The Role of the Conclave
By: Aivintis; Published 2024
In the 1824 United States Supreme Court Case Osborn v. Bank of the United States, John Marshall wrote for the majority that, “Courts are the mere instruments of the law, and can will nothing.” [1] Within the context of the United States, this became less and less true overall as time passed. Within the context of NationStates, the ability of a government body to fulfill its intended purpose is much easier to evaluate, as there is no government older than twenty years and therefore little backsliding and political evolution on a grand scale.
The Concordat of The East Pacific is 15 years old. Under the Concordat, our East Pacifican Confederation was designed according to Montesquieu’s ideas of separation of powers. Under this three-branch structure, the Judiciary serves as an equal balance to the Executive and the Legislature – both play a part in the appointment of Judges, with neither having more control, and both can have their actions subject to the courts.
However, The East Pacific is not like a traditional Montesquieuan government. For one, there exists a fourth branch, which has been formalized as of 2020 under the name of ‘The Praesidium.’ This is the security branch, evolving from the unique circumstances of GCRs and frontiers, which are inherently vulnerable to outside raids. Unlike real life governments, security is not a matter of the army, but rather a matter of maintaining endorsements and influence, while staying vigilant against enemies.
The Praesidium is built to deal with crimes like these, those which threaten the security of the region and its democracy through exceeding the endorsement cap, abusing the power of the delegacy, sharing privileged information, and other crimes which fall under the Treason Act. The Praesidium is built to respond quickly and effectively to keep the region safe from these subversions of democracy.
Although the intention of the Praesidium is that, after securing the region from these threats in the short term, there remains a fair trial for those who committed the crime, the Praesidium will not act without evidence either, and its reactionary nature often means that there is no disputation that a crime has been committed. The trial of Fedele was a formality, with the cabal already expelled and their crimes fully exposed. The Praesidium is where people report these crimes. The Praesidium is where these crimes are initially addressed and, once attempted and failed, most criminals of this sort tend to throw in the towel and move on, particularly crashers.
In considering the role and the power of the Praesidium, one notices that the Conclave’s role as a criminal court is severely handicapped. The Praesidium does not necessarily have a hand in uncovering and punishing election crimes (though it could be involved in the process of investigation and prosecution), but only because the Conclave doubles as the Election Commission – if there was an independent Election Commission, it’s possible that this role would be removed from Conclave as a de facto matter.
Within the world of NationStates, it’s not necessarily dictatorial for there to be no criminal court. In the Supreme Court of the Free Nations Federation, only two trials have been prosecuted, and both were abandoned or largely dismissed based on conflicting principles of IC and OOC which the Supreme Court dealt with. There are few crimes to commit in NationStates. OOC Administrations have their own rules and procedures for punishment. A region could reasonably, completely function without a criminal court.
In The East Pacific, there hasn’t been a criminal trial in four years. The trials we have had in public memory were generally formalities. Fedele’s cabal was widely, apparently guilty. The Python was as well, and admitted as such during the trial, though disputing it was impossible. Anur-Sanur and Moneyness’s crimes amounted to flaming and flamebaiting, Krayt III and Lord Zannah were tried for a crime easily proven by looking at the dates of posts, and I could go on. The only thing Conclave trials have ever decided is the severity of the punishment, which is decided in closed chambers by Arbiters anyway.
Even appeals and civil trials, another power of the Conclave, are exceedingly rare. In fact, there has never been a single instance in which a civil trial or appeal has been accepted by the Conclave for review. Out of those filed, Hobbesistan’s 2022 civil action application was really one for judicial review, and was withdrawn in favor of such, Vavlar’s ban appeal was OOC, and the remaining two, both against Aivintis, were dismissed due to the first suit following improper procedure and the second suit displaying ‘lack of merit.’
Election complaints are similarly unheard of. Apart from Davelands’ October 2019 complaint, which was not just dismissed but was blatantly a scheme to polarize elections for the coming coup d’etat and Bachtendekuppen’s October 2019 complaint, which included blatant proof of crime preparing again for said coup d’etat, there have been only two. One was filed by Pakitsk against Pakitsk, and could have easily been a Judicial Review if that wasn’t less comedic. The other was filed by Todd McCloud in June 2019 as a formal request to re-evaluate procedure.
Civil trials and election complaints are probably the closest the court has come to the “judicial paradigm” of popular legal theory. Under the judicial paradigm, the court acts as an adjudicator in a particular dispute between two parties. The dispute is brought by at least one party, they argue according to fixed procedures, and the judge may decide by clearly applying pre-existing rules. The ultimate goal is to “call balls and strikes, and not to pitch or bat,” as Chief Justice John Roberts said [2] in order to resolve a dispute without violence.
In The East Pacific, however, there is no way to resolve disputes with violence. The closest one can get is a flamewar on discord, which OOC Administration is equipped and impelled to prevent or end. Furthermore, as the record has shown, very few disputes even arise. Those that do often do not need an adjudicator along the judicial paradigm. They may need a mediator, but ultimately whether or not Wallenburg and The Fourth Imperium were right in their civil suits against me does not do much to change the fact that little to no real damage was done – and they could have both easily resolved the dispute through a legislative amendment formalizing and clarifying their stance as binding law, rather than wading into interpretation and judicial discretion.
There are other, less obvious roles that real life courts show, which we must consider in order to further analyze the role of the Conclave. For one, courts can inherently serve as an instrument of social control. According to former UC Berkeley Law Professor Martin Shapiro, the mere fact that judicial rulings have applicability beyond any one dispute brought before the bench “imports some element of social concern beyond the particular concerns of the particular disputants” [3] – in other words, courts inherently serve to impose social and moral order over a large population. In The East Pacific, of course, these roles are filled by the OOC Administration, and is not required of any government body.
In summary, the criminal court, the civil court, and the elections court are redundant roles of the Conclave. What is left, then, for the Conclave to be, but a Constitutional court. In the United States, the Supreme Court was not established initially as a Constitutional court. Indeed, unlike the Concordat or most regional governing documents, the US Constitution does not confer the authority of judicial review unto the Supreme Court. This authority, instead, was seized in 1803 by the Supreme Court in the case of Marbury v. Madison.
Over the course of the next two hundred years, this power would expand. Soon, the court was “legislating from the bench,” as Senator John McCain would decry in his 2008 Presidential campaign. In the present day, the political alignment of a Justice matters, as they retain significant power over policy in the form of redefining what is or isn’t Constitutional. It is in this real world environment that the Conclave was created as a Constitutional court, which is its main role even now.
The Conclave was built to be a Constitutional court, first and foremost. Over the years, that’s the only true role it has held and upheld, over and over. Unlike the Constitutional court of the United States and many other nations, this was an intended role of the Conclave. It was not meant to be a ‘mere instrument of the law [that] can will nothing.’ It was always meant to have the power to legislate from the bench through broad interpretation. In practice, that has continued, with judicial review and advisory questions being the most common – and realistically only – task the Court faces.
The question is, why? In the United States, constitutional amendments are almost never possible, and so there is an arguable need to rely on legislating from the bench. However, in The East Pacific and most regional governments, amendments are a relatively easy process. One can pass an amendment to the Concordat with one week of discussion, one week of Magisterium voting, and one week of referendum voting. It is not difficult to make the law clearer, and so there is very little need to have something which is not clear made clear only through judicial review.
Indubitably, the reaction to most judicial review rulings or advisory questions are amendments to statutory law or the Concordat. CyberiumShadow’s 2023 judicial review regarding the Citizenship Office operation suspension during the nomination and voting period of Delegate Elections led to an amendment of the Delegate Elections Act, for example. In the case that such clarifying amendments occur, the extra step of Judicial Review only lengthens the time period. Removing the review from the equation doesn’t change anything.
In the cases where amendments are not made as a response – such as, for example, the case of the Judicial Review on the legality of the Vice Delegate, which simply confirmed what had been in public consciousness – the best possible thing it can achieve is saving time and effort from the Magisterium. Even so, that can only occur if, hypothetically, Conclave verdict comes within three weeks. In some cases, that has not been achieved, and it would have been easier for the Magisterium to have clarified itself.
Furthermore, I ask: Do we want less things for our legislature to do? As Thaecia has discovered, there is only so much a legislature can do. Delegating clarification to a Conclave which legislates from the bench – especially as a far less democratic and inclusive body than the Magisterium – only takes the opportunity of participation away from members of our region. Of course, Thaecia suffered more than we might, as it was a legislature-centric region and we are Executive-centric, but it would be nice to have more activity in the legislature as well.
That’s the best case scenario. The worst case scenario is one we have seen already, in August of 2022, when the Conclave unilaterally decided, against popular community will, that an amendment to the Concordat was illegal, and the entire government for the past two years had been illegitimate. Under this ruling, the Delegate was illegally occupying the Delegacy, but so was the entire Court. They legislated themselves out of existence, and the undemocratic exclusivity of the Conclave meant there was nothing the people could do.
This ruling was overturned, but not before it disillusioned many residents and citizens with the members of Conclave and the government as a whole. Certain members decided to leave the region for a very long time in response, and the backlash was so harsh that the OOC Administration had to step in and manage the conversation directly. It led some to resent members of the Conclave. When the democratic will got a chance to speak again, on the reconfirmation of the Arbiters, they were rejected in favor of new applicants.
The entire ruling was made on the concept of ‘rule of law’. Under a legislative court, Professor Martin Shapiro argues that, “‘rule of law,’ to the extent that the concept is intended to mean that judges apply only pre-existing law, can never exist.” [4] Since the Conclave is capable of making policy decisions and defining ‘law,’ and rule of law is inherently a social construct shaped by their interpretation, the Conclave cannot operate under a rule of law which exists in a vacuum. They define it. They chose to define it this way in August 2022, and they chose to define it differently when the ruling was overturned.
If the worst case scenario is the near-annihilation of our regional government and community, and the best case scenario is that we save a few weeks of work, work which we might want anyway in order to fuel activity within the region and give newer Magisters easier tasks to do, there is no need for the Constitutional court within the government of The East Pacific. However, it is unthinkable to abolish the Conclave, even when we struggle to fill it, we struggle to keep it active, and each Arbiter we appoint is one less Magister. Even when it threatens our community life.
Again, I ask, why? Why is it unthinkable? Because we all live in a world where courts are necessary, and therefore cannot overcome our cognitive bias. Although we see the differences between NationStates and the real world, at least in the separation of OOC Administration and IC government, we still cannot conceive that a government can exist which does not need a court. Furthermore, there is a certain aesthetic value to it – it’s no secret our government was largely modeled off of the United States.
I will not be proposing to abolish the Conclave anytime soon. However, I do see it as a largely vestigial body, one whose roles can be split between the other three branches with equal balance of power fairly easily. I also believe that, because East Pacificans are not the only people with these cognitive biases, the existence of this vestigial structure grants legitimacy to our democracy and justice system in the eyes of others. I don’t believe it is necessary to keep, nor necessary to abolish. It simply exists.
[1] Osborn v. Bank of the United States, 22 U.S. 738 (1824). https://supreme.justia.com/cases/federal/us/22/738/.
[2] John Roberts Confirmation Hearing for Chief Justice of the United States, Senate Judiciary Committee, 109th Cong. (2005) (testimony of John Roberts).
[3] Shapiro, Martin. Courts: A Comparative and Political Analysis. University of Chicago Press, 1981. pp 26.
[4] –––. “Judges as Liars.” Harvard Journal of Law and Public Policy; Cambridge Vol. 17, Iss. 1, (Winter 1994): 155.