The executive and a federal structure - an idea

[Aliasi Stonebender]

[quote="Salzie Sachertorte":1prqumhv][quote:1prqumhv]Presumably, a diligent webmaster would deal with any discrepancies in the Wiki -[/quote:1prqumhv]

OOOh! Do I hear you volunteering? Contact Gwynn! [/quote:1prqumhv]

The Wiki is not Gwyn's domain, but my private webserver. (It's also, as well-established previously, [i:1prqumhv]my[/i:1prqumhv] server, not beholden to the city, but provided by me as a charitable service.)

Which, scary language aside, just means you have to contact ME to set up a wiki account, which allows you create and edit access. I just check every once in awhile to make sure nobody's creating false laws or editing transcripts and the like.

(Which, of course, leads to "how do we know [i:1prqumhv]you[/i:1prqumhv] aren't, Aliasi?" to which I reply "You don't. I can recommend some wonderful web-hosting deals if you're that worried." )

[Jon Seattle]

Justice,

It seems to me that you are within a stone’s throw of finding a nice compromise between the CSDF and DPU’s position on this topic. And if your proposal becomes the DPU’s proposal, congratulations.

However, many would agree that doing something as fundamental as replacing the Guild with this new executive should require a constitutional amendment.

You may say that, well, we will just have the AC (Guild) report to this new executive, but that is clearly not outlined in the constitution.

Up to new the AC handled almost all of the functions you reserve to the new executive. So your bill would establish two bodies with overlapping functions.

You may argue that these functions are not per se. established by the constitution, but they are by precedent. The AC (Guild), while it exists, could at any time challenge this assignment of responsibilities, and since the Guild is not under the direction of the RA, it would probably be successful in reserving those functions to itself.

I think we could go ahead with something similar to your proposal passed as a bill, but only if we first pass a constitutional amendment delegating all of the Guild’s current powers to the RA so it can delegate those on to the new executive.

By the way, it seems clear to me that any proposal that involved the creation of a new elected body would require a constitutional amendment, not only to clean up the situation with the AC, but to establish the new body. But because your proposal does not do this, an additional amendment will not be required.

But I am now very curious. Why would you want to do this as a bill instead of an amendment?

[Justice Soothsayer]

Glad to hear that we are finding common ground.

Our Constitution, quite rightly, is more difficult to amend than it is to pass of RA acts. If we enshrine the Burgermeister idea in the Constitution, it therefore will be more difficult to eliminate it if it becomes unworkable. I would like to retain the flexibility of future change by making this an act of the RA rather than an amendment, though if the Burgermeister position survives the test of time (and as we grow), it may be appropriate to amend the Constitution.

[Ashcroft Burnham]

[quote="Jon Seattle":n0gsdcj9]However, many would agree that doing something as fundamental as replacing the Guild with this new executive should require a constitutional amendment.

You may say that, well, we will just have the AC (Guild) report to this new executive, but that is clearly not outlined in the constitution.

Up to new the AC handled almost all of the functions you reserve to the new executive. So your bill would establish two bodies with overlapping functions.

You may argue that these functions are not per se. established by the constitution, but they are by precedent. The AC (Guild), while it exists, could at any time challenge this assignment of responsibilities, and since the Guild is not under the direction of the RA, it would probably be successful in reserving those functions to itself.[/quote:n0gsdcj9]

This seems to surmise perhaps the most fundamental differences between the two positions: those who favour an amendment to the written constitution argue, as you have done, that, although the written constitution does not provide expressly (or, even, on the face of the document, by implication) that the Guild shall (a) have executive power; and (b) have that power exclusively, because it has, in fact, exercised such powers in the past (albeit subject to the detailed planning legislation passed by the Representative Assembly), that that creates an historical precedent that has the same effect as a provision to that effect in the written constitution such that only a new provision in the written constitution that expressly overturns that precedent can lawfully reverse it.

Those, conversely, who favour a standard Act of the Representative Assembly, argue that, since the written constitution does not expressly provide that no body other than the Artisanal Collective may possess the powers of the sort that are sought to be delegated to the new Burgermeister, the wording of the constitution need not change in order to permit that to be done.

Without suggestion of ulterior motive, the difference is not one of policy, but of interpretation an reasoning. Does the fact that a body established by a written constitution has historically discharged certain functions entail that it must continue to discharge those functions unless the written constitution is amended to state that it need not?

I must say, I have considerable difficulties in seeing how it does. There seem to me to be a confusion between the two senses of the word "constitution", being (1) the written document headed "Constitution", and (2), as a matter of fact, how the state of Neufreistadt is constituted. The historical position of the Guild is clearly a part of the constitution in the second sense but not in the first. It seems to be assumed on the part of those stating that constitutional change is required that the effect of the second is identical to the first, but it is hard to see how that can be: the written constitution has, for good reason, a special status, since it is the document agreed on by the founders, and expressly agreed on by all new citizens who join the city/confederation. There is a specific procedure for amending the written constitution, and things in the written constitution have a special status, whereby they cannot be amended without an enhanced majority.

Specifically, if anybody at any time in Neufriestadt's history were to have proposed that the written constitution be amended to state expressly that the Guild has the functions and powers that it has historically assumed, then there would need to have been an Act of the Representative Assembly, debated in advance, passed with the enhanced majority, and ratified by the Scientific Council. Those are the safeguards that are put in place in respect of constitutional amendments for good reason, precicely because all of that procedure is required again to change it back.

It would, it seems to me, wholly circumvent those necessary safeguards if the mere fact that something has tended to have been done a particular way in the past was capable of assuming exactly the same constitutional significance as something in the written document itself. The reasons behind people just doing things in a particular way over a particuilar time can be quite different to the reasons for people deciding to make an express amendment to the written constitution, and it is difficult to see why they should in those circumstances have the same consequences. Those who perpetuated the Guild's position may have done so only on the basis that it was the only viable mechanism to acheive the ends at the time, not on the basis, as would have been required if there were to be a constitutional amendment to enshrine the Guild's position, that that is the way that it should always be done. It would seem silly to make a constitutional rule out of a practice that it is quite possible (indeed, probable) that nobody ever intended to have the significance of a rule, let alone as important a rule as one contained in a written constitution.

It might be said that the precedent of the Guild's position is akin to a judicial precedent, and therefore creates a "common law of the constiution", which must then be followed. That position, however, fails to account for the special status of express judicial decisions: unlike a practice that happens to emerge over time, and can emerge for any number of reasons, a judicial decision (at least one that has the force of binding precedent) is made by a judge, having heard full argument from both sides as to why there should and should not be such a rule as is contended for, and who makes the decision expressly considering the outcome of the decision as a rule that will apply to future cases. A judicial decision is also of special significance in a way that an emergent practice is not because, by its very nature, to be of any value, a judicial decision must be binding, whereas that is not true with a mere practice.

In conclusion, it seems that those who state that an amendment to the written constitution is essential to create the office of the Burgermeister of Neufreistadt do so on the basis that the fact that something has always been done entails that it must always so be done unless the constitution is amended to say otherwise. For all the reasons given above, I have great difficulty in seeing how that assumption could be grounded.

[Jon Seattle]

[quote:udvp7ido]This seems to surmise perhaps the most fundamental differences between the two positions: those who favour an amendment to the written constitution argue, as you have done, that, although the written constitution does not provide expressly (or, even, on the face of the document, by implication) that the Guild shall (a) have executive power; and (b) have that power exclusively, because it has, in fact, exercised such powers in the past (albeit subject to the detailed planning legislation passed by the Representative Assembly), that that creates an historical precedent that has the same effect as a provision to that effect in the written constitution such that only a new provision in the written constitution that expressly overturns that precedent can lawfully reverse it. [/quote:udvp7ido]

This is a very important issue. But remember we began this debate by discussing an executive branch. It became clear that the AC as designed might not serve that purpose as well as we would like. Lets not loose sight of that goal, unless you consider this constitutional debate to be more to the point.

[quote:udvp7ido]Without suggestion of ulterior motive, the difference is not one of policy, but of interpretation an reasoning. Does the fact that a body established by a written constitution has historically discharged certain functions entail that it must continue to discharge those functions unless the written constitution is amended to state that it need not? [/quote:udvp7ido]

Historically we were a voluntary project that came together to create a themed community in second life. The founders (some are certainly still here, for example the dean of our SC) were not lawyers or professors presenting muti-volume legal codes, but ironed out a basic agreement about how things would work in the cooperative. From a lawyers point of view there is a lot of chopping and straining that can be done, because things were left unsaid. But it is clear to me that the founders did intend a separation of powers and intended to write that into the constitution.

You aim at drastically altering the basic agreement (that we all signed on to) without the additional review that a constitutional amendment provides. It seems to me that your reasoning, if it prevails, drastically weakens all constitutional protections. Given your reasoning, please explain exactly under what conditions you would consider the constitution as now written to any a limit on RA action?

[quote:udvp7ido]In conclusion, it seems that those who state that an amendment to the written constitution is essential to create the office of the Burgermeister of Neufreistadt do so on the basis that the fact that something has always been done entails that it must always so be done unless the constitution is amended to say otherwise. For all the reasons given above, I have great difficulty in seeing how that assumption could be grounded.[/quote:udvp7ido]

Nonsense. We are arguing that removal of the AC (Guild) requires a constitutional amendment. The RA could establish the office of the Burgermeister, or even a choir of one hundred Burgermeisters in song, but they would still have no authority to take over the work of the AC.

[Ashcroft Burnham]

[quote="Jon Seattle":3cixz49a]This is a very important issue. But remember we began this debate by discussing an executive branch. It became clear that the AC as designed might not serve that purpose as well as we would like. Lets not loose sight of that goal, unless you consider this constitutional debate to be more to the point.[/quote:3cixz49a]

This thread, although perhaps not the wider debate, started with a discussion about a possible efficient means of delegating the executive authority currently held by the Representative Assembly. The wider debate seems to be about how the function of the executive should be discharged, not just about such a thing as "an executive branch", although the debate does, of course, encompass that.

[quote:3cixz49a]Historically we were a voluntary project that came together to create a themed community in second life. The founders (some are certainly still here, for example the dean of our SC) were not lawyers or professors presenting muti-volume legal codes, but ironed out a basic agreement about how things would work in the cooperative. From a lawyers point of view there is a lot of chopping and straining that can be done, because things were left unsaid. But it is clear to me that the founders did intend a separation of powers and intended to write that into the constitution.[/quote:3cixz49a]

That may be so, bu that does not alter, does it, the proposition that that which [i:3cixz49a]is[/i:3cixz49a] written in the constitution must have greater authority than that which has merely be assumed? None of what you write above undermines the reasoning that I outlined in some detail above about why the written constitution should be treated in quite a different way to custom.

[quote:3cixz49a]You aim at drastically altering the basic agreement (that we all signed on to) without the additional review that a constitutional amendment provides.[/quote:3cixz49a]

I'm not sure that that's true, is it? We agree to abide by the constitution and the laws created thereunder (a necessary implication of that being that the written constitution is supreme over all other customs and legislation). What people agree to is what is written, not necessarily all the extra things that are by custom done but not written (that, after all, new people joining would have no means of knowing about until after they joined).

On the other hand, as I pointed out above, permitting an emergant practice to have the same force as the written constitution does precicely what you are concerned at, viz. having the effect of amending the constitution without any of the procedural safeguards. The model that I put forward, that, in an amended form, has become the official model of the governing faction, at least has the procedural safeguards (debate in the Representative Assembly, requiring a majority thereof, and requiring ratification) that a piece of ordinary legislation does: in other words, everything that a constitutional amendment has in the way of procedural safeguards, bar the enhanced majority required.

[quote:3cixz49a]It seems to me that your reasoning, if it prevails, drastically weakens all constitutional protections. Given your reasoning, please explain exactly under what conditions you would consider the constitution as now written to any a limit on RA action?[/quote:3cixz49a]

I'm not sure that I follow this reasoning, I'm afraid: how does treating what is written in the constitution differently to mere emergant practices weaken "all constitutional protections"? How, for example, does it weaken the requirement that the Representative Assembly be elected and sit for a fixed term, the requirement that the Scientific Council ratify legislation for constitutionality, and the power of the Guild to veto a revenue bill, or call for impeachment of members of the Representative Assembly on grounds of financial imprudence?

To state that it "weakens" constitutional arrangements in the wider sense of "constituional" (i.e., arrangements connected with the way in which Neufreistadt is, in fact, constituted, as opposed to what is in the written constitution) assumes what it sets out to establish, viz. that those arrangements had the same strength as the written provisions in the first place, which, for all the reasons that I gave in my last post, it is hard to see how they could.

[quote:3cixz49a]Nonsense. We are arguing that removal of the AC (Guild) requires a constitutional amendment.[/quote:3cixz49a]

Nobody is disagreeing with that. What does seem to be a matter of dispute is whether creating the office of Burgermeister entails the removal of the guild. You argue that the functions traditionally performed the the Guild would "overlap" with those to be performed by the Burgermeister, and, to provide for a Burgermeister would therefore entail a change in the Guild's historical position, which, you argue, has the same status as something written in the constitution. For the reasons that I have already given, an historical practice cannot sensibly be said to have exactly the same effect as the written constitution, so this argument, resting as it does on the one that I deal with above, it seems to me, must fail.

Ultimately, it might well be that the written constituion does not quite do what those who established this community originally wanted it to do because the functions of the various bodies were not clearly expressed, but that does not mean that the written constitution must now be assumed to state what, on reflection, one might consider that it should have stated: there is good reason to give primacy even to a document that is in some respect flawed, because that document, and not necessarily all of the ideas behind it that were not reflected in its wording as accurately as those who drafted it may have hoped, is the basis of the (uniquely literal) social contract upon which this state is built, and the only truly neutral basis for arbitration in the event of a dispute. That, incidentally, is an important part of what we mean when we say that we do not permit a man to rule, but the law.

[Claude Desmoulins]

[quote="Jon Seattle":5bsr934h]

This is a very important issue. But remember we began this debate by discussing an executive branch. It became clear that the AC as designed might not serve that purpose as well as we would like. Lets not loose sight of that goal, unless you consider this constitutional debate to be more to the point.

Historically we were a voluntary project that came together to create a themed community in second life. The founders (some are certainly still here, for example the dean of our SC) were not lawyers or professors presenting muti-volume legal codes, but ironed out a basic agreement about how things would work in the cooperative. From a lawyers point of view there is a lot of chopping and straining that can be done, because things were left unsaid. But it is clear to me that the founders did intend a separation of powers and intended to write that into the constitution.
[/quote:5bsr934h]

And they did. The powers of the AC are enumerated in Article II, Section 4. If you look at the old posts and discussions, there was, I believe, an effort to function without a defined executive. As the city grew, there was a sort of 'executive vacuum' into which the AC stepped. Thus certain AC functions became customary. If however, all these customs are to have the weight of a UK-like 'unwritten constitution, why bother with a written one?

[quote:5bsr934h]
You aim at drastically altering the basic agreement (that we all signed on to) without the additional review that a constitutional amendment provides. It seems to me that your reasoning, if it prevails, drastically weakens all constitutional protections. Given your reasoning, please explain exactly under what conditions you would consider the constitution as now written to any a limit on RA action?
[/quote:5bsr934h]

Whoa. Isn't the CSDF the faction proposing that the AC be replaced by a cabinet which a) has no veto power and b) can be sacked by the RA majority at a blink?

We merely propose that the Ac's constituional powers are actually limited to those enumerated in the written constitution. For example, the GM has tradidionally had charge of code enforcement, although there's nothing in the constitution about this power. However, the CC&R clearly states that it is superceded by RA legislation. Therefore we're back to the idea of the RA delegating its authority.

[Jon Seattle]

[quote:aaussgz2]And they did. The powers of the AC are enumerated in Article II, Section 4. If you look at the old posts and discussions, there was, I believe, an effort to function without a defined executive. As the city grew, there was a sort of 'executive vacuum' into which the AC stepped. Thus certain AC functions became customary. If however, all these customs are to have the weight of a UK-like 'unwritten constitution, why bother with a written one? [/quote:aaussgz2]

While I agree with this ideal to some degree, unfortunately, there is a great deal missing from the paper document. It seems to me this approach, we will go by the paper document only, is interesting. But where does it leave the RA? It is really not clear that these functions are given in any form to the RA to delegate. Are you saying, Claude, that the RA has all and any powers that are not in the written document? If not, where does the RA get the right to delegate these.

That is where this reasoning becomes problematic. Either the RA has only the powers described by the constitution and then an amendment is needed, or is has all the powers not described in that document.

[Justice Soothsayer]

[quote="Jon Seattle":2hpdtzfs]That is where this reasoning becomes problematic. Either the RA has only the powers described by the constitution and then an amendment is needed, or is has all the powers not described in that document.[/quote:2hpdtzfs]

Now our discussion is turning to a very interesting area, the "docrtine of enumerated powers". See, http://en.wikipedia.org/wiki/Enumerated_powers and http://reasonsvoice.com/articles/the-go ... ed-powers/

Our Constitution speaks clearly regarding the powers of the three branches of government in relation to each other. Indeed, the "powers" sections [Art. I, Sec. 7; Art. II, Sec. 4; and Art. III, Sec. 8] deal ONLY with the powers of each branch of government as it relates to the other branches.

The Constitution does provide a "governmental" and "service" role for each branch, though it teaches us very little regarding the powers that go with each role. Perhaps we should enumerate those powers, but doing so certainly would require amending the Constitution.

But to get back to my proposed legislation, I would like to point out that it does not replace the AC, although perhaps CSDF's discussion of doing so was the impetus for the start of this conversation. Under my proposed bill the AC would continue to have its veto over revenue bills and its other constitutionally defined functions and roles.

[Jon Seattle]

Just for discussion. (I would need to consult with my faction for our official position) lets consider the following possible changes in Justice’s bill:

1. The bill would now become an amendment to the constitution and would also remove the AC (Guild).
2. Removing the Governor would require a two thirds vote. Not just a majority as in the current draft.
3. The Governor would be allowed to veto legislation passed by the RA. The RA could override a veto with a two thirds vote.
4. Add a provision requiring citizen group participation in the planning process, this to be defined in additional regular legislation.

I see this approach as addressing many of both CSDF and DPU concerns. Why not try for consensus instead?

[Patroklus Murakami]

To follow on from Justice's point there is a problem with the way this Bill seeks to provide powers for the Burgermeister.

The Bill involves the RA handing authority for "the use to which any and all land in Neufriestadt shall be put" to the new Burgermeister. By what authority does the RA hand this power to the Burgermeister? The Constitution says that the RA's "governmental role is to pass laws and its service role is to promote the city and perform long-term planning." Its powers include setting the taxation rate and the city budget. The Constitution is silent on the question of the use of land.

I would contend that the RA does not have the authority, under the current Constitition, to delegate authority it does not possess to another body. The Bill would, therefore, be unconstitutional and would have to be struck down by the SC.

This makes a constitutional amendment more obviously necessary in order to move forward. Is the DPU prepared to discuss one? I'm sure we could find a solution both factions could sign up to if this point were to met.

[Claude Desmoulins]

[quote="Jon Seattle":27pqhtqk]Just for discussion. (I would need to consult with my faction for our official position) lets consider the following possible changes in Justice’s bill:

1. The bill would now become an amendment to the constitution and would also remove the AC (Guild).
2. Removing the Governor would require a two thirds vote. Not just a majority as in the current draft.
3. The Governor would be allowed to veto legislation passed by the RA. The RA could override a veto with a two thirds vote.
4. Add a provision requiring citizen group participation in the planning process, this to be defined in additional regular legislation.

I see this approach as addressing many of both CSDF and DPU concerns. Why not try for consensus instead?[/quote:27pqhtqk]

One issue we'd have to tackle would be what happens with multiple sims. The bill as written says nothing about CN. If we create an analogous Praetor there, how does the veto work?

Perhaps the burgermeisters/praetors/etc. could meet as a group onece there are multiple sims and the group could collectively hold veto power.

Also, i would think one would need to make explicit that a Burgermeister could not veto his or her own removal.

[Claude Desmoulins]

[quote="Patroklus Murakami":10lvsmov]To follow on from Justice's point there is a problem with the way this Bill seeks to provide powers for the Burgermeister.

... The Constitution is silent on the question of the use of land.

I would contend that the RA does not have the authority, under the current Constitition, to delegate authority it does not possess to another body. The Bill would, therefore, be unconstitutional and would have to be struck down by the SC.
[/quote:10lvsmov]

If you follow that reasoning, no one has the constitutional authority to make land use decisions. Nevertheless, land use decisions are made.

The CC&R, also a founding document says in part:

[i:10lvsmov]Community
Government
- All covenants are subordinate to city laws and zoning guidelines[/i:10lvsmov]

City laws are the province of the RA. The CC&R covers land use rules and explicitly states that laws can alter its provisions.

[quote:10lvsmov]
This makes a constitutional amendment more obviously necessary in order to move forward. Is the DPU prepared to discuss one? I'm sure we could find a solution both factions could sign up to if this point were to met.[/quote:10lvsmov]

I would still see an amendment as necessary only if this structure replaces the SC. Under Jonj's latest proposal, it would do that, making amendment necessary.

[Ashcroft Burnham]

[quote="Patroklus Murakami":2t9dm6im]To follow on from Justice's point there is a problem with the way this Bill seeks to provide powers for the Burgermeister.

The Bill involves the RA handing authority for "the use to which any and all land in Neufriestadt shall be put" to the new Burgermeister. By what authority does the RA hand this power to the Burgermeister? The Constitution says that the RA's "governmental role is to pass laws and its service role is to promote the city and perform long-term planning." Its powers include setting the taxation rate and the city budget. The Constitution is silent on the question of the use of land.[/quote:2t9dm6im]

I'm not sure that I follow your reasoning: the [b:2t9dm6im]Burgermeister of Neufreistadt Act[/b:2t9dm6im] is a piece of legislation passed by the Representative Assembly. The power to do so is therefore contained in the general provision that the Representative Assembly has the power to "pass laws". That there shall be a Burgermeister of Neufreistadt is something capable of being provided for by law.

You will note that the constitution also does not specifically mention that the Representative Assembly has authority to authorise the construction of a fountain, adopt a national flag, pass planning legislation, or provide for limited companies; do you think that each of those acts of the Assembly are also ultra vires for the same reason? If not, what is the difference in this case? If so, what laws do you think that the Assembly has the power to pass, and where is it set out how those should be limited?

[Ashcroft Burnham]

[quote="Claude Desmoulins":3onjm3hy]If however, all these customs are to have the weight of a UK-like 'unwritten constitution, why bother with a written one? [/quote:3onjm3hy]

If the customs had the weight of the UK's unwritten constitution, then there would be no doubt that the legislature would have the power to overturn them: the UK has the doctrine of parliamentary supremacy.