Mensch tracht, und Gott lacht

Thursday, February 28, 2019

Conlawprof, Voters, and Brexit

Professor AAA,

You wrote: “[I]t is absurd to support that a referendum … and, no less, a referendum in which key stakeholders such as those who had been out of the country for more than 15 years, myself included, were disenfranchised ….” It sounds like you have the right to vote—in the United States. Right? A good many people who are out-of-country for 15+ years manage to take up foreign citizenship. Likewise, in the U.S., we do not usually give a person the right to vote concurrently in two states. When a person has contacts with more than one state, our (U.S.) model is to make them designate one state as their domicile or primary residence. Otherwise, the wealthy with land or businesses in more than one state will have more than one vote (even in a single federal election) and that cannot be right. Now, perhaps, a person with citizenship in two different nations is situated differently, but it is hardly obvious why that is. It is certainly not “absurd” to suggest that a person who has exercised full voting rights in one nation might be a little hesitant to claim that he was wrongly “disenfranchised” by a second state because over the last 15 years he cannot claim that second state as his primary residence. A black person who was an American citizen and resident in Selma, Alabama could claim his denial of voting rights circa 1968 was a wrong—a dual national with full voting rights in one nation (but denied in a second nation) hardly has the same claim on my conscience.

But I suppose I could be wrong.

So, could you tell me, what action (if any) you took to secure those British voting rights that you so deeply value? Did you write any MPs? Send an editorial to a British broadsheet? Join a protest? Send money to a party sympathetic to your position? Did you bring a lawsuit, perhaps, based on the ECHR or some provision of the current EU treaty? If a law school professor is not well situated to bring such a lawsuit—then who in God’s name is? Did you do anything but grouse on Conlawprof? Anything? At least the good people of Alabama knew how to march. What did you do to protect those voting rights that you so deeply cherish?

Now you might say—“Seth, that is just counterfactual. Nothing I could have done could have influenced how the referendum was run.” Not true. The Gibraltarians have no seats in Parliament, and in normal circumstances, they would have been excluded from the UK-wide referendum. (They did not participate in the 1975 referendum to retain EEC membership.) But they asked to participate in the 2016 Brexit referendum, and they were accommodated by a special act of Parliament. The Gibraltar vote was about 19000+ for remain and about 800+ for leave. So, maybe you can see why the Government was quite sympathetic with their request?

Professor AAA wrote: “it is absurd to support that a referendum … in a country with centuries of parliamentary sovereignty, [as if that referendum] somehow counts as a truer expression of the Will of the People than something that comes out of Parliament.” I take for granted you are not counting the Queen or the House of Lords. So it must be the Commons. But constituency sizes vary widely across the Commons—and Northern Ireland, Wales, and Scotland are systematically overrepresented relative to England. Even in England, constituencies are not of equal size by population, number of nationals, or number of voters. So why a Commons vote is a superior mechanism to make any choice is hardly clear. After all—people here at Conlawprof are opposed to gerrymandering. Right? But the referendum was one-person-one-vote. No gerrymandering. And Parliament participated—the Commons voted overwhelming to delegate this question to the voters. The Commons vote authorizing and delegating the decision to the people was 544 to 53. If you believe in parliamentary sovereignty, then that permits Parliament to delegate. Sovereigns get to delegate. That has been understood since Henry VIII and the Statute of Proclamations, 1539 (31 Hen. 8, c. 8) and recently restated in Jackson & others v Her Majesty’s Attorney General [2005] UKHL 56.

Professor AAA wrote: “The blow to Britain’s role in the financial industry alone will probably be incalculable.” Really—how confident of that are you? Has there been a decline in the value of memberships on any of the major financial exchanges? The London Stock Exchange, the Petroleum Exchange, the LIFFE, etc? Have London property values plummeted since Brexit?

Professor AAA wrote in 2019: “Leaving is equivalent to taking a gigantic pile of money and lighting it on fire.” Enoch Powell wrote in 1968: “This is why to enact legislation of the kind before parliament at this moment is to risk throwing a match on to gunpowder.” (See The Telegraph.) Professor AAA, if you keep writing like that, I am going to assume that you are English, not British. (See BlakeJerusalem.)


Professor BBB wrote: “Not to mention the lies and manipulation of the Leave campaign, which just exacerbated the problem [for voters].” Notice how Professor BBB feels no need to explain what those lies were or how voters were manipulated or how significant the misinformation was. But just so there is no confusion—there were lots of people on hand to argue the other side. Look at the list. I wonder how is it that they were unable to make themselves understood in a publicly funded vote?

Who Supported Remain?
Her Majestys Government was for Remain.
The leading opposition parties were for Remain.
Most of the primary regional parties in Scotland (SNP), Wales (Plaid Cymru), and Northern Ireland (Sinn Fein) were for remain.
The Archbishop of Canterbury—Do you really need me to tell you this!—was for Remain.
The EU was for Remain.
The diplomatic community was for Remain.
Cameron, the then-incumbent Prime Minister, at No. 10 Downing Street, was for Remain, along with all his living predecessors: Brown (Is he still in the country?), Blair (Won’t he ever leave the country?), and Major (Does he think anyone in the country is listening?A man’s got to know his limitations.)
George Osborne, the incumbent Chancellor of the Exchequer, at No. 11 Downing Street, was for Remain, and he threatened the votersin his next proposed budgetshould they vote Leave. (You cannot so easily threaten voters who have a secret ballot!)
Jeremy Corbyn, the leader of the opposition, was 100% for Remain. (But no one really believed him.)
The majority of members of Parliament were for Remain. (I am using British-English here.)
President Obama was for Remain. (People did listen to him—then they voted the other way—just ask Frank Field.)
The bureaucracy and the Bank of England were for Remain. (Go Team Canada!)
The labour unions were for Remain. (What would P.J. O’Rourke say?)
Academia was overwhelmingly for Remain. (ditto)
Industry (e.g., the Confederation of British Industry) was for Remain.
The BBC and the largest part of the media were for Remain. (Where is Bill Buckley when you need him?)
All the magazines were for RemainThe Spectator excepted. (Who says Fraser Nelson cannot do anything right?)
The actors & arts communities were for Remain. (As of yet, no British headliners have emigrated. Tell Mark Steyn.)
The vast majority of student activists were for Remain. (British-English again.)
Owen Jones and all the wannabe student activists were for Remain.
Diana Mosley (had she lived past 2003) was for Remain. (Just ask Mark Steyn.)
The bar and the legal profession were for Remain. But .... I repeat myself.

Now ask yourself: precisely, who was on the Leave side?
Just some votersand what do they know?

But here at Conlawprof—we are all good democratshonest & true.


Seth Barrett Tillman, Conlawprof, Voters, and Brexit, New Reform Club (Feb. 28, 2019, 14:46 PM), <>. 


John Cunningham said...

Seth, this is an awesome evisceration. Note to self: avoid pissing off this prof.

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