitutional undertaking. Do not let anyone tell you otherwise. Please read and know your Constitution.

The Referendum

Assuming, though, that all of these (and, no doubt, other) necessary republican alterations can, somehow, be agreed upon by constitutional conventions and by the parliament, then the republic would still need to be approved by the Australian people in a way that satisfies s128’s “double majority” requirement: the republic would need to be supported both by (A) a national majority of all electors and (B) a majority of the electors in a majority of the States. Over the past 117 years of the Australian Commonwealth, the Australian people have passed only 8 of the 44 referenda proposed, with the most recent 1999 referendum on an Australian republic being defeated in all States and succeeding only in the Australian Capital Territory. This history is not encouraging for major changes of the kind that will have to be proposed by the domestic republican movement.

My Own Thoughts

Good people may differ on the merits of republics and whether one is appropriate for Australia. The American republic offers a model of a classical republic, with separations of all powers and of all bodies, with the executive and the legislature as strangers, often hostile ones. The American model has its strengths and weaknesses, even after a bloody civil war, and so do, also, the various French, Irish, German, and Swiss models. At time of writing, I have no idea what is proposed for Australia’s republic other than assurances that it is not a major change. I trust the above has dissuaded any honest Australian from holding such an ignorant view.

If one has been convinced by the cosmetic and symbolic appeal of a republic and the need to break with the Crown, then one has a duty to one’s fellow Australians to not allow the current constitutional monarchy to be replaced by some antipodean republican chaos that is devised by the fashionable dregs of celebrity, media, and academe.

(I note here for completeness that while the throne is occupied, at present, by the descendants of the usurping German Protestant Hanoverians, not the legitimate British Catholic Stuarts, that is not the issue here).

So, please look at our Constitution with sobriety and with a justifiable scepticism as to whether any proposed republic will function under the stresses of war, peace, depression, etc, and whether the inevitably competing centres of power created by a republic can be restrained by law.

The rule of law, once lost, is extraordinarily hard to re-establish. The grisly fate of the Weimar republic should always be upper most in anyone’s mind, and, also, so should the British constitutional monarchies infinitely better weathering of the stresses of two world wars and depressions, and without any shift away from parliamentary democracy to authoritarianism. For over a century, tens of millions of people have left their homelands to immigrate to Australia, with the security and stability of our Constitution and commitment to the rule of law an unspoken but foundational attraction. And, need I point out, our Constitution cannot enforce itself. In our system, it is the Crown that is the ultimate guarantor of our constitutional order, and the enforcement of both the Constitution and the laws made under it. Most importantly, the Crown also supplies the royal umpire to resolve periodic parliamentary crises or constitutional deadlocks – if necessary by dissolving the House to ensure fresh elections.

It is said of the Australian Constitution that it was drafted by geniuses so that Australia could be governed by fools, such that it also made it very hard for our Constitution to be amended. For my part, I am thankful for the Australian founding fathers’ efforts to make our Constitution as difficult to change as it is made by s.128’s deliberately onerous processes, which showed an early but correct distrust of the schemes and machinations of the political classes who they clearly suspected would come to inhabit a remote capital. The saying, “If there is no need for change, there is a need not to change”, is a sound one for constitutional questions. So is, “if you do not know, vote NO.”

For over 117 years, the Australian Constitution has survived wars, depressions, cold wars, hung parliaments, numerous innumerate and ethically dubious governments, a coterie of crooked MPs and Senators, and a host of other afflictions imposed by the political class on the rest of us. It is said against the Crown that it is undemocratic, remote, and anachronistic. However, in my view, these qualities are but only a few of the Australian Crown's key strengths. The monarch cannot be ejected by the ambitious politicians of the day, most of whom resent that they may aspire only to be ministers of the Crown and not holders of supreme power. The monarchy is a guardian of the Constitution and not some proto-Caesar eager to dictate to the polity. And, yes, the monarchy is as irrelevant to our age as the monarchy is to every age, but its irrelevancy is what makes it also timeless, as is its usefulness, practicality, and value as an enduring institution that is beyond the petty politics of the day. The reposing by our Constitution of the Executive Power in the Crown provides Australia with stability and order in the day-to-day operation of government, as well as a source of military traditions and non-partisan allegiance. The armed forces, police, prosecutors, and other coercive and powerful arms of the state serve the Crown, not the politicians of the day. There is much to be said for such a distinction between the Crown that is served and to which allegiance is owed, and the day-to-day responsiveness of such public servants to the elected government, which changes with elections. One junks such traditions and practices of legality, stability, and good order, only at one’s national peril. Any proposed republic must not compromise the legitimacy and security provided by the Crown to our Constitution. It would be nothing short of insane for Australians to trust in and accept the assurances of our political class (and their acolytes in the media and elsewhere) that they will, by some hypothetical and unexplained republic, improve on an old and enduring constitutional monarchy that has already worked so well, so consistently, under so much historic stress.

So, it is over to the republicans to make their case and to propose their large and necessary constitutional amendments. In explicit detail. And well in advance of any referendum. With time for the needed debates and back and forth that any sensible polity must engage in before changing their organic law.

As for the rest of my fellow Australians, please remember that these debates will occur in respect of our Constitution and, as the ancient maxim found on war memorials across Australia and across the world goes, “the price of liberty is eternal vigilance.” Please do not just be vigilant: be demanding, be questioning, be sceptical, be exacting, and demand answers, of those promoting constitutional change. We Australians and our Constitution are too important and too special to be corrupted, meddled with, or compromised, and in a manner that may have permanently dire consequences for all that we have achieved, thus far, as a nation. The Constitution is our fundamental law and, if it unravels, so, too, will the Australian nation that it, literally, constitutes. CAVEAT

POSTSCRIPT (Thursday 10 May 2018)

Noting that I had, briefly, covered, the s44 issue, above, I make this postscript as the High Court of Australia, yesterday, made its orders and published its reasons for judgment in the Gallagher case. The High Court had previously published reasons in the prior Canavan and Nash cases, which also concerned s44 of the Constitution. I would make these observations relevant to the Crown and Republic issues:

1/ There have been predictable calls for s44 to be amended to allow for dual citizens to be qualified to stand for the Parliament. Any constitutional alteration to amend s44 would have to pass the double majority required by s128. This attempt would most certainly fail nationally and, one suspects, in every State, as well.

2/ The High Court, helpfully, set out in its various reasons that the Constitution prescribes a system of "representative and responsible government", in which citizens elect representatives in the House and Senate, to which the Executive is responsible. In Australia's "Washminster" system, an MP or Senator, once elected, participates not just as a parliamentarian but, also, may participate in the executive government as a minister or parliamentary secretary. To the degree that Australians elect their local MP and their State's Senators, they are, also, electing the current or future members of the executive branch. Insofar as MPs and Senators could, ever, hold dual citizenship, then, inevitably, Australia would risk having a Prime Minister, Treasurer, Attorney-General, Defence, Home Affairs, and Foreign Ministers who also hold Russian, Chinese or Iranian citizenships.

3/ When the Australian Constitution was being debated and drafted in the 1890s, there had been, for decades, significant immigration from around the world to the various Australian colonies that would unite from New Year's Day 1901 as the Commmonwealth of Australia. Pretty much every one of the founding fathers of the Australian federation and the Constitution's framers was familiar with mass immigration, either as an immigrant or as a child of an immigrant(s). At the same time, one of the key drivers of the Australian federation movement was national security. As the High Court held in Joseph v Colonial Treasurer (1918) 25 CLR 32 at 46, "It is a matter of common knowledge that the necessity of a single authority for the defence of Australia was one of the urgent, perhaps the most urgent, of all the needs for the establishment of the Commonwealth." It is difficult to see how any case can be made, in 2018, that considerations of the effects of immigration and competing loyalties of newcomers would have been absent from considerations in the 1890s as to what qualifications may be required of a member of the House and Senate. At the same time, as one can note from (2) above, in our Washminster system, any MP or Senator may become a member of the executive. In certain portfolios, there will be reposed a very high degree of trust in, and loyalty demanded from, the executive office holder. It is very hard to see how it serves Australia's welfare to have a Prime Minister, Treasurer, Attorney-General, or Defence, Home Affairs, or Foreign Minister, with a foreign citizenship, allegiance or other obligation of loyalty.

4/ The most practicable solution to the current crisis is for all aspiring members of the House and Senate to ensure, before they nominate for the Parliament, that their citizenship affairs are in good order and that they comply with s44's requirements. It is the height of absurdity for any aspiring politician to think they should enter Parliament and make laws for the Australian people to live under, when that aspiring politician has, clearly, never read Australia's fundamental law, the Constitution. Australia has an insular political class that believes that when their members are in conflict with the Constitution's clear requirements, that it is the Constitution that should change, not our political class that should ensure their own compliance.

Finally, as a true postscript, I would add that Australia's Constitution provides in Chapter I for a House composed of members representing the interests of their local electoral divisions and a Senate composed of senators representing the interests of their States. The Constitution does not and was never intended to provide for a permanent political class, to provide career tracks (or endless loops) for politicians, staffers, advisors, lobbyists, and a host of other dubious inhabitants of the 2600 postcode. Australian politics - and the quality of our law making and governance - is afflicted, as never before, by party machines, hacks, 'introducers', and a raft of political vagabonds, for whom Parliament is merely a means to further sinecures, not an opportunity to serve Australia and her interests.

It was said of the Roman consul Cincinnatus (519BC–430 BC) that, when Rome was threatened, he left his small farm, laying down his plough so as to wield his sword in Rome's cause, and that, once Rome had been saved and the danger passed, Cincinnatus gave up power, willingly, to return his sword to its scabbard and plow, once again, his fields. The story of Cincinnatus was well known to the early American republic. The example of General George Washington surrendering the American presidency after two terms to return to Mount Vernon is, perhaps, the best example of Cincinnatus since the ancients. Nonetheless, this ancient model of political life and public service - as a vocation for serious people not a career for swamp dwellers - must return in our own times if we are to have any hope of improving the standards of our Parliament and our governance. As Montesquieu wrote in his Spirit of the Laws (1748), "The deterioration of a government begins almost always by the decay of its principles."

Australians need to rediscover not just our Constitution, and the principles on which it is founded, but, also, defend them against those whose negligence and stupidity threaten them and risk their ruin.