Constitution Burning: How SCOTUS’s Conservatives Failed America

Jurisprudence, Politics

Alexander Winn

I: Introduction

When Justice Kennedy retired, creating a vacancy on the Supreme Court for Donald Trump to fill, Conservatives were salivating. Mitch McConnell’s filibustering in the Senate had delivered a suitably qualified conservative justice, Neil Gorsuch, to replace the great Antonin Scalia. To solidify a 5-4 Conservative majority, President Donald Trump nominated Brett Kavanaugh, in order to epically ‘rek’ the progs in the culture wars. Kavanaugh had obvious flaws: he was the definition of a Washington insider; he was never on the Federalist Society’s shortlist; he possessed some very concerning views about the 4th Amendment and he was an institutionalist, pragmatic judge to the core.  These flaws were completely neglected by wide-eyed Conservatives focused only at the prize at hand. With Kavanaugh passing through a nomination circus, [1] Conservatives had a once in a generation chance to permanently shift the Court’s judicial philosophy; to finally undo many of the incorrect subversions of the Constitutional order thrust upon the American people by previous years of judicial activism.

Yet on the 17th of June, 2019, the Conservative majority of the Supreme Court of the United States, composed of Chief Justice John Roberts, Justices Alito, Kavanaugh and, most regrettably, Clarence Thomas, failed the standard by which a conservative Court should rule. They failed because they sided with the Government in upholding the separate sovereign’s doctrine read into the 5th Amendment in the case of Gamble v US (2019). Neil Gorsuch was the only conservative to dissent.

To establish what a successful conservative judgement is, and to benchmark just how awful the decision in Gamble v US is when juxtaposed against this ideal standard, we ought to make clear what a successful conservative legal agenda is not. Conservatism on the Court is nowhere near as crude as guns good, abortion bad. Conservatism on the Court is not about just acquiescing to Presidential authority, nor giving the police a blank cheque to go tough on crime. Conservatism on the Court should certainly not take the form of mindless adherence to stare decisis despite the incorrectness of past precedents.

Fundamentally, a successful conservative Court is one that adheres to Originalism, a doctrine which tries to interpret the Constitution’s text in light of the intentions of the authors of the text, and those who ratified and would have understood the meaning of the text at the time of adoption. Within Originalist thought, there are two sub groups. There are old Originalists like Robert Bork who place more emphasis on the actual intentions of the authors themselves and there are new Originalists who try and use the public meaning of these texts at their ratification. The late Justice Antonin Scalia was an adherent of this latter variation. On the Court currently, Justices Clarence Thomas and Neil Gorsuch are new Originalists.

While there are valid critiques to be made of New and Old Originalism, I argue that overall these approaches provide the most solid foundation for an objective reading of the Constitution that preserves its meaning, America’s constitutional republican form of government and its citizens’ civil liberties. Anything that deviates from this approach risks politicising the Court and often leads to constitutional interpretations that destroy delicate checks and balances for the coarseness of exigency.

II: Gamble v US, the Background

Gamble v US offered Originalists a gift almost dropped from heaven. It was a case in which the appellant’s brief was almost wholly based on an Originalist understanding of the Constitution. A felon named Terrance Martinez Gamble was convicted under both Alabama and Federal law for the same offence: being a felon in possession of a firearm. He challenged the propriety of his Federal conviction on the basis that it violated his right against double jeopardy under the 5th Amendment. Under recognised Supreme Court precedent, a person can be tried twice for the same offence where that offence is against two different sovereigns, the State and Federal Governments, without falling afoul of the 5th Amendment’s guarantee against double jeopardy.  As Justice Elena Kagan opined in oral argument, she was “confused as to why the argument [that is for Gamble’s side] seemed one note.” She further dismissively stated “that some people on the bench think that is the Alpha and the Omega on every Constitutional issue.” Taking Kagan’s statements unironically and without the dripping derision, the brief provided by the appellant was extraordinarily Originalist and therefore provided the Court a crucial opportunity to explore its history. Based on an analysis of the Court’s opinion and briefs submitted by the parties to the case, in light of the 5th Amendment’s text, drafting history, authorial intent, the existing common law understanding,  post ratification treatises and State and Supreme Court precedent, it is clear that the separate sovereigns doctrine is incompatible with an Originalist understanding of the 5th Amendment, and thus ought to be rejected by a conservative Court.

Before we continue, I must mention that Clarence Thomas, an actual avowed Originalist, somehow found on the merits of the case for the Government and sided with the majority. Notwithstanding the fact that I believe Thomas is dead wrong and has misapplied Originalism in this case, he at least made a concurring judgement questioning the majority’s application of stare decisis and repeated his commitment to Originalism in general. Thomas’s views on stare decisis will be touched on later, but needless to say, Roberts, Alito and Kavanaugh failed to do even that.

III: Double Jeopardy: Context

The rule against double jeopardy is grounded in natural law. To prosecute and punish someone twice for the same offence is an incontestable and gross deprivation of liberty. The intellectual history of the development of double jeopardy is, as Justice Gorsuch rightly points out, ancient. Scholar David Rudstein explains The Talmud, a collection of ancient Jewish writings which include Biblical passages, prohibited double jeopardy. Deuteronomy 25:2 was relied upon by Hebrew authorities to prohibit flogging and killing a man when the crime only entailed the latter. The Talmud also prohibits prosecuting someone again when they have been found innocent.  The Cain and Abel story (Genesis 4:13-15) is also used as a justification to prohibit double jeopardy, namely when Cain was expelled, God prevented any further harm occurring to him on the basis that he had already been punished. St Jerome continued this tradition in Church law through an interpretation of Nahum 1:9. The KJV states “affliction shall not rise up the second time”, barringdouble jeopardy (Rubstein states that St Jerome’s interpretation of the passage may have been erroneous, but for the purposes of this article that is not particularly important, given it was widely accepted and forms part of intellectual history). Double jeopardy was also barred under Greek law as speeches as early as 335 BC reveal, and in Roman law by the maxim nemo debet bis puniri pro uno delicto – no one ought to be punished twice for the same offence – although Roman rules differed substantially from modern double jeopardy principles (Rudstein). It is thus a fundamental right, supported by the rich intellectual history of  Judeo-Christian values and Greco-Roman legal traditions.

The historical origins of how it came to England are unknown, but from the 13th Century onwards there is clear evidence of its usage as part of the common law. I recommend Rudstein’s article, A Brief History of the Fifth Amendment Guarantee Against Double Jeopardy. It provides a fascinating insight into English double jeopardy history, and how the development of the modern law was not at all straightforward. Those English principles, as they developed, crossed the Atlantic and were officially recognised by Massachusetts and Connecticut in 1641 and 1652 respectively for the first time. Double jeopardy law would from then on be an integral part of the Anglo-American legal tradition, which would continue through to the Founding.

IV: American History and Drafting

The Majority’s invocation of the Declaration of Independence is entirely perverse, so twisted from fact that Jefferson would leap out of his grave at Monticello, and ride as swift as the wind to Washington to destroy the very document he so meticulously crafted, so that it could never again be so shamefully abused. The Majority fancifully claims that if conjectures about the purpose of the text control meaning, the Government would surely win because the Declaration complained of the Administration of Justice Act, or more commonly known in the American colonies as the Murders Act[2], which allowed British troops who supposedly committed crimes in the colonies to be tried in front of a judge-only trial in Britain or another British colony. Witnesses, despite receiving some nominal compensation to travel, would be in no position to travel and testify against the soldiers, allowing for acquittals of “guilty redcoats.” Thus, so the Majority says, Gamble would have to conclude that if his rule is correct, these acquittals would have been a bar at law to subsequent prosecutions within the United States. If the Majority was to be believed, the Patriots of ‘75, at Lexington, Concord, Bunker Hill, Valley Forge and Yorktown bled to prevent foreign prosecutions. Not so! The Majority seems to forget that the 6th Amendment exists, securing a jury trial in the State or district in which the crime was committed for all criminal prosecutions, in front of a jury of one’s peers. Its text, purpose and meaning more than comfortably prevent the type of prosecutions the colonists so loathed. And even in the one in a billion chance the 6th Amendment does not prevent those trials, there would be absolutely no chance any American Court would regard a Vice-Admiralty Court a Court of competent jurisdiction or not a sham trial (which Gamble’s submission asserted was not useful to plead in bar). What the Majority has done is frankly reprehensible; to strip American citizens of their fundamental, natural, Constitutional and inalienable rights against double jeopardy, and to clothe such a deprivation in the hallowed, foundational documents that inspired millions to fight for those very rights.

Instead, as all good Originalists should, we will start with the amendment’s text. It states:

nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…”

The plain meaning of the text admits no exception, nor is the Separate Sovereigns doctrine an obvious, composite part of the amendment. Alito suggests that Separate Sovereigns is somehow part of the text, because it is the Sovereign that decides the offence, and therefore as night follows day, you cannot be tried for the same offence if they are in fact not the same offence. For this task we must inquire as to how the Founders intended the meaning of the word offence. Using Founding era dictionaries, many of which were quoted by the Majority used in Heller, Alito’s understanding is very sketchy. Samuel Johnson’s 1773 edition of his dictionary defined offence as “1. Crime; act of wickedness or 2. A transgression”. The 1783 second volume of Timothy J Cunningham’s A New and Complete Law Dictionary (Heller used the 1771 version, but this one is closer to the Founding) defines offence as “an act committed against law or omitted where the law requires it and punishable by it”. A 1753 pocket dictionary by John Bevis defined offence as “a fault, trespass or injury”. Finally, in the standard Noah Webster dictionary of 1825, written by the Founding Father and Federalist writer himself, offense is defined as, inter alia, “3. Any transgression of law, divine or human; a crime; sin; act of wickedness or omission of duty”. As can be seen, the understanding of offence was obviously connected to law – it was not somehow different because different positive law said so when the elements of the offence were the exact same. This holds true whether we are dealing with two positive laws promulgated by two sovereigns or two positive laws promulgated by separate sovereigns. Justice Gorsuch further reinforces this conclusion with historical examples of usage from the First Continental Congress. In 1778, the Continental Congress declared a person should not be tried in a State court for the same offence they were tried under a Court Martial. The Continental Congress in 1785 considered to enact an Ordinance allowing a defendant to plead an acquittal in a Maritime Court in bar for a prosecution of the same supposed offence in a Court anywhere else in the United States.  Further to that, in 1786 a Congressional committee recommended Federal control over import duties, because violations could result in prosecutions for the same offence in multiple states. Clearly, offence was not sovereign specific. Alito provides zero rebutting evidence to the dictionary or Congressional evidence, probably because it doesn’t exist. The consensus at the time was clear.

When Madison first introduced the amendments that would become the Bill of Rights to the House of Representatives on the 8th of June, 1789, two States had still not joined the Federation, Rhode Island and North Carolina, and Madison was keen for them to enter the fold. New York in its ratification documents had also called for a double jeopardy clause. In his speech, Madison acknowledged that to do this, and to assuage hundreds of thousands of Anti-Federalists, the Constitution would be amended to prevent the Federal Government abusing the powers it was given. This statement of intention must surely be given at least some weight in determining original intention by weighing up alternatives in the law. Madison in the same speech proposed the forerunner to the 5th Amendment clause. It read:

No person shall be subject, except in cases of impeachment, to more than one punishment, or one trial for the same office.”

Most relevant to the Separate Sovereign’s exception, George Partridge of Massachusetts moved in Committee to amend the provision to insert language that would move towards a sovereign specific reading. He would have added “by any law of the United States.” This proposal was knocked down. Alito tries to dismiss this evidence, but it really does provide an excellent snapshot into original intent, which he simply can’t counter using further drafting evidence. Other objections to the language lead to further amendments, because some members of the Committee believed Madison’s proposed language precluding multiple trials might preclude the operation of settled legal principles at the time that allowed convicted individuals to be re-tried on a finding of malpractice. Representative Roger Sherman of Connecticut in the debates, for instance, commented that on a finding of acquittal the Government could not get themselves a second trial, but where things appeared to allow the conviction to be set aside, a convicted defendant could get a second trial. Clearly, the drafting history of the amendment demonstrates that its purpose was to protect the liberty of criminal defendants, enshrine existing common law principles and reject a Separate Sovereigns understanding.

V: English Case Law

Our analysis now turns to English case law. The cornerstone case is Rex v Hutchinson 3 Keb 785. It concerns a man named Hutchinson who murdered a Mr Colson while in Portugal and was acquitted of that murder, and was then brought to England to be tried. All that is left of the record of Hutchinson’s Case appears as a bail notation. It reads:

On Habeas Corpus it appeared the Defendant was committed to Newgate on suspicion of Murder in Portugal, which by Mr. Attorney being a Fact out of the Kings Dominions, is not triable by Commission, upon 35 H. 8. Cap. 2. §. I. N. 2. But by a Constable and Marshal, and the Court refused to Bail him, & c.”  Rex v. Hutchinson, 3 Keb. 785, 84 Eng. Rep. 1011 (1677).”

As the Majority point out, all that can be deduced from the actual case report is that a British subject was tried for a murder in Portugal, the Attorney for the accused pleaded that the Commission established under an Act of Henry VIII did not have the authority to try the issue, and he was refused bail as was typical for murder suspects at the time. The report provides no further evidence. Alito contends that the case probably found its way to the Court of Chivalry. If it did, and if the judges found a prior acquittal barred subsequent prosecution, it would not be sufficient evidence since that Court, like Admiralty, was not bound by the common law, nor committed to the advance of the common law. However, as Alito acknowledges, we do not know which Court eventually heard the matter, so we must rely on secondary accounts of Hutchinson.

There are at least three such accounts. Alito places the most significant reliance on Gage v Bulkeley (1744) Ridg T.H. 269 which is a civil case involving a bill in Chancery where 40,000 pounds was deposited with a French banker as a security. The defendant claimed that a finding in a French Court barred this suit. In this context Hutchinson was cited. According to Gage, Hutchinson was not indicted nor was the foreign acquittal pleaded because he was brought by habeas corpus in front of the King’s Bench, and the Kings Bench before anything occured had to decide whether a commission under 33 Hen 8 c. 28 should try him again. They decided not to proceed, “very rightly and mercifully” because of prior acquittal. This was an act of grace, not binding law. The Court went on to reject foreign adjudgments in the context of common law and equity. The fairest reading of Gage certainly supports Alito’s reading, and in this context, it is difficult to fault the Majority.

In comparison, Burrows v Jemineau (1726), also reported as Burrows Jemino (1726), stated that Hutchinson prosecuted a man in Spain or Portugal (the reporters vary) and it was held that a trial or acquittal there was in good bar to further proceedings in England. These cases were also about bills of exchange in England.  Burrows clearly provides evidence for the traditional reading.

Furthermore, the case of Beak v Thyrwhit 3 Mod 194, also reported as Beake v Tirrell 1 Show 6, state that Mr Hutchinson was brought before the Court on habeas corpus, but because the King was eager to have him tried in England, referred it to the judges who determined Hutchinson could not be tried again because his prior acquittal was a good bar. Alito objects to using Beake on the basis that the remarks about Hutchinson were made by the defence counsel, not the judges that decided Beake. Gorsuch handily dismisses the argument, by reminding Alito that the Court never rejected the defence counsel’s argument and it shone light on common legal practice in the 17th and 18th centuries. The fact that it was argued by the defence counsel does not wash away the validity of the source. Alito further objects, stating that the report of the actual decision by the Court in the case, as reported in Beak v Tyrrell 3 Mod. 194, S.C., makes no mention of the Hutchinson argument either favourably or unfavourably. So, as Alito posits, Beake really proves nothing. But Beake, much like Burrows and Gage, was not a criminal case. It was a civil action, and this time based on trover for a ship which was seized by the defendant as a prize because the ship was supposedly illegally trading in the East Indies[3]. Clearly, the application of Hutchinson’s rule may not have been relevant when assessing whether the Court of Admiralty was a court of competent jurisdiction for an action in trover. That doesn’t invalidate Hutchinson’s rule as a rule of law for double jeopardy, only its application to barring civil actions. In the latter case, that is scarcely surprising given the big disparity between criminal and civil law. Hutchinson’s omission from the final report in Beak is barely surprising, nor damaging to Gamble’s case.

Additionally, I would note that external citations of cases are important corroborative evidence in determining which account of Hutchinson was most accepted at the time, and thus which account should be given the most weight by the Court. As Gorsuch notices, Gage was not cited approvingly. As a matter of fact, it was not cited in a single external treatise. In comparison, the supposedly weak, unauthoritative Beake source was cited favourably by Sir William Blackstone in the fourth volume of his seminar work the Commentaries on the Laws of England in relation to double jeopardy. Blackstone’s work is so important because it was itself widely published, distributed and read in the American colonies during the Founding Era. Every competent American lawyer had a copy of Blackstone. So seminal was his text that it stands alongside John Locke’s Second Treatise on Government as a text that influenced the Founders. Its significance in citing Beake should not be downplayed, nor ignored as Alito does. Another treatise, John Strange’s A Collection of Select Cases Relating to Evidence (1754) repeats Burrows v Jemino word for word. Therefore, the accounts provided in Beak and Burrows are more supported than that in Gage, and therefore on the preponderance of the evidence that account of Hutchinson should have prevailed.

Added to this are two other cases. R v Captain Roche (1789) 1 Leach 134 concerns a sailor that supposedly murdered John Ferguson at the Cape of Good Hope. Roche pleaded Autrefois acquit as a bar to further proceedings. The prosecution then moved to have the issue dealt concurrently with the merits of the case. The Court responded that Roche could not plead Autrefois acquit and not guilty simultaneously, because a finding on the former plea would be a bar to the latter. Roche then elected to not push Autrefois acquit and instead entered a not guilty plea, which the jury ultimately favoured. Alito asserts that because the Court had no opportunity to judge upon Roche’s Autrefois acquit plea because he withdrew it, the case says nothing at all about the issue. Gorsuch’s counter on this point is crucial. The Court, by recognising that the two could not be plead at the same time, did not say nothing. In fact, they said a great deal. If acquittal in a foreign jurisdiction was not settled as a bar, the case would have made no sense. If a prosecution in a foreign jurisdiction was not a bar, then the defendant would have no choice – he would only be able to plead not guilty. You can’t plead a bar that does not exist! The mere existence of this choice illustrates more confirmation of the rule. While not in existence in the 1789 edition of the case, footnote (a) was added by a later reporter in 1800 to Roche which quoted the rule in Hutchinson and almost verbatim repeated the defendant’s argument in Beake. Alito objects that because the footnote was added in 1800, it adds no weight to the original understanding of the 5th Amendment, ratified in 1791. This is problematic because the footnote does not redefine the rule, only supplementing the implication from the original decision, and clarifying the law as it existed when the case was initially decided in 1791.

The final case is Rex v Thomas (1664) 1 Lev 117. A man was accused of murder, but acquitted in Wales and brought before trial in England for the same offence. He successfully plead acquittal in bar of further prosecution in England. Alito objects that England and Wales were under the same sovereign at that time, and therefore the case is irrelevant. However, the operation of England, Scotland and Wales was analogised by the Founders to the new Federal system of government. Thomas is probably the weakest evidence given England and Wales did share the same sovereign at the time, but not irrelevant given its parallels to Federalism.

Therefore, the case summaries go five cases for Gamble, only one against. That would seem to provide ample authority to find a common law right against prosecution for the same offence in multiple courts of competent jurisdiction.

Before further turning to the evidence from other sources, I would like to address a very pertinent, methological point within originalism. Let’s say for the sake of argument that Alito is in fact correct about the authority of pre-ratification of English sources. Let’s just say that Roche and Thomas should be ignored entirely because they don’t stand for anything relevant. Let’s say that Gage’s account of Hutchinson is far more accurate than that contained in Burrows. Let’s acknowledge that Beake was a defence argument and of little to no value. Let’s concede that the “mountain of evidence” Gamble presented in English case authority is really a molehill, and it either does not, or at least does not clearly, support his case. Even under these circumstances the originalist analysis is not exhausted. The purpose of determining what the real common law rule was, is to provide a clear picture of what the Founders intended. Ordinarily, it will be simply sufficient to determine what the common law actually meant to determine that the Founders must have intended to codify that into the law. If the common law reflected a proposition, ordinarily it will be taken that the Founders intended to codify it; if the common law did not reflect a proposition, ordinarily it will be taken that the Founders did not intend to codify it. But what about cases in which the common law in fact did not stand for a proposition, but the Founders wrongly thought that it did? Originalists must not lose sight of the forest for the trees. The purpose of this analysis is to determine what the Founders actually intended the text to mean – the Founding intention at all times remains the paramount concern. If the Founders had an erroneous understanding of the common law, it is that erroneous understanding that was embodied in the text of the Constitution and thus relevant to the final decision of the Court.

Section 116 of the Australian Constitution provides a somewhat analogous case study. It is clear that Section 116 was influenced by the establishment and free exercise clauses of the 1st Amendment to the US Constitution and Article VI Clause 3 which prohibited religious tests for holding office. In determining a religious liberty case under Section 116, an Australian Originalist might, in light of the similarities in language, peer back into the original meaning of the free exercise clause. But that would conceal a fatal mistake. The documents from the Federalist Conventions and from Quick and Garran strongly indicate the understanding the Australian Founders had of freedom of religion as contained in the 1st Amendment was grounded in the precedent of the time, namely from a series of Mormon cases , Reynolds v US  (1878), Davis v Beason (1890) and LDS v US (1890). Whether those cases were true to what the 1st Amendment’s original meaning (and this has been questioned, but I need not answer it here) is totally irrelevant to the Section 116 analysis. In a similar way, even if Alito is right about the common law, the analysis is not foreclosed, and we move to the American understanding. Nevertheless, Alito’s case does not look good.

VI: Treatises

Alito’s treatment of the historical evidence provided by treatises is as mystifying as it is appallingly incorrect. To begin at the crux of the issue, Alito asserts that the two principle pre-ratification treatises upon which Gamble rests his case are not demonstrative of  the claim that the prosecution and conviction or acquittal of a crime by a foreign court of competent jurisdiction at common law could be pleaded in bar to another prosecution. The treatises authored by High Tory Henry Bathurst, the 3rd Earl of Bathurst and Sir Francis Buller are essentially identical in language and make the same claim. That being:

In Consequence of the second Part of the Rule, If A having killed a Person in Spain was there prosecuted, tried, and acquitted, and afterwards was indicted here, he might plead the Acquittal in Spain in Bar; because a final Determination in a Court having competent jurisdiction is conclusive in all Courts of concurrent jurisdiction.”

Both treatises go on to cite Hutchinson for the proposition. From the plain reading of the quotations it would seem very clear, Gamble’s rule is the rule. But Alito claims these treatises are really only relevant to the preclusive effect of a foreign judgement in civil proceedings, namely that an acquittal in a foreign jurisdiction will force the Courts in a civil context to assume the defendant is innocent, thus defeating the purpose of proceedings. So we are told Gamble was convicted, not acquitted, and thus the treatises provide no support. But even if is true that Hutchinson and Buller are citing Hutchinson to try and argue for the preclusive effect in a civil trial, it is also true that they are citing acquittal in a competent foreign jurisdiction as a bar to a subsequent prosecution as a common law rule, which is the only relevant part for Gamble’s argument. Alito might be entirely correct that their argument in relation to civil preclusion is bogus. Still, it would not matter because the treatises by their plain text and meaning are citing an ancient common law, which stands despite possible relevance to other tangential areas.

Next, there were several other pre-ratification treatises cited by Gamble. Blackstone states quite clearly that the plea of autrefois acquit is a “universal maxim of the common law of England.” As a consequence “where a man has been found not guilty upon any indictment or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime.” As discussed previously he cites Beake which directly raises issues for the separate sovereigns’ doctrine. Rather than reading Blackstone into a ‘flyspeck’ as Alito asserts, Gamble reads it completely correctly. I suppose the Supreme Court has directed us to just totally ignore footnotes. I wonder how much detail would be missed if we applied the same rules to their own judgements! William Hawkins in the second volume of his Treatise of Pleas of the Crown (1721) states that the rule was well settled (that is by 1721), that an acquittal in Wales would bar a subsequent prosecution in England and cites Thomas. As mentioned previously, John Strange’s treatise also supports Gamble’s contention.

Alito’s treatment of post ratification treatises is even worse. Alito basically airbrushes any post-ratification treatise aside because ostensibly, post-ratification treatises can only be used to substantiate a wealth of pre-ratification evidence. According to Alito, because the latter does not exist, the former should just be ignored. This is by far the most bizarre part of the whole judgement. Firstly, as Gamble rightly pointed out at oral argument, two of the post ratification treatises, Chitty and Starkie, were used by Scalia in Grady v Corbin. If they are good enough for the great Scalia, they should be good enough for Alito. Not so apparently. Secondly, Alito’s distinction between Heller and Gamble is absurd. As we discovered above, there certainly is evidence for this pre-ratification rule, and plenty to engage in an analysis of post ratification treatises. But furthermore, one of the treatises, William Rawle’s A View of the Constitution of the United States (1825), a post-ratification treatise, was cited in Heller as an important authority to establish an individual right to keep and bear arms, but is totally ignored by Alito. Are we to take it that William Rawle, appointed as the district attorney for Pennsylvania by George Washington, knew exactly what the original intent of the Constitution was with respect to the right to keep and bear arms, but was too incompetent to even understand the basic common law rules of double jeopardy and the original intent of the 5th Amendment? I think not.

Furthermore, Alito proffers up no evidence as to what factors could have resulted in a hypothetical shift in the common law from the late 18th Century to the early 19th Century. To the credit of the collectivist righters viz a viz the 2nd Amendment, they at least provide a somewhat plausible (but not correct) explanation that the 2nd Amendment’s understanding was transformed into an individual right to self-defence in the Jacksonian era. Alito cannot even produce that. I suspect that is because there is not a single shred of historical evidence to proffer evidence these 19th Century treatises departed from the prior 18th Century common understanding. Indeed, the breadth of sources on both sides of the pond Alito simply elects to ignore is staggering. The 19th Century sources supporting Gamble’s argument include; Rawle, Kent, Seargent, Mansfield, Wharton (twice), Russell, McNally, Starkie, Chitty and Deacon. Including pre-ratification treatises, the score for Gamble shifts to 16. The number of treatises that support the sovereign specific understanding Alito advanced? Zero. As Gorsuch notably points out, the Government nor Alito can bring themselves to provide a single treatise that explicitly supports their interpretation of the common law, so are left to nitpick or just flat out ignore.

VII: State Cases

Next, Alito’s majority wades into post ratification State Court cases. Most of the State authority focuses on prosecutions for counterfeiting under State law where the state also had concurrent jurisdiction with the Federal government over the same issue.

The first of these counterfeiting cases is The State v Antonio (1816) 2 Tread. 776., decided by the Constitutional Court of Appeals of South Carolina, supports Gamble’s contention. In relation to double jeopardy, Colcok J said that notwithstanding the concurrent jurisdiction over the issue, it would simply not be possible to try a man twice, firstly, because “comitas gentium” every civilised nation discharges one accused of a crime that has already been tried in a Court of competent jurisdiction. He questioned why, if this notion prevails between strangers (foreign nations), why wouldn’t it apply to those who are “so intimately bound by political ties”? Colock further stated that a guard was contained within the ”7th article of amendments to the Constitution” [4]. The judgement gives us a clear view into the early understanding of the law. Prosecution in a court of competent jurisdiction was a good bar at common law to the prosecution of the same offence, and the 5th Amendment was understood to further supplement that rule. Grimke J in concurrence repeated the rule that “a prisoner could plead autrefois acquit as a good bar to the second prosecution because a determination in a court of competent jurisdiction must be final and conclusive on all courts of concurrent jurisdiction.” He cited Roche for the proposition, further providing confirmation that Roche accurately reflected the common law rule.

The only dissent comes from Nott J. Nott J asserts that a conviction or an acquittal in one court would not be a bar in the Federal courts nor those of the states because each will insist in enforcing its own law to prevent the ousting of that jurisdiction. However, Nott then argues they ought not to have concurrent jurisdiction because it would allow a person to be fined and imprisoned Federally and then hanged for the same offence at the state level, which is both “contrary to the express letter of the constitution and eternal and unerring principles of justice.” The dissent is contradictory and almost agrees and disagrees with Gamble simultaneously. It seems to say that it is not a good bar, but trying someone at a state and Federal twice violates the Constitution. Regardless, the majority holding absolutely supports Gamble and confirms Roche.

Next, the Vermont case State v Randall (1827) WL 676 adds little, merely repeating that the issue of concurrent jurisdiction for criminal offences is illusory rather than real given the court that has the first jurisdiction will retain jurisdiction until a decision is made, and once made will be a bar to the prosecution of the same offence in another jurisdiction. It thus uses an example of theft of items where a person carries stolen items across multiple counties, that person is liable in all, but a successful prosecution in one puts an end to prosecutions in any others.

The Michigan opinion of Harlan v the People (1843) 1 Doug 207, and the Massachusetts opinion of Commonwealth v Fuller (1844) 49 Mass 313, cover much the same ground. Both show that successive prosecutions between the Federal and state governments for the same offence are barred by a successful prosecution in one jurisdiction. Both cases cite Houston v Moore (1820) for the proposition (more on that later). In Fuller the principle is described as a well established principle of law. In Harlan, successive prosecutions are necessarily barred because of the mere existence of concurrent jurisdictions. Although Harlan possibly opens the door by acknowledging that the above would be the case even if it did not come within the express provision of the 5th Amendment, it does not rule on those grounds, and thus certainly does not preclude the 5th Amendment. It does however reflect the common law, which itself influenced the 5th Amendment, notwithstanding that Harlan does not expressly acknowledge that fact. Thus, four of the counterfeiting cases support Gamble’s reading of the double jeopardy clause.

Against this, the majority have two cases. Hendrick v Commonwealth (1834) 5 Leigh 707 is another counterfeiting case from Virginia. Daniel J stated that:

It was argued by the prisoner’s counsel, that the judgment ought to have been arrested, on the ground, that the courts of Virginia ought not to punish, criminally, any forgery committed of the notes, bills, orders or checks, of or upon the bank of the U. States; because this is an offence punishable by the courts of the U. States; and if a state court, which cannot oust the courts of the U. States of their jurisdiction, should proceed, it might happen that a person might be punished twice for the same offence. The answer to this is, that the law of Virginia punishes the forgery, not because it is an offence against the U. States, but because it is an offence against this Commonwealth, committed within its limits; and the punishment of it is designed for the protection of our own citizens.”

However, this argument can be plausibly construed as simply an argument for concurrent jurisdiction rather than a sovereign specific reading. But even if the latter is a better reading of this passage, no authority is cited whatsoever by the judgement, and it remains just dicta against the weight of other authority. The Court also relies on dicta in The State v Brown (1794) 2 N.C. 100, the earliest of the case authorities. The case concerns a person who stole a horse in Virginia and brought it to North Carolina. The Court’s actual holding was that a horse being stolen in one territory or state and brought into another does not make it a felony in the latter state or territory. The Court, using a hypothetical, stated in dicta that a sentence in North Carolina was not pleadable in bar to one in the Ohio territory. Thus an offence made for an offence against North Carolina was no satisfaction for the offence committed against the laws there. The Court further noted that the consequences of trying him in North Carolina would be to allow the man to “be cropped in one, branded and whipped in another, imprisoned in a third, and hanged in a fourth; & all for one and the same offence.” It is because that outcome was so repellent to what the Court considered natural justice that it was held the man could not be prosecuted for that offence in North Carolina because that is not where the felony was committed. As Gorsuch nimbly points out, the principal case Alito relies on uses an understanding of the meaning of offence that Alito rejects. The judges in the original case would have viewed the whole affair in the most disgusted way.

Therefore, the tally for early State Court precedent stands at four supporting Gamble, two opposing him (and barely even that).

VIII: Early SCOTUS Cases

The first two early cases that looked at the double jeopardy clause adopted the understanding that a conviction or an acquittal in a court of competent jurisdiction in one state or nation was a bar to prosecution in another. In US v Furlong (1820), various Americans were indicted for piracy on a British ship and the murder of a British subject thereupon. The Court held that the jurisdiction to hear matters of privacy was universal among all nations. Piracy is an offence against all, punishable by all. The Court stated that “there can  be no doubt that the plea of autrefois acquit would be good in any civilized State, though resting on a prosecution instituted in the Courts of any other civilized State.” At first it would seem quite conclusive that Furlong supports the rule. But the very next lines discuss murder and state that it would not be able to be pleaded in bar in Britain. It would seem the case has unravelled. That is until the Court’s reasoning is properly analysed. The Court said in a footnote that the Courts of the United States do not have the jurisdiction to try murder of a foreign subject onboard a foreign ship. The rationale is provided further down the case, in which it is a crime too abhorrent to come under this universal jurisdiction and hence prosecuting it under the American jurisdiction was not allowed. Essentially the Court found that for the offence of murder of a foreigner of a foreign ship, American Courts did not possess competent jurisdiction, and thus the decision could not be pleaded in bar, which is totally consistent with the common law rule.

Adding to Furlong, there is Houston v Moore (1820). The case concerned a statute of the state of Pennsylvania which criminalised refusal to serve in the militia when called into actual service by the President by non-commissioned officers or privates of that said militia. The penalties proscribed in the statute were those defined in a 1795 Act of Congress. Alito states that this case still supports a separate sovereign reading because it was a peculiar case where the State was being empowered to prosecute someone for a Federal offence, the elements of which were defined at the Federal level. Thus, it is the State and Federal government punishing someone for a Federal crime, something that complies with his reading of the 5th Amendment.  The state offence was ostensibly the same offence as against the general government to be sure, but it was still defined and punished at the State level by a very similarly worded statute. Whether the ratio still supports Alito’s version is questionable. But even giving Alito the benefit of the doubt, as both Ginsburg and Gorsuch make abundantly clear, the rationale and language in Justice Washington’s majority, and Chief Justice Story’s dissent, is very general and certainly not contained to the peculiar facts. Justice Washington’s words were to the effect that if the jurisdiction of two Courts are concurrent, the sentence of either conviction or acquittal would be pleaded as good bar to the prosecution in another. Washington further elaborated that a judgement in a civil case in a State Court of concurrent jurisdiction would be a bar for the same cause of action in the US Circuit Courts. The rationale clearly is not restricted to the peculiar situation Alito suggests, but rather encompasses the traditional common law rule. Joseph Story was even more scathing, declaring double jeapardy to be against the manifest intent of the act of Congress, the principles of common law, and the genius of our free government.” Houston stands with Gamble, not Alito. On the early Supreme Court precedent, two support Gamble, and none support Alito’s reading.

IX: Stare Decisis

So now that it has categorically been proven that the separate sovereign’s exception cannot stand on an Originalist understanding of the Constitution, the majority stands on stare decisis. In this regard, Clarence Thomas’s concurrence gets it right, as we shall see from an analysis of everyone’s favourite Founding Father, Alexander Hamilton’s Federalist No.78. Hamilton could not be clearer; the Constitution is itself the supreme law of the land. He declares:

It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

So, there we go. The judges should regard the Constitution in and of itself as the supreme, fundamental law of the land. Judges are only invested with authority to act as an intermediary between the people and their representatives, and to uphold the will of that people as it is expressed in the Constitution’s text by discovering that meaning. Anything beyond that commission is a usurpation of powers undelegated to it, and thus illegitimate. The function of the Courts is not to make incorrect decisions and preserve that erroneous precedent forever despite the Constitution. I would also observe that Federalist 78 pre-supposes the Constitution to have a fixed, intelligible meaning. If it did not, Hamilton’s vision of judicial review would be totally impossible, given that judicial review is a process of discovery, not making the law up as you go along.  Therefore, meaning does not change with the times, unless and until the people themselves through the amendment process contained in Article V ordain to do so. If the Founders wanted a fluid system, they wouldn’t have even bothered with judicial review. Rather, they would have copied the British template of reserving the decisions for the legislature. They chose not to do so with the clear intent that the American Republic would be one of laws, governed within defined, precise limits. This is especially pertinent to civil liberties. Hamilton again makes it clear, by stating:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”

Judicial review, the ability to interpret the text of the Constitution, with the text of the statute, and to then declare upon the validity of the latter, was seen as an essential bulwark of the liberties of the people. If the final interpretation was just handed to the very same legislature that promulgated laws contrary to it, the Constitution may as well be an arcane parchment barrier, good for nothing except for 5 minutes taking up the gold-fish level attention spans of school-kids on mandatory excursions. The Founders had sufficient political nous to understand that handing the fox the keys to the hen-house was perhaps not a great idea.  Similarly, judicial review would be totally useless if it meant the Courts abdicated their duty to protect Constitutional liberties by deferring to old, freedom crushing decisions. Originalism is not, as Michael Kirby put it, a “quaint ritual of ancestor worship.” It is the eternal vigilance of the night watchman tasked with guarding the freedoms of the citizenry.

Clarence Thomas’s concurrence for all intents and purposes, was just a rewrite of Federalist 78, perhaps with less of a focus on civil liberties. The mere fact that fidelity to the Constitution represents an extremist view demonstrates just how far the American Republic has fallen. Now, I will admit, stare decisis has some applicability to an originalist. As Thomas notes, if after analysing the text, purpose and historical record there is still sufficient ambiguity as to the correct answer, then stare decisis becomes very important in determining among several possible meanings which is the best. Stare decisis is also essential insofar as common law and equity principles are concerned, but as Clarence Thomas points out, that is because the source and mode of execution of that law differs substantially from that of the Constitution. I would add a further caveat by pointing to reliance interests as a notable exception to these principles. If reliance interests are so great, that reversal by the Courts would ruin the system, the breach of the Constitution may just have to be lived with. For example,  if (and I am not saying these things actually are breaches, I am merely using them as often used hypotheticals) the Constitution as originally intended only allowed  the usage of coins made from gold and silver and not paper money, or barred the creation of a Federal air-force, the reliance interests at stake are so great, and reversal so severe, that it simply cannot be countenanced. John O’Higgins for the Federalist Society also poses the same points in relation to the Commerce Clause, and invokes famous Old Originalist Robert Borke in arguing that it would be highly undesirable to undo all that precedent all at once. I do not think this caveat opens up a can of worms; the reliance interests that would suffice to clear this bar are very, very high. The rule for stare decisis is neatly summed up by Thomas, namely that stare decisis should not be invoked when precedent is clearly erroneous.

Kavanaugh, during oral argument, invoked stare decisis being founded in Federalist 78, and that is somewhat true. Hamilton does observe that the reason judges need permanent tenure is because specialist knowledge and experience is necessary to understand the “voluminous volumes of cases” which are the “inconveniences connected with free government” and hence “indispensable that judges be bound by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” What Hamilton is referring to is the obvious necessity of stare decisis in the context of resolving disputes through equity, common law and perhaps statute at a Federal level [5]. Recognising the rich importance of stare decisis in a common law system does not entrench those principles in the very different field of Constitutional interpretation, nor suddenly nullify what Hamilton had to say all of five or six paragraphs beforehand.

But let’s be even clearer, stare decisis is most often used as a political weapon, a smokescreen to cover up the insidious transfer of power from the people to the black-robed oligarchy. Stare decisis is also just simply ignored when it favours a supported position. Justice Breyer for instance recently sounded the alarm over Conservatives overruling precedent in Franchise Tax Board of California v. Hyatt (2019), but was more than happy to overrule years of precedent in Herrera v Wyoming (2019). If stare decisis was the key determinant we would still have Plessy v Ferguson (segregation) and Korematsu (internment of Japanese Americans). I just have to wonder how many liberals will rush out of the woodwork to defend Oliver Wendall Holmes’ infamous decision in Buck v Bell (1927), that allows the sterilisation of people against their will without due process of law. None? Most definitely. Let’s be real, the loudest invokers of stare decisis often do so because it supports their favoured position, not because it is a genuinely objective force to shape law. As soon as precedent is unfavourable, crickets. That goes for the Conservatives that invoked stare decisis too to uphold separate sovereigns, when they overturned precedent again in Knick v. Township of Scott, Pennsylvania (2019) and Hyatt.

X: History of Separate Sovereigns and Implications for Today

So what history did the Court uphold? Well to start, separate sovereigns was not by Constitutional design, it was a very grotesque accident of convenience, and oh boy is the history ugly. The doctrine first started in Fox v Ohio (1847), and continued in Moore v Illinois (1852) , in which the appellant lawyer argued that the traditionally understood rule was problematic because it would cause a race to the courthouse where a prosecution in one jurisdiction would bar another, and this would lead to the States ousting the Federal jurisdiction. Although Fox was yet another counterfeiting case, the concern was primarily over slavery, namely that States would seek to subvert the Fugitive Slave Act, and either acquit, pardon or lightly punish offenders, and therefore oust the Federal Governments jurisdiction. This was nullification in action. The issue was then addressed squarely by Moore which was a slavery case, and it cemented the doctrine into the law.  The separate sovereigns doctrine was integral to the preservation of the institution of slavery. The Fugitive Slave Act 1850 was one of the most divisive and ugly pieces of legislation in American history, and directly contributed to the Civil War. The doctrine invoked yet again as ratio in US v Lanza (1922), but this time it was the roaring 20s and the Federal Government’s problem was States potentially nullifying the Volstead Act (prohibition), so they again, for totally policy reasons (and bad ones at that) found a way. This is compounded by Lanza’s council being pathologically incompetent to the point that the United States were effectively the only party adequately represented at trial. Is this history really worth defending? Of course not, but to quote Dr Malcolm from Jurassic Park (and I may have slightly misheard the line) “SCOTUS finds a way.”

The implications for the present day are also by and large very unpleasant. While it is true that the separate sovereigns doctrine was used to prosecute violators of African American Civil Rights in non-sympathetic states, such as the officers involved in the Rodney King beating, several things must be noted. Firstly, the Blockburger rules make invoking separate sovereigns as a necessity all but irrelevant for Federal civil rights cases, as Justice Ginsburg indicated at oral argument. But even if it was, and this may be a very hard pill to swallow, to an extent civil rights must be afforded to people, even those we despise, even where that might result in a temporary injustice to defray even greater injustice down the road. Consider that for every civil rights case that gets successfully litigated under the doctrine (and could not be litigated even under Blockburger), minorities are open to being prosecuted at increasing rates for violations of state and Federal laws criminalising non-violent offending, and for offences very much like those Terrence Martinez Gamble are languishing in jail for. It was suggested by the government that if Gamble won his case, the Federal government might find it much harder going after marijuana users and dealers. I would weep if that were the case! Indeed, at present there are 100 dual prosecutions per year. Conservatives can then hardly complain of the Behemoth Washington state, one which the Court helped create through expansive, non-originalist interpretations of Federal powers thathave  now allowed the Federal government to intercede itself into the lives of its citizenry in a way unimaginable to the Founding generation. While Thomas was wrong on the merits of the case, he was most certainly right that the Framers would have found it almost inconceivable the Federal government could, with the blessing of State authorities, even be able to dually prosecute 100 people, let alone have such far reaching authority into areas presumed to remain exclusively under State jurisdiction. Perhaps it can be said that 100 double prosecutions per year is not significant (although I think those incarcerated under both sovereigns may beg to differ), but that is only because of Federal largesse. If the Federal government so chose, many thousands more could be prosecuted each and every year, and frankly, how the political winds blow from one Administration to the next is not a solid argument to cement constitutional doctrine, nor should fundamental civil liberties, of all things, be dependent on it.

XI: Conclusion

So far, I have only lambasted the Conservative bloc, but the knowledgeable reader would note the decision outcome was 7-2, with only Ruth Bader Ginsburg dissenting from the Liberal bloc, the rest of whom also joined Alito’s majority.  That is disappointing, too, and in an ideal world everyone would be an Originalist and decide cases using that philosophy. But realistically, we don’t live in that world, and it must be taken as a given that those on the completely opposite side of politics will have a completely different Constitutional interpretive philosophy and benchmark themselves differently. While I think they also failed a living constitutionalist benchmark, that is an article for someone else for another time. Living Constitutionalists are not something Conservatives can control, but Conservatives can control who they nominate to the Court, and must generally demand better.  The media’s reaction was even more pathetically predictable, with MSNBC, CNN, the Washington Post, the New York Times and Fox News running clickbaity headlines about the Supreme Court striking a blow to President Trump as if  every decision can simply be distilled down to how to best #resist Mr-Russian- Agent- Bad-Orange-Man-Donald-Drumpf SNL style! This just goes to show how pathetic the American political soap opera really is. Returning back to the Conservatives, in Gamble they delivered a decision not justifiable by the text, drafting or authorial intention, English common law, treatises or early State court and Supreme Court decisions. They delivered a decision which will enshrine great injustice and deprive liberty from many future generations. It was a decision so bad as to be almost unbearable for a free people.

Footnotes

[1] I need not delve into the allegations here as I am sure the reader with all the facts available can judge for themselves and, further, it really isn’t very relevant to the point anyway.

[2] The Murders Act is not the real name of the Act, only the moniker the American colonists referred to the Act, as one of five laws referred to as the Intolerable Acts.

[3] Trover is a civil claim for conversion of property.

[4] When Madison proposed the amendments to the House there were more than the 10 we know. Madison’s proposals were whittled down to 12 by Congress, of which 10 were approved and ratified by the states into what we now call the Bill of Rights. The first approved by Congress were not approved bar the second proposal which would eventually become the 27th Amendment, thus explaining why Colcok referenced the 5th Amendment as the 7th.

[5] It must not be forgotten that Federalist 78 talked about the entire Federal judicial project, not just Constitutional law.

Capernaum And The Grinding Hell of Poverty

Film

Christopher Nebe

When considering the vast array of foreign language cinema released every year, it is difficult for newcomers to find and watch some of the incredible films released. It is even more difficult to see these films when they are overshadowed by those that dominate the spotlight. With Alfonso Cuaron’s Roma winning a plethora of awards, including Best Foreign Picture at the Oscars and Hirokazu Kore-eda’s Shoplifters winning the Palme d’Or, the other nominees in these categories, and those films unfortunate enough to not receive any such recognition, are buried beneath the mountains of praise bestowed upon Roma and Shoplifters.

Capernaum, a Lebanese film directed by Nadine Labaki that was nominated for both the Palme d’Or and the Best Foreign Film Oscar, deserved more attention then it got. The film itself is a powerful character study of the life of twelve-year-old slum boy Zain El Hajj (Zain Al Rafeea), in Lebanon’s capital of Beirut. The film shows parts of Zain’s life in flashback, chronicling his hardships, his eventual imprisonment and his attempt to sue his own parents for neglect. The film has a powerful message at its core, one that wants and needs to be heard.

Capernaum excels in creating a disgusting, upsetting world. The slums of Beirut feel gritty, filthy, and most importantly: lived in. This is in stark contrast to other modern films, in which people roll in the dust and come back up freshly laundered – here the grime covering the characters feels authentic. Zain is only ever truly clean a few times in the film – the breaks in between bathing are so long that Zain becomes a small ball of sweat, dirt and tears. The sound design fills the world with vibrancy and authenticity. Every moment feels as if it is really happening – even moments as innocuous as Zain and his siblings selling juice on the street are set against the backdrop of the hustle and bustle of a teaming, unwieldy metropolis. Sounds emitted by cars, passers-by, and all manner of unknown sources come together to remove all artificiality and add a diegetic layer to the film. The score is not as impressive as the film’s sound design. Mouzanar’s score is rather understated, disappointingly only coming into play in a major way a handful of times. These times, though, are some of the most emotional of the film. An emotional swelling of the score enhances the moment and brings home the vast tragedy unfolding before us. And when these moments give way to silence, the effect is striking.

Christopher Aoun’s cinematography mostly focuses on medium hand-held shots. Through this, Aoun brings the viewer right into the space of the film, lending it a documentary-like realism. And the film does feel real, almost as if the viewer is peering voyeuristically into this poor boy’s life. Long shots hold onto Zain as he explores his dilapidated environment – we see him walking along the side of the road with Yonas, or  watching the theme park’s fading Ferris Wheel with longing. The film isn’t afraid of these personal, intimate moments. The focus of the viewer is entirely centred on Zain and the emotional weight of what he has to deal with. These shots create an entrancing connection between the viewer and the visuals that builds empathy for Zain and his situation.

Al Rafeea does an incredible job, with the film centring on his personal experience, Rahil’s tangential arc and the flashbacks to the trial. Zain is the heart and soul of the film that the viewer connects to. Whenever the film takes a moment to show Zain shed a few tears, the audience’s heart hurts for this child and his struggles. The film is at its best when developing Zain’s struggle and how chaotic and hellish his life is. The best relationships in the film also revolve around Zain. The dynamic between Zain and his sister Sahar (Cedra Izam) is sweet and helps the viewer understand Zain’s motivations for running away. Zain and the baby Yonas provide an intensely understandable struggle that is both fascinating and heartbreaking to watch as Zain and Yonas fight to survive.

One of the film’s biggest drawbacks, however, is the narrative structure and second act of the film. The investment I specifically had was in Zain. When the film undercut his future actions by opening with the court case, it took the impact out of his eventual arrest because it was not only expected, but incredibly predictable as to who he was going to stab. The film also struggles whenever it isn’t following Zain, primarily in the second act which heavily follows Rahil’s character as she attempts to get herself identification papers. While this is important for the message of the film, it isn’t nearly as interesting or impactful as Zain’s later situation where he solely cares for Yonas. It is this section where Zain cares for Yonas that has the most emotional impact and connection to the film’s overarching message.

The film’s central theme is exhibited by the name of the film itself: “Chaos.” Through its heartbreaking case study, it aims to paint a portrait of a chaotic world, one marred by the unrelenting and uncaring indignities of poverty. Zain’s attempt to sue his parents for neglect serves as an allegory for the poor and underprivileged speaking against an oppressive system: “Imagine having to feed your child sugar and water, because you have nothing else to give them.” The film doesn’t vilify any specific person; rather, characters such as Zain’s parents are given a platform to explain their own situations to remind the audience that they too are capable of suffering.

It also showcases how in this situation the neglect is seemingly incomprehensible in scale: early on, one of Zain’s infant siblings is pictured with a chain around their ankle to prevent them from straying too far from their space whilst the parental figures grind drugs into fine powder. Later, while Zain cares for Yonas, he too finds the need to take a rope and tie it around Yonas’ ankle, just as his parents had done before.  This serves as a commentary on the intergenerational violence that poverty wreaks on a soicety. Those in extreme poverty neglect their children out of the pure necessity of needing money to feed themselves and said children. It’s Zain’s small chaotic life and those around him that is the synecdoche for the chaos of the entire world.

The film also strengthens this disparity with the recurring symbolism of identification papers, the physical representation of existing. Characters are often maligned for their lack of papers, symbolising their separation from the people: they are ‘undeserving’ and ‘unqualified’ for identification papers. The characters are always in limbo, unable to obtain a better or more secure life due to their lack of identification, stuck in a place where they are desperately trying to scrape together enough money to live.

An issue with the film’s central themes, however, is the conflicting nature of Zain’s lawsuit and the portrayal of Rahil and Yonas’ reunion. The film condemns Zain’s parents’ neglectful actions despite showing that there are reasons for their choices and motivations that place blame on the wider social system rather than themselves. It still portrays Zain’s parents as cruel, through their language and their contemptable actions. This is in direct juxtaposition to Rahil, another poor, immigrant mother without identification papers forced to leave her son Yonas in his basket in the toilet of her workplace as she works. She is barely able to afford food and rent, steals cake for Yonas’ first birthday, and intentionally leaves her infant with a young vagrant child. Despite this, she is seen as sympathetic and their reunion is portrayed as a happy and beautiful moment. Though the film unintentionally undercuts the impact of Zain’s parents’ actions and their narrative purpose, it actively asks the viewer to buy into the chaotic world of the film. By developing the idea of chaos by portraying a similar situation as positive, it muddles the waters as to whether it is always morally wrong to bring a child up into a world of poverty.

Capernaum showcases the pervasive injustice faced by poverty-stricken people. Labaki’s portrayal of a chaotic world is both powerful and realistic, a reflection of the lives of not just those in Beirut’s slums, but of all who live in injustice. This is a film with a powerful voice that demands to be heard, a heartfelt synecdoche for the unrelenting and unfair chaos of our world that I recommend everyone watch.

Where Is That Tiny Ripple of Hope?

Politics

Maxim Salvador Otten-Kamp

I want to preface my case today with an admission. Not one of guilt, but one nonetheless. I am a card-carrying member of the Australian Labor Party and member of one of their notorious factions. But, let’s get started.

On the 18th of May, we were shocked by the election results and the Liberal-National Coalition’s shock win. Scott Morrison, a man that campaigned on almost no policy platform, would be Prime Minister another day. For Labor supporters, it was a crushing blow. As one of the hundreds of Labor supporters across the state that devoted hours upon hours to door-knocking, phone calls, and speaking to thousands of constituents, it was deeply disheartening. We thought we had this one. We thought that the years we had devoted campaigning for a better government would not be for nought.

The election results came in late in the night. I had spent twelve hours at my booth and hoped to end the day seeing a wind of progressive change sweep Australia. Instead, entering Labor’s election night watch party, I was told not to look at the screens. The room was filled with the sight and sound of people grieving. Some young, some old, small business owners, unionists, university students, retirees, and of course, our candidate.

We weren’t hurting for ourselves. We were hurting because we felt we had missed a real opportunity to make our country a better place. One of our candidate’s key election promises was to upgrade and renovate the Logal Hospital. Disregarded for so long under successive Liberal governments, wait times in the emergency department could sometimes be as long as five hours. That upgrade and renovation was no longer possible. And we knew that this was a life-or-death issue for poor families in the electorate. Those were the kinds of stakes we faced at election. And those were the kinds of challenges that would go on being ignored by our current federal government.

The shock of the night brings the Brexit referendum result and Trump’s victory to mind. But of course, with hindsight, the signs of our impending loss are so clear now. We never countenanced just how effective Scott Morrison’s fear campaign would be. For example, we thought Australians would laugh off Scott Morrison’s dark warnings of a Labor introduced ”death tax.” Labor had no plans to introduce an inheritance tax in government. But it resonated with voters.

During the last week of the campaign, I spoke to a lifelong Labor voter when door knocking. She asked me: ”Why is Labor not looking out for the little guy? What’s this death tax proposal?” I remember feeling shocked. Where had this idea come from? Who was behind it? I quickly reassured her that Labor had no plans to implement a ”death tax” in office. But there were thousands of voters we never managed to reach.

This wasn’t the only factor. United Australia, One Nation and the Greens ate the Labor primary vote and many preferences flowed straight back to the Liberals. Across Queensland, United Australia and One Nation protest votes regularly worked to the benefit of LNP candidates. The Greens targeted Labor in seats they felt they could win, targeting Labor Left’s Terri Butler with a strong insurgent campaign. Labor was forced to commit resources to defending seats like Griffith, resources that had to be diverted from target seats like Dutton’s Dickson.

The Greens attacked Labor as corporate shills. This was despite the fact that the Labor Party’s biggest donors were and always have been unions. This despite the fact that Labor was the target of a massive smear campaign by the corporate Murdoch media. Labor has always been the underdog, having won office from opposition just three times since WWII. Ultimately, Labor could not win office from opposition a fourth time under Bill Shorten with the Greens robbing the party of the support of enthusiastic left leaning voters.

Ultimately, the Liberals were cannier than they had been under Abbott. Scott Morrison didn’t run a campaign saying he would cut health, education, uphold the removal of penalty rates and attack industrial relations legislation, though this will be his government’s agenda. He knows he can’t change the hearts and minds of Australians in one big go. His small target campaign, audacious for a sitting government, was politically ingenious. He won’t make significant cuts to education and health right before an election; he will wait to tear these institutions down methodically, like Howard did before him.

Bill S horten failed to respond to this, especially in the state of Queensland, which sealed his fate. Queensland has always had a history of entrenched conservatism – it was of course the state that gave Australia such lowlights as Sir Joh and Campbell Newman. But the picture here is more complex than it lets on. This is because Queensland is best thought of as two constantly shifting states. The densely populated South Eastern corner is closely intergrated in the global economy and enjoys a job boom, whereas the left behind regional areas of the state languish in obscurity. They haven’t felt much of the economic growth wider Australia has enjoyed since the Hawke-Keating area. Many parts of the state are still struggling to recover from devastating cyclone events such as 2017’s Debbie. One of the last remaining industries available to young people in the North, mining, is in terminal decline and facing immense political pressure from those on the left concerned by global warming and climate change. These regional voters stuck it to the left at the election, and while it is easy to derride them and label them stupid, their position is a desperate one and their politics reflect that.

Where do we on the left go from here? Now is a dark time to be a progressive in this country. I know it is easy to give in to despair. But we can’t give up. We don’t have the privelege of stopping now and giving up the fight for a better country and world. As the great Gough Whitlam said after his infamous Dismissal: ”Maintain your rage and enthusiasm.” Speak to your friends, your family, your work colleagues and anybody you can. You need to start organising towards action that can help make a change. We need to speak to as many people as possible across this great land at every possible moment.

We need to organise as one force for change in this country. Left-wing division only serves to benefit the right. The Australian Labor Party is not perfect, and as a party member, I can tell you that first hand. But there is no room for ideological purity in politics; there is no purity in the Greens, as there is no purity in life. We don’t need ideological purity; we need change. We need real action now. Change that helps the people of this country. Change that supports our amazing abundance of nature. Change that is representative not just of a narrow slice of inner-city Australians. We need change that brings as many of us together as possible. It should no longer be acceptable to abandon your fellow citizens in the fight for a better polity.

Join the ALP to help it be better. Join your local branch. Vote for local candidates, run as a Labor candidate in races for municipal council, run for positions inside the party. If you don’t like where the party sits on certain issues, fight to mould it your image. There are groups within Labor such as the Labor Environmental Action Network that have fought to shape Labor’s 50% carbon reduction targets, and there is room for improvement here. The Labor Party is a party of its members, shaped by its members. It can be as good as we make it.

Though we need such leaders in this country, Albanese is no Jeremy Corbyn or Bernie Sanders. He is a leader only as good as we make him. We don’t have the luxury of being saved. We have to save ourselves and use the ALP and Albo as vehicles for this change. Hold Labor and Albo to the fire if they refuse to fight for the progressive policies we care about. Together, the Labor Party can be a vessel for a broad coalition, one that can bring the rest of Australia to that place Ben Chiefly described as “the Light on the hill.

Many don’t believe in this vision for Australia, such as One Nation, United Australia, the Liberals, Nationals and even the Greens. The anti-Labor forces are powerful in this country. But history is on our side. It’s time for a change, and it will always be time for a Labor Party devoted to principles such as fairness and progress. This election was more important than any of the others – I wish I could say otherwise. Scott Morrison will get the chance in government to cement cuts to the health system and push us towards a privatised model along the lines of the United States. Those workers up in north Queensland will not be taken care of when mining  inevitably becomes less and less profitable. Is this the Australia we want? One that holds us back, forever in the thrall of what Keating called the “Cultural cringe”?

We have to choose and fight for real change for Australia. We have to fight and beat those forces that hold us back. As Robert F Kennedy would say with words that ohave often been a comfort to me:

”We must recognize the full human equality of all of our people – before God, before the law, and in the councils of government. We must do this, not because it is economically advantageous – although it is; not because the laws of God command it – although they do; not because people in other lands wish it so. We must do it for the single and fundamental reason that it is the right thing to do.”

Parasite – Bong Joon-ho’s Palme d’Or Winning Return as the King of Korean Cinema

Film

Ben O’Dwyer

Article Note: Minor Spoilers

After a 10 year stint in the “Hollywood System”, as he described it, with the English language features Snowpiercer and Okja, Bong Joon-ho returns to his Korean roots with his Palme D’or and Sydney Film Festival winning social satire Parasite. Perhaps one of the more deserving Palme D’or winners that have come out of the Cannes Film Festival in recent years, Parasite deserves the critically high praise it is currently receiving prior to its official June 27thAustralian release. It also marks Korea’s first Palme D’or win, achieved on the 100 year anniversary of the country’s cinema. The effort to force the Korean cinema into the mainstream has been heavily aided in recent years with films like Bong’s Parasite, Lee Chang-dong’s brilliant Burning, a Palme D’or contender from last year, and Park Chan-wook’s The Handmaiden. Parasite arguably stands at the top of this list of films, with Bong delivering his most mature work yet.

Without delving into heavy spoilers (which Director Bong advised us against during his Q&A), the film revolves around the low-class Kim family’s involvement with the wealthy Park family, and a string of incidents that occur as a result. The film begins with the Kim family folding pizza boxes (the family’s primary source of income), eating dinners from local convenience stores, and searching every inch of their basement-home for a Wi-Fi signal. Though from the start it is clear that this family isn’t your average low-class family, as is the case in all of Bong’s films. The Director mentioned in the Q&A that the dialogue that the Kim family use with each other is extremely strange; they swear and use phrases that wouldn’t normally be seen in a typical Korean family, something that easily goes over the heads of non-Korean speaking viewers. As such, their cunning as con-artists soon becomes apparent as they one-by-one infiltrate the Park family’s circle, replacing their tutors, their maid, and their personal driver under different aliases. As the centre of the film, the Park family home is almost a character in itself with its elaborate set design, setting up many tense and comedic situations throughout the film.

Contrasting these two families in this expansive home, Bong explores the metaphorical and physical ‘horrors’ of class division. He reunites with the internationally famous and ever-charming Song Kang-ho (who led his earlier films Memories of Murder and The Host) who plays Kim Ki-taek, the patriarch of the Kim family. It also features performances by Lee Sun-keen as Park Dong-ik, the patriarch of the Park family, among other names such as Cho Yeong-jeong, as Park Yeon-kyo, and Choi Woo-shik, as Kim Ki-woo. As with most of Bong’s ensemble films, there wasn’t a weak performance to be found, with even the minor characters such as the son and daughter from the Park family playing their roles fantastically. Much can be said about Song Kang-ho; charming in every role he plays, able to convey and evoke a range of emotions and audience responses through simple line deliveries and facial movements, and a reason for watching any film he appears in. Though similar to roles he’s played before, in that he plays the ‘everyman’ (Memories of Murder’s Park Doo-man for example) similar to Jimmy Stewart in classic Hollywood, he visually and characteristically appears much more mature in the role of Kim Ki-taek. Speaking more on the performances themselves, in the Director’s Q&A after the film Bong mentioned that though many of the characters commit horrendous and ‘bad’ actions, none of them are wholly bad, as in the words of the director “those people just don’t exist”. He went on to mention that they exist in a “grey area” between good and bad, and naturally float between the two throughout the duration of the film. This tittering between zones results in a natural and un-forced tonal shift towards the end of the film that expertly blends with the rest of the content within the film, despite being an extreme and shocking turn.

As with all of his films, Bong Joon-ho blends genres (which will be discussed later) to showcase a primary theme or issue. He mentioned during the Q&A that he likes to make films about “weaker” groups of people, meaning people who don’t possess the voice of the majority. This is explicitly evident in Okja, with its focus on animal rights, environmentalism and capitalism, and in Snowpiercer with its class struggle plot. However, more subtle themes are pushed across in his earlier films, including Memories of Murder’s and The Host’s struggle with post-war national identity. Parasite sets its sights on class struggle, similar to Snowpiercer¸ though it doesn’t explicitly ponder this primary theme within the elements of the film. It produces a coherent reading. The openly ‘metaphorical’ nature of many things in the film (the rock primarily) are nonchalantly thrown at the audience within seconds of their appearance. Thematically Parasite exists closely to his first English-language film Snowpiercer in that they both focus on class struggle, though this appears more comically in Snowpiercer’s science fiction setting and more maturely in Parasite’s realistic family drama. Another similarity is in the physical structure of the films, primarily in terms of set design and cinematography. Snowpiercer focuses on the lower-class denizens of the tail section of the train moving towards the high-class front section of the train, a horizontally positioned hierarchy. Parasite, on the other hand, focuses on verticals. The Kim family live in a low set basement-like home while the Park family live in a luxurious and architecturally elevated hilltop mansion. Even when the families interact with each other the Kim family always exists on a lower plane to the Park family (Examples being when they are positioned under the table and in the basement).

Bong Joon-ho has always been an ‘unconventional’ filmmaker, with his films not entirely fitting into any specific genre. Take The Host, which on the surface appears as a monster film, but breaks many cinematic conventions related to the genre; the monster appears within the first few scenes and is clearly visible throughout the film. More than this, it touches heavily on themes of South Korean national identity and the dominance of the United States in the South post the Korean War. All of his previous and subsequent films also focus on ‘greater’ themes, with Parasite being no different. Bong’s injection of subtle and often black comedy into these violent scenarios (Barking Dogs Never Bite’s dog hanging scene and Memories of Murder’s infamous drop-kicking come to mind) adds to his films’ unclassifiable nature. There is a delicate balance between violent, heavy elements and comedic components that work in cementing Bong Joon-ho film’s as undeniably Bong Joon-ho, rather than conforming to a specific set of genre conventions. If we were to classify Parasite it would come under such genre umbrellas as comedy, family drama, thriller, and even tragedy, but it remains a wholly original affair. Parasite in this sense is perhaps his most mature work, in that it allows audiences to throw away the aforementioned genres and settle for the label of ‘A Bong Joon-ho’ film. A prime example of this appears at around the mid-point of Parasite (which won’t be spoiled) and involves a morally horrific event taking place under very comedic circumstances. The result had the entire State Theatre in an uproar of laughter.

A highpoint of the Q&A was towards the end when the director revealed he was working on three more films, two Korean and one English. One of the three is a set to be a Korean horror movie set in Seoul, which was the extent of information he could reveal. With Parasite’s triumphant success at Cannes, the Sydney Film Festival and throughout its South Korean cinema run, Bong retakes his crown as the king of Korean cinema.

In Defence of Hollywood Cinema

Film

Liam Riordan

There is something seemingly quite satisfying in not just disliking, or not preferring, but actively hating contemporary Hollywood cinema. I speak from personal experience here, but a wide personal experience. Between colleagues, friends, family members, professional and amateur writers in both print and on the internet, and even professional practitioners of cinema itself, both Hollywood and otherwise; in all of these groups and more, you won’t struggle to find countless arguments that Hollywood cinema is “soulless” or “empty” or “shallow,” or any other such descriptors.

To clarify, I completely understand this argument. Screen media is perhaps the medium that most blurs the line between art and commerce. All mediums need to make some money to survive, and some of them do considerable business, but you won’t find a novel or a ballet performance making a billion dollars on its first weekend out of the gate.

The kind of money that films make, and need in order to be made, is difficult to ignore, and this is especially true of blockbuster Hollywood cinema. When a film costs multiple hundreds of millions of dollars to make, it desperately needs to make much, much more. This is where my views align with those who disdain Hollywood cinema. These massive investments are a huge risk for studios, and to minimise that risk, the films themselves are made in a way that the studios conceive of as “safe.” This leads to the kind of entertainment that people often say feels like it is “made by a committee.” The fear of alienating any of the potential audience means that interesting, bold filmmaking choices are not taken. This, combined with the practice of looking to former successes for some kind of (in truth non­existent) formula, is the primary reason why film after film feels exactly the same as everything else coming into theatres.

Indeed, this is frustrating. It is also condescending, that studios favour placating everyone over actually pleasing and exciting a slightly smaller audience.

This is all to say, I understand where the vitriol comes from.

However, I still believe it is misguided.

For one, the common understanding of “Hollywood” is  smaller and more restrictive than the reality of Hollywood. Hollywood is largely to blame for this. It is deeply interested in the idea of itself as evidenced by the inward gaze of greats like Sunset Boulevard and Singin’ in the Rain, to more recent masterpieces like Mulholland Drive and LA Confidential. But it’s also very self­-critical. The great irony of films such as these is that they are exceptional, but they are exceptional in that they clearly express how vacuous and vile the Hollywood behind their construction actually is. No wonder we don’t know how to feel about the place.

But the reality of Hollywood cinema is, like many things, so much more than the surface reveals. Massive Hollywood studios commonly run much smaller subsidiaries that make the kinds of films that are often mistaken for “indies.” One such example is Universal Pictures, who have given us enormous titles such as the Jurassic Park/World series and the Fast and Furious Films. They own Focus Features, who made the beloved, infinitely more intimate films Lost in Translation and Eternal Sunshine of the Spotless Mind to name just two.

Hollywood is an industry, just like any other. It works on supply and demand: the smaller “sub-­studios” like Focus Features cater to an audience that wants smaller, more emotional, perhaps more specific experiences, where the bigger studios cater to a wider audience, as well as to those who want to see something that necessitates a huge budget. Part of the magic of cinema is that visionaries like Sofia Coppola can invent a new kind of quietness, a previously unfelt level of cinematic voyeurism, and in the very same city, other visionaries like Steven Spielberg can make dinosaurs come to life.

These innovations require very different investments, and those investments require very different returns. Hollywood is a much broader idea than I think a lot of us give it credit for. That’s not to under­play the pretty pervasive consumerist attitudes of the blockbuster end of Hollywood’s spectrum; rather, it’s simply to suggest that there’s more to tinseltown than endless sequels and reboots. You don’t even have to know where to look, but it’s worth knowing that often, you’re already looking at it.

Now, the breadth of Hollywood aside: blockbuster films are not all, and are not inherently, soulless, shallow, or plain bad. There is a pretty toxic double standard in the world of entertainment and film; the fact that those who don’t really enjoy “arthouse” cinema, or niche, foreign or independent cinema, are pretty happy to let those who do, simply enjoy it. Filmgoers who don’t attend festivals or who don’t like to venture too far from what they know, aren’t very likely to criticise those who do.

And yet, this acceptance is almost non­existent when the tables are turned. Big-­budget action and adventure films, especially franchise titles, are almost universally relegated to “just entertainment” (which is a broken phrase to unpack at another time) even by those who really enjoy them, and judging by the numbers, that’s a lot of us. But just like any other genre or type of film, there are exceptional entries just as there are lacklustre ones. There are as many (logically, many more) films from the revered French cinema that are boring, self-­involved, or cheap, as there are shimmering masterpieces. The same, I believe, applies to blockbuster films.

Jaws, the very namesake for the blockbuster, is one such example. It is thrilling, absolutely exemplary of the craft of filmmaking, and a satisfying story with a well­constructed character arc at its centre. Mission Impossible: Fallout is another example of nail­biting action direction, and features incredible fight choreography and some stunning (in the truest sense of the word) re­thinking of what constitutes vehicle chase sequences.

Just as there are some things that blockbusters cannot, by definition, do, there are things that only they can do. Discovering new, subtle character acting talent in a tentpole action franchise is unlikely: but seeing an entire suburb fold in on itself a la Inception is just as unlikely in a four ­million dollar indie.

Yes, films like these cost a lot of money and need to hedge their bets a little bit to make their money back. But that doesn’t automatically disqualify them from being genuinely great. All films are a bet, and it takes bravery and true love of the form to put legitimate quality and passion above financial concerns.

That is what all great films do, regardless of their cost, their country of origin, or their production backgrounds, or the talent behind them. Love, inspiration and genuine craftsmanship, wherever you can find them, are rare and beautiful, and deserve your appreciation.

Jeremy Corbyn’s Brexit Madness

Politics

Tim Page

Since the United Kingdom voted to leave the European Union in June 2016, the nation has been divided over the question of how to handle this difficult task. British society has been consumed by discussions of deals, backstops and articles. Previously obscure figures on both sides of the Channel have been vaulted into stardom, and personalities thought to belong to bygone eras have returned to the limelight. In the wake of Theresa May’s failure to secure support for her Brexit deal and her subsequent resignation, it appears now that the next Prime Minister will be faced with a binary choice – crash out of the European Union in October with no deal, or revoke Article 50 and remain in the EU.

The Conservative Party has hopelessly failed in its handling of Brexit. For three years Prime Minister May treated this constitutional crisis as merely an internal party dispute. Her efforts were focused solely on winning over the hard-line European Research Group (ERG) rather than uniting Parliament and the country. In normal political times, an election would have been called many months ago and this disunified mob would have been thrown out of office. The British people could then trust the opposition to take over and deliver a degree of stability. Unfortunately, Britain’s opposition is just as shambolic as the government. The Labour Party led by Jeremy Corbyn is itself hopelessly divided on the Brexit question, primarily because of Mr Corbyn’s long history of hostility towards the European project.

Before exploring this history further, it’s important to determine what Labour’s stance on Brexit actually is. A simple enough question, but one without a simple answer. Labour’s 2017 General Election platform accepted the result of the referendum and committed the party to supporting withdrawal from the EU, while rejecting a ‘damaging Tory’ no-deal version of Brexit that would undermine worker and environmental protections in the UK. So, Labour is opposed to both Theresa May’s 2018 agreement with the European Union and the ERG’s favoured no deal option. But what is their own alternative proposal?

It appears not to exist outside half formed thought bubbles offered up by Corbyn and the few miserable frontbenchers that still back him. One of the more interesting Corbynista ideas holds that the United Kingdom should continue to have access to the Common Market while not being part of it and rejecting freedom of movement. This is, of course, despite the fact that the European Union has repeatedly made it very clear that the price for access to the Common Market is accepting freedom of movement. This kind of agreement would almost certainly be rejected by European Union negotiators.

In mid-March Labour sought to clarify their position on Brexit somewhat. They made it official party policy to advocate for a public vote on any Brexit agreement passed by the House of Commons. Critically however, Corbyn did not, and has not, clarified whether one of the options on the ballot sheet will be Remain. The waters were further muddied when Corbyn made it clear that holding a public vote was a second option, his main preference being to attempt to force a general election at all costs. Again, it is unclear exactly how Corbyn plans to bring this about. A no confidence motion against the Government already failed several months ago, and there is no indication whatsoever that any Tory MPs have changed their minds and are now prepared to vote themselves out of government in order to hand the keys to Downing Street to a Marxist they loathe to the core. Given this, one could almost be forgiven for thinking the promise to hold a public vote was just a cynical attempt to win over remain voters without having to actually commit to anything!

This platform of strategic ambiguity has thoroughly confused Labour’s membership, which rightfully deserted the party en masse in the recent European elections to vote for the unambiguously pro-remain Greens and Liberal Democrats. Despite the abandonment of Labour by remain voters, they have maintained a narrow poll lead over the Conservatives by virtue of the even greater split among Leavers. However, with the coming likely ascent of the hardline pro-Brexit Boris Johnson to the Prime Ministership, it seems all but inevitable that the Tories will win back ardent Leavers from the nascent Brexit Party. This leaves Labour in a very dangerous electoral position indeed. That is, unless they can find a way to end the divisions on their own side of the political spectrum.

You can feel some sympathy for Labour’s position when you realise that while the vast majority of their membership and voters wished to remain in the EU, the majority of their constituencies (primarily in the north) voted to leave. It was right of the party to initially commit to respecting the referendum result, a commitment which arguably helped them greatly in leave voting areas in the 2017 General Election. As the years have passed,  however, it has become clear that Brexit cannot be delivered in any form that won’t damage and hurt the Labour voters, and that the best deal is to revoke Article 50. Labour by now should have committed to holding a second referendum with remain as an option wherein they would vigorously campaign to revoke Article 50. The reason they have not done so lies solely at the feet of Mr Corbyn.

Prior to seizing the leadership in 2015, Corbyn spent decades as a backbencher fiercely opposed to European integration. In 1975, when a referendum was held to determine Britain’s membership status within the European Economic Community, the economic precursor to the EU, Corbyn voted no, reflecting the old-school Labour left’s opposition to free trade and open markets. In 1993, Corbyn opposed the ratification of the Maastricht Treaty, the founding document of the EU. In 2008, he opposed the Lisbon Treaty, an update to this essential constitutional building bloc. In 2011, he voted for a backbench Conservative MP’s motion to hold a referendum on EU membership. In 1993 Corbyn was quoted spouting Eurosceptic talking points: ”We have a European bureaucracy totally unaccountable to anybody, powers have gone from national parliaments, they haven’t gone to the European Parliament, they’ve gone to the (European) Commission … these are quite serious matters.” You would be forgiven for mistaking such a statement for something uttered by such poisonous figures as Nigel Farage or Jacob Rees-Mogg. Video of Corbyn campaigning in Ireland against the Lisbon Treaty has him likening the European Union to an ”empire” subservient to NATO’s ”military Frankenstein.” Suddenly, upon being elected leader of the party in September 2015, Corbyn performed an about-face on his nearly 40 years of opposition to the EU. In a rare capitulation to majority sentiment in his party, Corbyn pretended to support Britain’s continued membership in the European Union and promised to campaign to remain in the 2016 referendum.

Corbyn, whatever his ideological faults, has proven himself to be an extraordinary political campaigner. Launching himself from utter obscurity as a backbencher to Labour leader in 2015 with zero institutional support and little name recognition was an extraordinary achievement. Even more impressive was Labour’s performance in the 2017 General Election. The campaign started with predictions that the Tories would win 400 seats, and ended in a hung parliament with Theresa May’s authority fundamentally shattered. So it is indeed curious reflecting upon Corbyn’s lifeless performance in the course of the 2016 referendum campaign. Phil Wilson, the Labour MP for Sedgefield and chair of the Labour In For Britain group, observed that “Corbyn was only ever partially interested in keeping Britain in the EU … he decided to go on holiday in the middle of the campaign.” Wilson noted Corbyn’s failure to visit Labour heartlands in the north-east and his bewildering insistence on raising esoteric issues such as the TTIP (Transatlantic Trade and Investment Partnership) when campaigning. Corbyn sent mixed messages in the course of his campaign appearances. In June 2016 he made a campaign appearance wherein he stated that “We, the Labour Party, are overwhelmingly for staying in, because we believe the European Union has brought investment, jobs and protection for workers, consumers and the environment.” However, he spent just as much of the speech criticising EU trade policy, particularly the aforementioned TTIP. While such criticisms of EU trade policy are not necessarily invalid, it is baffling why any campaigner would undercut their own message with criticism of the very thing they support mere weeks out from a referendum. He also criticised economic warnings of the potential effects of Brexit, echoing the Leave campaign’s slogan of “Project Fear” by opining that there had been too much “myth-making and doom” in the course of the campaign. Corbyn’s lackadaisical approach to the campaign was best symbolized by his appearance on Adam Hill’s show The Last Leg where he said he was not a “huge fan” of the EU. When asked how important Britain’s continued membership within the European Union was on a ten point scale, he answered: “7 or 7 and a half out of 10.” Hardly inspiring or convincing stuff.

Corbyn’s Euroscepticism has been evident in the years since the referendum. On June 24, the day after the referendum result, Corbyn was already calling for Article 50 to be formally invoked, an act of complete madness. With no mind for the enormously complex task of negotiating Britain’s withdrawal from a political and economic union it had been intimately tied to for decades, and with no consideration of the time limit the EU imposes on withdrawal negotiations, Corbyn called for negotiations to begin right away. Corbyn also suggested that membership of the single market could prove a hindrance to his ambitious social democratic domestic agenda, as State Aid to specific industries can only go ahead with the approval of the European Commission. This is despite the fact that any agreement between Britain and the EU on their future trading relationship would undoubtedly include provisions limiting state aid anyhow, as is consistent with World Trade Organization rules. Furthermore, in the EU, Britain is one of the lowest ranking members in terms of percentage of GDP given to state aid at 0.38%, below fellow economic leaders France (0.76%) and Germany (1.31%), suggesting it is other global and domestic economic and political factors limiting state aid in the UK, not Europe. Corbyn has either deliberately misrepresented the situation to present a rosier picture of British industry after Brexit, or has done it out of ignorance, hardly a more comforting prospect.

There is no doubt that Mr Corbyn’s opposition to the EU, like all his political beliefs, comes from a place of deep principle. What is remarkably unprincipled about his behavior over  the course of the past three years however, is his attempt to disguise his true wishes. He is not a hard-line Brexiter in the mould of Jacob Rees-Mogg or Nigel Farage, but he clearly would rather be out of the European Union than in it. Corbyn’s equivocation cannot continue for long. Before long he will have to hold his nose and commit Labour to supporting a second referendum. If he does not, he must be prepared for the Membership to replace him with someone who will.

Bill Shorten’s Failure

Australia, Politics

James Calligeros 

The Labor Party have now lost two unloseable elections in a row. In 2016, it was the party that had “learnt its lesson” on stability versus the increasingly divided party plagued with a spate of resignations, cabinet reshuffles, and a “cruel and unfair” budget. But it wasn’t, really. It was a contest between the silver tongued, slick, confident Malcolm Turnbull and Bill Shorten, who at the time could have been mistaken for a wet piece of paper you’d find in your pants after they’ve gone through the wash.

And now, on Saturday, it was the party with a vision for the future of Australia, with a plan to revitalise public healthcare, to fix the mess that the Liberals made of the NBN, to ensure stability (not necessarily growth) in the housing market, and to end an unsustainable tax loophole costing the budget $6bn a year up against the party of “look it’s just common sense!” The Victorian and Queensland state elections of 2018 saw Labor governments re-elected, with a huge swing towards the red team in Victoria. Federal inaction on climate change had pushed the nation to protests. We saw the divisions in the Liberal Party come to a head with two weeks of utter chaos in late 2018, leading to the deposition of Malcolm Turnbull at the hands of Tony Abbott, who was all too happy to resign the party to almost certain defeat only to satiate his hunger for revenge against Turnbull. The previous week’s election should have been a bloodbath for the Coalition. But it wasn’t.

Policy-wise, most Australians would agree with the Labor platform, which echoed the Hawke-Keating economic reformation but with a distinct modern twist. And yet the party of warring factions, an unstable coalition agreement that was almost torn up only a few months ago, brazen cronyism, infrastructure project sabotage, and a deafness to all issues other than the nebulous promise of strong economic management came up from the rear to form government at 7 to 1 odds.

The blame must lie squarely with Bill Shorten. Modern politics has become less about policy and more about identity and optics. Bill Shorten, since assuming the role as leader of the Labor party, has not once polled above the Liberal leader as preferred Prime Minister. Even during the final days of the Abbott reign when public opinion had turned unequivocally against the old regime, he still polled higher than Shorten. Turnbull, even after fizzling out and resigning himself to playing tug-of-war with the Liberal Party factions, polled higher than Shorten. And now Scott Morrison – ScoMo – even after the absolute joke that was the 2018 Liberal leadership spill, polls higher than Shorten.

The sad fact of the matter is that Shorten was never leadership material, especially not in the modern age of personal politics. And while his party’s loyalty and commitment to stability must be commended, ultimately it has proven to be their undoing at two unloseable elections.

Ask anyone who isn’t a Labor shill what they think of Bill Shorten. You’ll get a response along the lines of: “I can’t trust what he says,” or, “I dunno, there’s just something about him aye.” But that’s the problem. There isn’t something about him, there’s nothing about him.

Bill Shorten has consistently come off as uncharismatic, insincere and out of touch. His oration is reminiscent of a school captain forced to recite a speech for ANZAC day assembly written by a pompous deputy principal; it is clunky, stunted and monotonous. His facial expressions, tone and rhythm all give off the vibe that he either doesn’t want to be there or does not speak with conviction. Neither of these are necessarily true, but it is the image he has put out for himself. Compare this to the passionate almost-rants of Scott Morrison both on the campaign trail and during Question Time, and he comes off as an actual personality, not a text-to-speech bot.

Bill Shorten’s history as a union boss also did him no favours. The Murdoch press was able to leverage this as ‘evidence’ that he was in the pocket of the union movement, and that a Shorten-led Labor government would mean an Australia run by – and for – said unions. God forbid! You’ll hear criticisms of Bill like: “He’s never worked a day in his life,” and these are a result of this press-led anti-union scare campaign. It seems in the eyes of the Australian public, you’ve only worked if you’ve used a jackhammer or worn hi-vis. And despite a multi-million dollar witch-hunt conducted by the Abbott Government into union corruption, not a single shred of evidence was found linking Shorten or his time at the AWU to any wrongdoing. The damage to his reputation was already done, however, and it seems that it was irreversible.

Tying into this is Tall Poppy Syndrome – a uniquely Australian phenomenon where the public, as a rule of thumb, try to discredit and look down upon wealthy and successful public figures. Malcolm Turnbull was a victim of this just as much as Shorten. Both leaders were relentlessly mocked and ridiculed for their failed attempts at seeming personally in touch with middle Australia. Take for example, the ridicule he received for eating a hot dog the ‘wrong’ way, and the equally ridiculous image of him applying sunscreen with his knuckles. The media jumped on to these almost immediately, citing them as examples that Bill had no idea how real Australians go about their daily business, as if it matters how you eat a damn hot dog. And while Turnbull was mocked for living in a big fuckoff Northern Beaches mansion, he was able to use his wit and slick used-car salesman charisma to fend off and deflect criticisms that he was just another elitist member of the Australian upper class. Bill’s lack of charisma and ability to deflect criticisms effectively only solidified public opinion that he was not ‘one of us.’

We saw a radical change in Bill starting around the end of last year. It appeared as if his handlers had given him some coaching as his speeches became more passionate, his wit and charm increased exponentially, and we saw more of a Rudd-esque attempt to get down and dirty with locals in various electorates. His appearance on Q&A was exemplary of this. After 5 years in opposition, however, changing tune mere months out from an election was merely too little, too late.

The Australian public is extremely quick to judge and recalcitrant to having their minds changed. It was apparent even from the day he won the Labor leadership spill against Anthony Albanese that he would never be Prime Minister of Australia. The almost unyielding five year media assault on his personal character and public life only ensured that this would be the case.

That said, would Shorten have made a good Prime Minister if given the chance? Probably. He had the leadership experience from his union days, had proven that he could hold together the various factions inside the Labor Party, had a vision for Australia that most could get behind, and seemed to be making a genuine attempt at becoming more down-to-earth and relatable to the Australian populace. We probably would have seen Shorten come into his own, and maybe even secure a second term come 2022 if he was able to continue on the path he had started down last year and prove that Labor could deliver on the many promises it made during this campaign.

Ultimately, he wasn’t the Bill Australia couldn’t afford. He was the Bill it simply didn’t want.

How Brisbane’s Paniyiri Festival Lost Its Way

Brisbane, Culture

Peter Calos

As May draws to a close, it is time to once again revisit, and mourn, that classic festival venerated by philhellenes all over Brisbane: the Paniyiri.

Yes, the weekend is a tried-and-true vehicle for the consumption of gyros, honey puffs, dolmades, calamari, and that other thing you can’t quite remember the name of but you tried once on holiday in Mykonos and thought was pretty good.

But is it worth anything else?

Sure, there’s a cultural exhibition in the club next door, and dances late into the night. Not to mention a mock village made of a few deck chairs. (Let me tell you from experience – that’s as far from a “Greek village” as we are from Alpha Centauri.) We’ll have fun despite ourselves, since at heart it’s a social event – but everyone will eventually acknowledge at some point in the proceedings that it’s not what it used to be. Every year for at least the past three years, as far as I know, some strapped-for-a-story young journalist has tapped into the mostly-unspoken Greek consensus: that the festival has lost the connection it once had to their Greek community of Brisbane, and is now a mere commercial venture. And the trend looks set to continue: advertisements for the event now feature, and I quote, ‘Greek Yum Cha’, as a product on offer.

It is immensely hard to see how we reached the point of apparently needing to claim cultural practices from China to service a Greek festival, given that we have the same thing which can be found in a two-second Google search for ‘mezes’! But nonetheless, this is the bed Brisbane’s Greek community has made, and we can either lie in it or sleep on the floor – give up on the whole thing and just sell it to Channel 7 already.

It’s an accepted fact, at this point, that the spirit of the thing is, if not gone, then at least noticeably corrupted.

In response to my arguments, a philhellene will make two claims: it’s an excuse to meet friends and enjoy a social outing, in an otherwise drab time of the year filled with overly grim political role playing both on HBO and the ABC.

(I think you know what I mean.)

And, second, “at least it shows off more culture than Australia usually has on display.”

The first point – that it is a fun social outing – no one could take issue with. The second?

What is ‘culture?’ Allow me a slight diversion here, for the sake of a fuller understanding.

‘Culture’ is something that results from multiple singular perspectives coming to a consensus, assigning value based on shared values. Historically, the purple dye known as ‘Tyrian purple’ was reserved for the colouring of imperial robes, and the robes of higher statesmen, because harvesting the specific dye was difficult, compared to the more common colours. Hence the idea of purple as the ‘royal’ colour throughout much of Roman history. To give a more modern example, if a novel exemplifies a particular national outlook, captures a moment in time for a certain culture, or outlines a movement with enough accuracy, it becomes a ‘cultural icon’ – i.e. Nikos Kazantzakis’ novels are held up as ‘Greek literature.’ The Notre Dame is an expression of Gothic Catholicism, the combined efforts of hundreds of French workmen over hundreds of years that were able to come together to create a ‘cultural icon.’ These things are what is meant by ‘culture’ – but none can exist without acknowledging the frameworks of shared understanding which underlie their existence.

The Greeks, upon our dispersion to America, the UK, and Australia over the last century, have offered the Western world many aspects of our old culture that amounted to the following: honey puffs, baklava, gyros, Zorba’s syrtaki dance, the uniforms worn by soldiers during the Greek War of Independence, and My Big Fat Greek Wedding.

Unfortunately, without an excessive time and attention investment, it’s difficult to understand the underlying reasons for those things, or their composition (For example: what is the Zorba – is it one dance? No, it actually borrows from two different types of traditional dance). The Greek customs and symbols mentioned above fit into the Anglo-Saxon mould because they have universal appeal and they become ‘symbols of Greekness’, trappings of Hellenism that don’t require their original meaning to make sense anymore. Does anyone remember the origins of Zorba’s dance, or the traditions it borrows from? (Who even remembers who Zorba was?) Why did the soldiers of the Greek War of Independence wear shoes with pom-poms? How could anyone in their right mind actually find My Big Fat Greek Wedding funny?

It takes time and investment to learn the answers to these questions, time and investment that most don’t want to, or can’t, put in. In a grand vindication of Baudrillard, the symbols have assumed substance from outside their place of origin – given new meaning by a Western tradition seeing them for the first time. I am Greek. That means I must also constantly eat baklava, spend half my life on beaches, always do funny-looking dances, wear a silly uniform, and so on and so on.

Of course, because these symbols are so distinct, it’s easy to make money off them. They are excellent advertising tools, which attracts Channel 7 et al. And so we return to the discussion at hand. Oh, the festival’s lost its way a little, yes. But are things really so bad as the pessimists say? Is there a medicine for the popular complaint?

Up till now I was able to excuse the slight bastardisation of custom as a translation done for convenience. Very few people are attracted to a culture by a desire to understand its underlying assumptions, after all. People are interested in something initially by the trappings, by symbols divested of their true meaning. Fair enough. You can’t start off rambling about rebetiko culture from the 1910s and expect anyone to really care – you have to show them the dancing, and if they’re interested enough they’ll start exploring from there. Nor can you attempt to celebrate a smaller culture within the context of a larger one without excising the more specific, unpopular, obscure cultural artifacts – no one will be eating lentil soup, for example, at Musgrave Park this year, or wearing a Chi-Rho emblem. Obviously, they serve gyros, and those passionate enough to dress up will wear togas. One cannot fault the Paniyiri’s organisers for exploiting the very marketable symbols of Hellenism, as laid down in this country by their milk-bar-owning forefathers 80 years ago, for the chance to show off a tiny bit of the real Greece. There’s quite literally no other way to do it than that.

However, surely the desire for recognition and popularity has reached a complete nadir when this translation is done through an unnecessary third party, when radio ads advocate for ‘Greek Yum Cha’?

Yum Cha is Chinese. It’s not Greek. Therefore, this is not Greek food, but a fusion. I have nothing against that in and of itself, but it shouldn’t be present at a Hellenic festival. What an utterly ridiculous disgrace this is, that we apparently can’t stand on our own cultural merits and have to resort to leeching off Chinese customs to get people to like what we eat! Those Greeks who would protest at my words – are you averse enough to your own culture that you can’t tolerate it without a familiar Asiatic balm? Where is your respect for your ancestors? You never had to do this before, Paniyiri organisers – there’s no need to embarrass us all by starting now.

This is one of very few moments where I have been ashamed of my own culture. The organisers have stooped so low in order to draw in a new audience that they have created a festival not just out of sync with, but counter to its original intentions. You’re no longer showing off Greek culture to Brisbane – you’re actively trying to disguise it as something else, to erase what it really is, to get people to pay attention to it.

I cannot be the only person in this city who finds that absolutely disgusting!

Try not to misunderstand – even as it was commercialised I had some appreciation for this festival, because, Westernised or not, as annoying as Effie’s voice is, the symbols it was showing off were true to their origins. Oh, they were draped in too much honey, you had to pay exorbitant prices for them, the announcers kept mispronouncing the names and talking about them in a silly manner, but we still acknowledged what they really were.

Now that even the token veneer of Greekness has been stripped away, and traditional Hellenic customs are presented in a manner utterly counter to their origin, quelling all curiosity and distorting people’s image of what Greek culture really is, I see little reason to attend the Paniyiri again. It’s no longer even pretending to be Greek. I can’t respect this festival if the organisers don’t – and they clearly don’t.

On The Triumph of Fear, Loathing and Selfishness

Politics

Drew Pavlou

The Coalition’s victory tonight was wholly unexpected. Scott Morrison’s unwelcome surprise success will no doubt be dissected ad nauseum by the media commentariat in the coming weeks. I propose we start this torrid business as soon as possible. This piece will attempt to do so by considering the archetypal Liberal voter from an anthropological perspective.

There’s a certain kind of mediocre, thoughtless, brain-dead middle-class Australian voter that consistently holds our nation back. They live in a heavily mortgaged McMansion out in the suburbs in a world of urban sprawl. This voter has a very limited grasp of our constitutional system and is thus easily swayed by undue attempts to turn elections to our House of Representatives into presidential style campaigns. This voter is profoundly selfish, willing to fuck almost anything and everything – the environment, the poor, the voiceless, etc – in return for tax cuts for their bosses. Hoping as hyenas do to be able to feast on the scraps of the main course meal, they are willing to trade their vote to the boss class in the hope that some crumb of the wealth of the mining magnates and economic rentiers that rule our country will eventually trickle down to them. In a way, this voter is really quite pathetic. We can have sympathy for them as we have sympathy for non-playable characters in video games, doomed to forever repeat the same scripted stock lines unto death. It probably is quite hard making it through life without any kind of internal dialogue or capacity for critical self-reflection. But the selfishness and hatred of this voter has very real consequences for the rest of us, and so they are a justified target for our criticism and contempt.

Scott Morrison is the masturbatory fantasy of this mediocre, middling voter. He can’t be accused of intellectual snobbery – with a “Fair Dinkum” campaign based on such uninspiring, nonsensical platitudes as “It is my vision for this country as your Prime Minister to keep the Promise of Australia to all Australians,” he speaks right to the  low level of these people. As a former ad man and snake oil salesman that struck it rich working in an industry as fundamentally unproductive as public relations, he symbolizes all that the mediocre middle-class craves – success within a managed world of greed, hedonism and overconsumption that has no relationship to the actual needs of real human beings. The mediocre middle-class voter recognizes the fact that we live in a dystopia – they just think it is rather quite bearable. Taking the kids to soccer games on the weekend in their gas guzzling SUV fuelled by endless wars in the Middle East, going to the shopping centre to support the consumer economy, engaging in missionary sex in the dark for three minutes a week – this is enough for the middle-class mediocre voter. And consequently, Scott Morrison and the Liberal Party are enough.

The middle-class mediocre voter does not want to rock the boat. Shifty Bill Shorten seems unlikable for some vague reason they can’t quite articulate. When they watch Married At First Sight, or some other similarly vapid, coma-inducing reality television show, the focus-grouped attack commercials that are run during ad breaks show unflattering images of Bill Shorten and say things like: “Bill Shorten, the Bill Australia cannot afford.” They nod sagely to themselves and make a note that Bill Shorten is a bill that Australia (read: their bosses) cannot afford. Later, they see an advertisement on Facebook which mentions something about a tax increase. This immediately triggers in them deeply ingrained evolutionary responses. Just as silverback gorillas will fight to the death over the status conferred by control of resources such as coconuts within the group, the mediocre middle-class voter will fight to the death to defend their relative position in society in relation to the poor and vulnerable. Any increase to their absolute position must be resisted in order to preserve what middling social prestige the mediocre suburban voter enjoys in a society dominated by an aristocratic few. If a couple homeless people have to die sleeping rough on the streets this winter in order to preserve the family’s annual trips to Thredbo, so be it. The middle-class mediocre voter has no notion of the common good. Any abuse, however extreme, is justified in the name of lower taxes.

Through this all, we continue our inexorable march toward a feudal, slave-like future. We continue our long, solemn march towards a hellish climate apocalypse. As the clock runs down on our ability to right these wrongs, to halt rising inequality and ruinous global warming, we sleepwalk into a world of chaos, death and destruction. The mediocre middle-class voter doesn’t mind this, so long as the next couple years entail more of the same. That’s what Scott Morrison offered them. They signed up to this destructive Faustian pact. Shame on them. Australia’s future looks bleak.

News Corp – A Cancer On The Body Politic

Politics

Tim Page

What is the purpose of a newspaper? Is it to simply gather and report events that have happened? Does it have any social purpose? In the 1960 film Inherit the Wind the barb tongued reporter E.K. Horneck (a thinly veiled stand in for the ‘Sage of Baltimore’ H.L. Mencken) opines that ‘the purpose of a newspaper is to comfort the afflicted and afflict the comfortable’. If this is the standard by which we judge the success or failure of our sources of news, then NewsCorp has grossly failed. Rather than ‘afflicting the comfortable,’ NewsCorp through its daily mastheads and television network Sky News goes out of its way to be their shields. The causes it has deemed worthy of the investment of its considerable resources include the moral defence of convicted child molester George Pell, wealthy retirees receiving exorbitant tax refunds, and international fossil fuel giants. Murdoch’s publications have always displayed an obvious affinity for the conservative side of politics, but in the past 5 years they have fallen from an already low point of mere bias to one of active demented rage towards anyone to the left of Atilla the Hun. In this uncertain era we live in, we are right to be on edge concerning threats to our democracy from abroad and the danger of fake news. But we seem to have woken up far too late to the fact the real threat to our stability and cohesion as a society is coming from the divisive, hate filled Murdoch press.

The Christchurch Massacre of the 15th of March shocked the world, but its horrors were felt particularly keenly in Australia. After all, we were the society that produced the killer, that bred and incubated him. What convinced this man to kill? Before any real self-examination could be done, a distraction came along in the form of neo-fascist senator Fraser Anning with his outrageous victim blaming remarks. It may comfort us to think of the gunman, Anning and his ilk as aberrations, dark figures that rose in a vacuum of their own creation, unaffected by the influences of the outside world. This is assuredly untrue. The truth is that for years the Murdoch media has greatly contributed to creating an environment from which these evils could arise. Consider last November’s Victorian state election – for nigh on a year beforehand, the media, led by News Corp, ran a hysterical fear campaign about a supposed wave of crime by Sudanese gangs. Despite the fact that statistics showed crime had fallen over the past year, the Herald Sun would have had us believe that Melbourne was turning into a Detroit-tier urban hellscape, where good honest (white) folk were too afraid to leave their houses. After the incumbent Labor government was re-elected in a landslide despite having been accused of turning a blind eye to this crisis,  the issue disappeared entirely from the national agenda. The damage to the community, though, may already have been done.  After this vicious year long campaign, are we now surprised that one of Senator Anning’s chief policies is to halt any further ‘black’ immigration?

In 2011, Herald Sun columnist Andrew Bolt was found by a federal court to have breached Section 18C of the Racial Discrimination Act in relation to an embarrassing 2010 blog post titled ‘It’s So Hip To Be Black’, in which he suggested that fair skinned individuals were playing up distant Aboriginal relations to further their careers. Since then, the Murdoch media has unanimously led calls for the repeal of Section 18C. An issue of very little import to the overwhelmingly majority of Australians, for four years it consumed front page column inches in The Australian. This issue was the impetus for George Brandis’s infamous statement on the floor of the upper house that ‘people have a right to be bigots.’ In News Corp publications, not only do people have a right to be bigots, it is seemingly encouraged. The adverse finding against Bolt in federal court did not affect his employment or status at the Herald Sun – in fact he appeared to be rewarded for it with his very own talk show on Channel 10, in which Lachlan Murdoch had a 10% share stake at the time. After dire ratings on 10 led to The Bolt Report’s cancellation, it was moved to Sky News after dark, which morphed from a genuine news station to some sort of horrific retirement home for failed Coalition politicians and conservative reporters. The ardent support given to Bolt by his superiors made it clear how they regarded accusations of racism – with contempt. For his part, Bolt became even more extreme. In 2016 he published an article in which he predicted that ‘soon non-Muslim vigilantes will themselves take up arms’ to defend themselves from an inherently ‘warlike religion that licences our destruction.’ ‘Who could blame them?’ he added. In 2018, Bolt published ‘There is no ‘Us’, as Migrants form colonies’, an article claiming that a ‘tidal wave of immigrants sweeps away what’s left of our national identity … immigration is becoming colonisation, turning this country from a home into a hotel’. Not only was Bolt alarmed by the number of Muslims living in Melbourne suburbs – he also feared the proportion of residents that were Chinese, Indian and Jewish. Bolt, regrettably, is perhaps the most well-known ‘journalist’ in Australia. Two articles published in a newspaper with a weekly circulation of 350,000, the highest in Australia, spoke approvingly of anti-Muslim vigilantes and advocated a form of ‘The Great Replacement’ conspiracy theory. And yet we wonder how a far-right terrorist arose in the midst of suburban Australia?

Central to the radicalisation of the Murdoch press has been the television station Sky News. As mentioned above, Sky News after dark is a furious circle jerk by a group of failed conservative figures. Bafflingly however, it is extremely influential among Coalition MPs and was instrumental in the August 2018 putsch against Malcolm Turnbull. Despite its obvious insanity, few predicted the depths to which the channel would stoop on August 6th 2018, when they invited the Chairman of the United Patriots Front, Blair Cottrell, on for an interview. Cottrell is an open neo-Nazi – he has in the past expressed his desire for copies of Mein Kampf to be distributed to every Australian school student and has called for Hitler’s portrait to be hung from classrooms (as an aside, it is curious for a ‘patriot’ to express such slavish devotion to the movement Australians fought and died against on the fields of North Africa, Greece and Crete). It is worth noting that Cottrell has served prison sentences for stalking and arson.

Now perhaps you could argue that there is no problem with inviting Cottrell on for a tough, hard hitting interview where his views can be thoroughly dissected and exposed. In 2009, the leader of the far-right British National Party Nick Griffin was invited onto the BBC’s Question Time panel wherein he was vigorously examined and shown to be a foolish, racist imbecile. If this was Sky News’s intention, then, they would have been worthy of praise. But it wasn’t. Cottrell was handled with kiddy gloves. The host of the show, former Northern Territory Chief Minister Adam Giles, referred to him endearingly as ”mate.” He uncritically asked Cottrell to explain to the audience ‘who he is’ and ‘where he thinks Australia is going.’ Giles cast opposition to Cottrell as coming from the ‘mad left’. Cottrell shared with the audience his view that ‘national pride is needed to galvanise the masses to protect against foreign ideologies … if we can rebuild or reclaim our traditional identity as Australians, then we may be able … to fix this situation ourselves’. After a jovial, polite chat, the interview ended and Giles took a smiling, all buddy-buddy photograph with Cottrell. At no point did any producer or journalist pause to ask whether allowing a convicted felon onto their program to promote his fascist ideology was the right course of action.

Murdoch’s News Corp is a fundamental threat to Australia’s multi-cultural society and its social cohesion. With their virulent efforts over the past couple of years to defend the ‘rights’ of racists and bigots and their attempts to normalise fringe ultra-right views, it is clear that their only interest is to carve out an Australia in 2019 that resembles that of a far-gone era. One that is white, Christian, hostile to outsiders and based on so called traditional values. Thankfully, as their views drift further and further from the mainstream of Australian public opinion, so too is their mass influence declining. When you vote tomorrow, perhaps a maxim you should follow is this: ”What does Rupert Murdoch want me to do?” Then, as a patriot, do the opposite. It would be the quickest way to building a kinder, more tolerant and forward looking nation.