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June 28, 2009

Comments

" if we're already hypothetically in a state where we have a different constitution, we can't then make the assumption that we have our current constitution, and proceed from there."

This is where Gary fell off the logical rails. The hypothesis is that the US has its current constitution. Referendum isn't constitutional. (Honduras has its current constitution. Referendum that isn't initiated by legislature isn't constitutional). US President proposes referendum to initiate replacement of US constitution. (Honduras President proposes referendum to initiate replacement of Honduran constitution.) etc

"You seem to be saying that a world in which the US Constitution allowed non-binding national referenda"

It does, or else Zogby is violating the Constitution on a daily basis. The problem in Honduras is that what the president was doing was actively prohibited by the constitution. As well as being illegal per a statute the legislature had passed.

Brett, just to be a bit more technical a referendum would be open to all voters; Zogby is just a sample of voters that says with a certain degree of confidence what percentage of voters think x (e.g there is a 95% chance that x (+ or- y) think something.

Nell, what source are you relying on re abducted mayor?

wow, this thread is still going..

It's not fair to the bulk of fine, honest attorneys out there, but there is a reason people-in-general tend to distrust lawyers. Sentences like this one - and the 'controversy' it's about - are a good example as to why:

To get him [me] to clarify I asked if "unamendable by the people" meant unamendable by referendum was not legal (eg like US Constitution).

What does that even mean? J. Canuck's original sentence was more direct:

So since the US constitution cannot be amended by referendum means it is not "legal'?

Funny that if you try hard enough to misunderstand something, you can find a way to do it. And doing so in this case served the real goal: forcing a detour away from the actual question, in the form of a discussion of Canadian constitutional arcana. Since I know little about Canadian constitutional history, I leave that to you Canadians (but would tend to trust Pithlord, since I'm more familiar with him and know him to be generally honest and of good will).

So, is it resolved that a constitution which is not only unemendable (BY ANY MEANS, JOHNNY) but illegal to even contemplate the emendation thereof, is consistent with liberal democracy? Especially when said constitution was not adopted in even a remotely republican way. I guess if you're hostile to liberal democracy, as neocons (and some conservatives) both north and south of the border tend to be, you don't care. I, on the other hand, like liberal democracy, so I care. Just cut the weaseling and say so, please.

Please don't read this as a defense, veiled or otherwise, of Zelaya in particular...

I'm still trying to wrap my mind around a "constitution" with provisions that cannot be challenged, NO MATTER WHAT. I don't know enough Honduran history to understand exactly who wrote or imposed this document, but to my distinctly non-Honduran mind, this is such a violation of basic political (human?) rights that I see no immorality in attempting to change it, regardless of its "constitutionality."

It reminds me of those dictators who, before exiting office, issue decrees that exonerate them (and their followers) in perpetuity from any wrongdoing whatsoever they may have committed. Even if they are "legally" in power at the time they issue these decrees, these are customarily regarded as meaningless by successor regimes. You cannot arbitrarily bind the hands of the future.

Under these circumstances, what is any Honduran (president or not) to do who dislikes these provisions in the constitution?

In the US, one can argue publicly for all kinds of changes, even profound ones.
- You can petition for the institution of national referenda, just to spite Gary Farber. ;}
- You can suggest that "states" be abolished, and their so-called "rights" abandoned, just to spite Brett Bellmore. ;}
- You can argue that the President has inherently all the powers of King George III, except that John Yoo beat you to it.
- You can amend the constitution by limiting the presidency to two terms, just to spite FDR, even though he's dead.

But what is a poor Honduran to do?

Please note that I'm not arguing that what Zelaya did was wise, or good, or (certainly) legal under Honduran law. I would just like someone to explain to me, in simple terms, what a Honduran who has problems with any of these restrictive provisions in the constitution is supposed to do about it.

It's unamendable with respect to term limits. That really sucks if you're a politician who's already filled his limit, but it's no more an offense against democracy than any other qualification for office. I'd say that the lengths Zelaya was willing to go to get another term, (And another, and another, one assumes.) actually shows the wisdom of term limits. Is this a guy who you really ought to trust with power? They were on to something, declaring this unhealthy interest in holding onto power as being a disqualification for office.

The unamendable equal representation of states in the Senate here is a far greater offense against democracy.

The idea of an unamendable contitution is not just undemocratic, but logically silly. In the case of the Honduran constitution (this is based mostly on what I've read here, and a bit elsewhere - I'm no expert) there are only parts that are unamendable. Does that mean it's unconstitutional to suggest changing the part that says certain other parts are unchangable, or does the unchangability reside within the unchangable parts themselves? Can you say "I'm not changing the part that can't be changed. I'm changing the part that says you can't change that other part. When I'm done doing that, I'll be able to change the part that will used to have been (it's so goofy I can't even tense properly) unchangable, but that will then be changable." If the whole constitution is unchangable, do you have to throw the whole thing out and start over? I mean, what if it says you can't throw it out, either? If you can, you could make a new one just like the old one except for the parts you want to change, or maybe just the part that says you can't change it, so you can change the stuff you don't like later. If you can't, you just throw it out anyway, since whatever it said won't matter anymore, even the part that said you couldn't throw it out. The whole concept of self-immutability can put my mind into an infinite loop if I let it. It's ridiculous.

Look at it this way: When the Articles of Confederation were thrown out in favor of the Constitution, it wasn't done in keeping with the amendment rules of the Articles, which required unanimity among the states. But they got away with it because pretty much everybody agreed it had to be done.

You can amend even the 'unamendable' parts of the Honduran constitution, similarly, if essentially everybody agrees it's important to do so. All they've done, in effect, is to set the threshold for amending those parts really high. If ALL the players agree it should be done, you can do it.

Amending those parts is at the same threshold as junking the whole thing. But that's not an infinite threshold.

Source (Spanish only) for the mayoral coup in San Pedro Sula.

Translation [corrections welcome from those more fluent]:

The legitimate mayor of San Pedro Sula, Rodolfo Padilla Sunseri, was replaced by the nephew of the illegitimate president of Honduras, the dictator Roberto Micheletti, according to what has been reported by various activists to TeleSUR news.

"William F. Hall Micheletti and nine usurper city council members shouldered aside the mayor elected by the people," said Jose Guardado, one of the social activists who was able to get in touch with TeleSUR. "We were watching over the municipal hall at 11:00 this morning," he said, referring to the thousands of people who were gathered around the city hall in support of Zelaya, "when we were driven away by shots and bombs." The whereabouts of Rodolfo Ferias [sic;? meant to refer to arrested/abducted mayor] are unknown.

The true president Zelaya, in a press release from Panama, said that at least 50
people were detained as a result of the repression, a report that was corroborated by reporter Eduardo Silvera of VTV, reporting from Honduras.

"We were in the demonstration watching over the positions at the city hall ... when a group of anti-riot police arrived; they didn't say anything to us, just began to shoot and launch tear gas bombs. Many people were wounded and they tell me that there are some dead but I haven't confirmed that. There are many people detained and disappeared," said another person.

According to different websites, Padilla received the support of 63% of the voters in the Liberal Party primary elections for mayor in San Pedro Sula in November 2008, while Hall Micheletti got 16%, leaving him in third place.

The idea of an unamendable contitution is not just undemocratic, but logically silly.

Thank you, hairshirt. That was my only point.

It's unamendable with respect to term limits.

That is no less preposterous for its particularity, completely apart from how you feel about term limits.

I'd say that the lengths Zelaya was willing to go to get another term, (And another, and another, one assumes.) actually shows the wisdom of term limits.


The wisdom of term limits is immaterial.


The unamendable equal representation of states in the Senate here is a far greater offense against democracy.

The US Senate is a huge offense against democracy, I agree. But I don't see how it's unamendable a la the Honduran. If the constitution said that particular parts of the constitution were absolutely unemendable, and that even contemplating emendation was illegal, you would have a match. I don't see anything so absurd in our constitution, thankfully. Granted, it's very hard to amend the US Constitution, but it's neither impossible nor illegal.

"Funny that if you try hard enough to misunderstand something, you can find a way to do it. And doing so in this case served the real goal: forcing a detour away from the actual question, in the form of a discussion of Canadian constitutional arcana."

I'll leave it to any interested observer to count how many of my comments on this post have not talked about "Canadian constitutional arcana".

Apparently I originally offended jonnybutter (and other Americans) because my vocabulary is different (not saying better or correct). I think of "by the people" as being one category and 'by congress/parliament ie "by the people's representatives" as a separate and distinct category.
(Thus to inject Canadian constitutional arcana- I was deeply offended when the Canadian people, as opposed to their representatives, didn't get to vote on approving our 1982 constitution.) I will in future understand that when Americans say By the People they incorporate both categories.

I actually think the Canadian experience provides a useful prism because Canada evolved into a democracy so that it is very difficult to say when we became completely self-governing independent of UK. this is relevant in that it would appear there was a compromise some 28 years ago on a constitution with the stipulation that certain components couldn't be changed.

I'm not hostile to liberal democracies. I do have an attachment to the rule of law. As sometimes happens, the two clash.

I look forward to someone with a good response to dr ngo's question.


Amending those parts is at the same threshold as junking the whole thing. But that's not an infinite threshold.

I do get that, Brett. I was being semi-funny in my last comment (but only semi-).

Brett: It's unamendable with respect to term limits.

But that's not all (quoting from above):

The following cannot be amended, no matter what: The previous article [amendment process], this article, the constitutional articles that refer to the form of government, the national territory, the term of the presidency . . ."

Term limits happens to be the issue this time, but it's not the only one.


Brett: The unamendable equal representation of states in the Senate here is a far greater offense against democracy.

WTF? Where in the constitution does it say this is unamendable?!? Obviously it is de facto, and that you may or may not consider problematic - I tend to agree with you on the substance - but there's nothing that I see that legally prohibits trying to amend the constitution to reshuffle the Senate, much less just talking about doing it. This is a bogus argument WRT Honduras.

Brett: You can amend even the 'unamendable' parts of the Honduran constitution, similarly, if essentially everybody agrees it's important to do so.

Not if even calling for a referendum is regarded as unconstitutional, subject to the penalty of "immediate" discharge from office. So far as I know, there were no efforts to round up the delegates to the US Constitutional Convention as subversives. (Of course the public didn't know they were writing a constitution, which helped!)

You don't like Zelaya, Brett; I get it. I have to admit I'd never heard of him until the latest fracas, so I'm certainly not defending him. But using your distaste for Zelaya - however justified in substance it may be (and I'm in no position to judge) - as a defense of the "unamendable" Honduran constitution is a stretch, even for you.

Before the TeleSUR account of the forcible change of mayors in San Pedro Sula, there were news reports on Honduran media that the Supreme Court had issued an arrest warrant for Mayor Rodolfo Padilla, who is a political ally of Pres. Zelaya. His crime, I think, was to begin to conduct the encuesta (consultation/referendum) on Sunday.

Here's a picture of the mayor in happier times, greeting Sec. Clinton at the airport in San Pedro Sula as she arrived for the OAS meeting there on June 1 (fresh from the inauguration of Pres. Funes in El Salvador, where her red dress was well received). Honduras' Vice President Aristides Mejia is also pictured. Any faintly legal "democratic transition" would have put him into office if/when Zelaya were impeached or put on trial.

In the TeleSUR story, the reference to the city council members accompanying Hall Micheletti is ambiguous, because golpista can mean 'coup-supporting' or 'coup-perpetrating'. That is, it's not clear to me whether they are existing city council members who support the coup government or usurpers taking over city council at the same time Hall Micheletti is taking over the mayoralty.

"Where in the constitution does it say this is unamendable?!?"

Ok, unamendable without the consent of the states being deprived of it. I did say, didn't I, that these provisions of the Honduran constitution are without any parallel I know of in other countries.

"there were news reports on Honduran media that the Supreme Court had issued an arrest warrant for Mayor Rodolfo Padilla, who is a political ally of Pres. Zelaya. His crime, I think, was to begin to conduct the encuesta (consultation/referendum) on Sunday."

Ok, that would be a crime which would, per that constitution, justify removing him from office. As well as a statutory violation. Apparently he was one of Zelaya's co-conspirators. But replacing him with a relative stinks on ice.

Sounds to me like they're responding to constitutional violations WITH constitutional violations. Not good.

dr ngo: Term limits happens to be the issue this time, but it's not the only one.

This point cannot be made too strongly. In fact term limits are the issue this time, either, except as the excuse for those opposed to the consultation vote to shriek about "dictatorship". That doesn't make it so.

It would be up to the participants of the National Constituent Assembly, if it were formed, what to put in a new constitution.

The "president making himself dictator for life" line is sheerest b.s. Zelaya is not running in November, he will leave office in 2010 with the inauguration of whoever is elected then, and any changes to presidential term limits would come long after he is out of office. There are many other aspects of the current constitution that restrict popular, democratic participation -- including, as dr ngo notes, its non-amendability.

Of course I meant to say, at 1:15pm above:

In fact term limits are not the issue this time, either, except as the excuse...

"The unamendable equal representation of states in the Senate here is a far greater offense against democracy."

It's entirely amendable so long as any given State consents.

dr ngo: "WTF? Where in the constitution does it say this is unamendable?!?"

Brett's referring to the last bit of Article 5, which spells out the amendment process. But he over-states it to an absolute, which it isn't:

Article 5:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
So Brett has something real he's referring to, but stating that the equal representation of States in the Senate can't be amended just isn't so. It's just that that one thing has a unique hurdle to jump. But it is jumpable, contrary to Brett's blanket claim.

Ok, I've tracked down the text of the referendum he proposed, and it does indeed appear he wasn't directly attacking the term limits, and that does mean that he hadn't invoked the constitutional clause that would automatically strip him of his office.

On the other hand, he clearly WAS trying to run an illegal referendum, as he didn't have the authority to put issues on the ballot, the legislature had enacted a law directly prohibiting this referendum, and the supreme court had declared it unconstitutional. And he was doing so with considerable aid from Chavez, who DID free himself from term limits by referendum, so the whole thing was rather suspicious.

No good guys in this fight, apparently. And maybe it was a coup, but if it was, he certainly was asking for it. Why'd he pick this issue to fight to the end over?

Brett, I missed that (as Gary surmised); sorry. But I still think the Honduran constitution is way over the "common-sense" line, and I still don't know what you think Zelaya - or any other Honduran - ought to do if they disagree with any of the several "unamendable" provisions in the Constitution. Just smile and bear it?

"Look at it this way: When the Articles of Confederation were thrown out in favor of the Constitution, it wasn't done in keeping with the amendment rules of the Articles, which required unanimity among the states."

I have a copy of the Articles standing right over here, and it says:

Article XIII. Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.
And right over here I have a list of each of the dates on which each of the legislatures of each of the thirteen states ratified the new Constitution after it was "agreed to in a Congress of the United States."

To quote Wikipedia:

[...] On September 17, 1787, the Constitution was completed in Philadelphia at the Federal Convention, followed by a speech given by Benjamin Franklin who urged unanimity, although they decided only nine states were needed to ratify the constitution for it to go into effect. The Convention submitted the Constitution to the Congress of the Confederation, where it received approval according to Article 13 of the Articles of Confederation.[9]

Once the Congress of the Confederation received word of New Hampshire's ratification, it set a timetable for the start of operations under the Constitution, and on March 4, 1789, the government under the Constitution began operations.

So what the heck are you talking about? There were thirteen states, and each one ratified the new Constitution. Thirteen out of thirteen is unanimous, last I looked.

Brett: I've tracked down the text of the referendum he proposed

The one in Hilzoy's post, or the text of what would be voted on in the 'Fourth Ballot Box'?

This article is a significant development:

The chief lawyer for the Honduran military acknowledges that the forced expulsion of Zelaya was ordered by the military and was a crime. The interview gives a vivid picture of the sense of political entitlement felt by the military, and their attitude to their own actions in the 1980s.

"And he was doing so with considerable aid from Chavez, who DID free himself from term limits by referendum, so the whole thing was rather suspicious."

Ah, yes, commie cooties. Good to see grand old American traditions upheld.

"So what the heck are you talking about?"

The fact that the Constitution itself said that it would go into effect when only NINE states ratified, and in fact, the new government was up and running as of March 14th, 1789, though North Carolina ratified in November of that year, and Rhode Island the next year.

Apparently I originally offended jonnybutter (and other Americans) because my vocabulary is different (not saying better or correct). I think of "by the people" as being one category and 'by congress/parliament ie "by the people's representatives" as a separate and distinct category.

But were't you imputing an opinion to me?

So since the US constitution cannot be amended by referendum means it is not "legal'?


My point was fairly simple, and perhaps I didn't state it simply enough - I definitely wasn't clear. I should have said 'legitimate' rather than 'legal'. Obviously, the liberal idea is that a government's legitimacy, and by extension its constitution, flows from the people rather than from god and/or an elite. Whether and how it is to be refracted through elected representatives is another question. That Hondurans would have a constitution thrust upon them which they are also not allowed to amend - even if it's only in a few particulars - makes the whole enterprise sound illegitimate to me.

BTW, some of the same people who, a few years ago, cried, 'the [US] constitution is not a suicide pact!' are now suddenly fastidious about Honduran law. I wonder why that might be...?


And I'm glad to see the grand liberal tradition of cutting left wing despots slack being upheld, too.

It was an illegal referendum, in defiance of statute and court ruling, to be conducted with the aid of the less than savory leader of a different country. There weren't any heros in this particular fight, so far as I can tell, and certainly not Zelaya.

And I'm glad to see the grand liberal tradition of cutting left wing despots slack being upheld, too.

As I told you before, I'd never even heard of Zelaya before. I'm totally unimpressed by your attempts to impute guilt by association with Chavez ("the less than savory leader of a different country" -- ooh! I'm scared!!), unless you are equally willing to condemn Churchill for associating with Stalin. (I would have said FDR, but I'm not sure of your position on him.)

So Zelaya is not a "hero" to me, and I never said or implied he was, and I'd very much appreciate your not saying or implying that I regarded him as such.

"Cutting" Zelaya "slack" was not the intention of my initial foray into this thread, nor any of the follow-ups. What I ask - and will now ask for the third time, since you seem to be reluctant to answer - is what you think Zelaya OR ANY OTHER HONDURAN ought to do in the face of the "unamendable" provisions of a constitution with which they disagree.

Your continued silence on this argues quite eloquently that you think they should just smile and bear it, despite its evident injustice, since to take any action at all would be "illegal."

"...and in fact, the new government was up and running as of March 14th, 1789, though North Carolina ratified in November of that year, and Rhode Island the next year."

Brett, your claim was: "When the Articles of Confederation were thrown out in favor of the Constitution, it wasn't done in keeping with the amendment rules of the Articles, which required unanimity among the states."

What the actual Articles of Confederation say: "...unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State."

And this was done. There's nothing there about any kind of time limit on how quickly "afterwards" the confirmation needs to happen. Gosh, that just isn't in the text. Are you arguing it's in a penumbra?

"...unless you are equally willing to condemn Churchill for associating with Stalin."

Of course, I immediately remember The Grand Alliance: "I have only one purpose, the destruction of Hitler, and my life is much simplified thereby. If Hitler invaded Hell I would make at least a favourable reference to the Devil in the House of Commons."

"I would have said FDR, but I'm not sure of your position on him."

I'm going to make a wild guess that Brett has some criticisms.

:-)

I'm actually curious what Brett thinks of Winston, though. And if Brett might have anything kind to say about FDR beyond, perhaps, his war leadership. Brett?

"What the actual Articles of Confederation say: "...unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State."

"And this was done. There's nothing there about any kind of time limit on how quickly "afterwards" the confirmation needs to happen"

If Articles of Confederation had continued as the US constitution I assume no amendment would have taken effect until legislatures of all states had confirmed.

"But were't you imputing an opinion to me?"

No, jonnybutter, I was not imputing an opinion to you. I thought I had detect a logical flaw in your argument and was asking a rhetorical question. Thinking I was pointing out the inconsistency, but not speaking american fluently, I had a different definition of the phrase "by the people"; therefore my rhetorical question fell flat.


"That Hondurans would have a constitution thrust upon them which they are also not allowed to amend - even if it's only in a few particulars - makes the whole enterprise sound illegitimate to me."

Certainly warning bells should go off, but I don't know Honduran history or how they got the current constitution.

“The chief lawyer for the Honduran military acknowledges that the forced expulsion of Zelaya was ordered by the military and was a crime.”

Nell, Thank you for this cite and your previous translation. I think the word "crime" in this article is a mistranslation, or different than how we would normally think of the word.

From the article the officer says: ”In the moment that we took him out of the country, in the way that he was taken out, there is a crime. Because of the circumstances of the moment this crime occurred, there is going to be a justification and cause for acquittal that will protect us.''

This is like someone saying in the case of an “assault” yes I hit him but I had a justification, it was self-defence.

Johnny Canuck: Certainly warning bells should go off, but I don't know Honduran history or how they got the current constitution.

Are you interested in knowing how they got the current constitution? Are you interested in understanding Honduran history?

Previously you acknowledged that you don't read Spanish. You were under the mistaken impression there was no impeachment provision. Yet, knowing almost none of the background, you bought in to the right-wing line on this being some grave, scary power grab by Zelaya even to the point of taking a remarkably long time to come around to the point that the rest of the world grasped very promptly:

It's a military coup whose goal was to prevent a non-binding opinion poll on liberalizing the government.

It's a relief that you've come to see how the U.S. government denouncing and failing to go on with business as usual is not meddling, particularly when done as the current administration has done it -- in concert with the member states of the OAS.

It's vital to the continuance of normal political life in the rest of Latin America for the region and the world not to allow the military to believe that it can fall back into the rule by repression -- something that was overwhelmingly common from the 1960s through the 1980s, because of consistent U.S. government and corporate support.

If it were really the case that Zelaya's proposal were so unpopular, it should have been easy to defeat it at the polls. But it's popular; that's why it had to be stopped by trumped-up, ad hoc laws outlawing referenda within 180 days of elections.

Al Giordano has the best succinct explanation I've seen of why Zelaya's actions did not trigger Article 239 (the focal point for all the instant experts on Honduran law).

The main post to which that's attached has some very useful perspective on the Honduran constitution and the current moment.

Yes, JC, that's exactly what the military's top lawyer is saying.

My point was not that he's saying, "We're criminals", but that his frank acknowledgement that this was a decision taken by the military high command and not specifically ordered by the Supreme Court cuts the legs out from under the "democratic transition" and "protecting the rule of law" line spouted by the civilian coup participants and their supporters.

This bald statement is apparently necessary for those people unconvinced by the events of Sunday on their face -- or by subsequent censorship, arrests, suspension of constitutional rights, and repression.

It's worth noting that the interview took place on the 29th; a transcript of most of it, in the original Spanish, is linked at the Miami Herald link in my comment.

Thank you for the Al Giordano link, Nell. That makes some of this clearer.

Thinking I was pointing out the inconsistency....I had a different definition of the phrase "by the people"; therefore my rhetorical question fell flat.

Okay. There was a loss in translation, I guess.


"That Hondurans would have a constitution thrust upon them which they are also not allowed to amend - even if it's only in a few particulars - makes the whole enterprise sound illegitimate to me."

Certainly warning bells should go off, but I don't know Honduran history or how they got the current constitution.

It would still be illegitimate from the liberal point of view regardless of their history. The history of this particular constitution (the reason I used the phrase 'thrust upon them') makes it more so.

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