An Itinerant Abroad Observing American Politics

I am not an American. I am a native born Canadian who practiced law in Toronto and London before becoming a law professor. I have worked in law schools in pre-handover Hong Kong, in New Zealand, and for the last 16 years in Australia. I have had sabbaticals in the United States, Canada, and Britain. And yet despite not being an American I am going to be presumptuous enough to offer some comments about the United States. 

These won’t be disinterested comments because I like the United States a lot. I think America has been, and is, a force for good in the world. Who better today to be the world’s most powerful nation? Of course, I would have said the same about the British Empire up to its post-World War II petering out, so some readers may wish to stop reading right now. Yet my point is that I defer to no one in claiming the crown of being the most pro-American, non-American law professor there is working outside the United States today. 

I am also politically conservative. This means I have spent most of my working life in orthodox Left institutions around the Anglosphere where the median political views are to the left of those of that country’s median political voter. Sometimes that gap amounts to a chasm. And my presumption is that as a sort of itinerant conservative law professor, an outsider’s vantage like mine might offer something insiders are less likely to see. Put differently, my Westminster baggage is not your American Republic baggage—in fact, I have direct ancestors who were United Empire Loyalists, losers like Benjamin Franklin’s son who fled the United States to Canada after the Revolutionary War. (You guys call it that. In the Commonwealth world of Canada, Australia, Britain and more we call it “the American War of Independence.”)

Start with how you run elections. About a month ago, Canada held a federal election. Although I prefer yours, I can assure readers that the political center of gravity in Canada is miles and miles to the left of where it is in the United States. Think of California as a stand-alone country. And yet all the voting in Canada is done with paper ballots. No machine voting. No software in play. It is an analogue world with each political party entitled to have scrutineers (vote counting observers) present throughout the counting. Oh, and voters need to have a voting card plus government issued photo ID (or else have two other pieces of ID with their address on them, or else they can declare their identity and address in writing and have a sponsor of record who knows them, and is him or herself eligible to vote as above, vouch for them). So identification is mandatory. 

Moreover, mail-in ballots are by request of the voter only. Much the same set-up exists in Britain. In Australia, where voting is compulsory (every citizen is legally obliged to vote or that person will be fined), the government makes voters give their names and addresses on receiving their ballots. In none of these countries is there ballot-harvesting. In fact, it is hard for many of us non-Americans to believe ballot-harvesting is allowed to happen anywhere in the developed world, let alone in its most powerful and pre-eminent member.

My point is that no Canadian claims that he or she cannot vote because of the electoral rules. Nor do British voters. In a world that is seriously contemplating (and to some extent has imposed) vaccine passport-type identification rules—and to be clear, although I am double jabbed I am very much against that sort of mandate for a host of reasons—it seems straight out bonkers to me to hear some Americans argue in favor of that sort of ID requirement but at the same time to oppose basic voter ID requirements of the sort that exist across the Westminster world. Or let me put it like this. Canada has a voting set-up that would look tough to Texas Republicans. And Canada sits several solar systems—maybe galaxies—to the left of Texas on the political spectrum.

Then there is Joe Biden. I’d say he won firstly because of COVID (no COVID, no Biden presidency) and secondly because he sold himself as a moderate, safe pair of hands that suburban voters and so-called “NeverTrumpers” could convince themselves wouldn’t go too far to the political Left. Instead, and I quote a savvy political scientist friend here in Australia, “these suburban voters got precisely what they saw and knew, but pretended not to notice.” 

This is a president who is barely articulate; who is unable to field two or three consecutive tough questions; and who looks to any disinterested observer to be significantly impaired in terms of his mental facilities. Think back to the sort of press conferences former President Trump fielded and the level of press hostility to him that oozed through the room, day in and day out, with all the back and forth. Were it not for a sort of journalistic praetorian guard around the current president, one that shields him from all but the softest of softball queries—and even these are frequently fumbled and make for excruciatingly embarrassing TV clips down here in Australia—we would all be openly wondering how much longer he could stay in office. This decline was obvious to any observer before last year’s election, of course. Trump Derangement Syndrome may have given lots of voters grounds “not to notice.” 

But there is a price to pay for willful blindness. That price is especially high for voters on the Right of the political spectrum, those who very much disliked former President Trump’s coarseness, vulgarity and brawler’s instincts and hoped for a relatively painless return to civility in the political sphere without too much long-term damage. From this observer’s perspective that chimera was never on offer. It was a mirage, a fantasy. And any honest assessment should have concluded that was the case before last year’s election. Indeed, if today’s polls mean anything (an open question), then with Biden now down to below 40 percent approval and completely underwater not just with Republicans but with Independents, buyers’ remorse has set in. Big time. Alas, that is not how elections work. As President Obama made clear (when he won, not when Mr. Trump won), elections have consequences. 

I’m with H.L. Mencken on this. Voters deserve to get what they wanted. And they deserve to get it good and hard. For more than a few suburban and NeverTrumper Republicans, I suspect that is precisely how they are getting it at the moment. Whether they can admit as much, to others or to themselves, is a separate question.

Then there is the censorship coming from Big Tech and the overall level of self-censorship in the United States. In terms of constitutional protections for free speech the United States is unsurpassed. It is by far the gold standard of the democratic world. But being able to speak one’s mind freely does not reduce down to the outcomes of First Amendment jurisprudence. Take American college campuses. For someone like me from an Australian university law school I can assure readers that there is far more scope Down Under (note to American readers: Australia does not have a national bill of rights of any sort, because we copied almost exactly the first Madisonian constitution, the pre-Bill of Rights one) to speak one’s mind, and in a way that goes against lefty orthodoxy and without losing one’s job or being cancelled, than there is in the United States. Just look and see what an Ivy League law school does to a professor like Amy Wax. And then there is the blatant censorship of Big Tech. 

To deny this problem is to deny the obvious. One could point to all sorts of N=1 examples. The shutting down of the New York Post’s story about the contents of Hunter Biden’s laptop before the U.S. election. All true. All known to be true at the time. Stifled all the same, and done to the oldest continuously published newspaper in the United States, founded by Alexander Hamilton. 

Or take the theory that the COVID-19 virus escaped from the Wuhan lab. Big Tech, and indeed such august scientific journals as The Lancet, spent well over a year censoring and suppressing anyone who voiced the view that this was the most likely source of the virus. Even a former head of Britain’s MI6 (their CIA) was censored. Except it now appears that this is the odds-on most likely explanation. Whether it is or isn’t, though, is not the point. The point is that a plausible viewpoint or argument was systematically suppressed and censored by Big Tech because it didn’t like the implications—to be honest, the political implications—of this story should it be true. 

All the First Amendment jurisprudence in the world was of no avail because this was not government stifling speech. It was big corporations. Yet many of us outside observers now wonder whether that sort of distinction amounts to a difference in today’s world. If Big Tech overwhelmingly shares the same package of overall political views as one of the two main parties, isn’t this a massive free speech problem? To this non-American it sure seems so.

 Last observation. It’s about the media in the United States, although this could be said about the media in all the Anglosphere countries I’ve mentioned. Have we moved back to the world of the 1820s where different newspapers overtly and unashamedly represent “their” political party? Instead of TV networks, newspapers, and other media outlets claiming (or pretending) to be impartial, disinterested mouthpieces, are we back to a world where you pick your point-of-view knowing when you go in that this is the view you’re buying? And is that in fact actually a worse set-up? 

Now if everyone knows we’re back in the 1820s and that’s the game again, we can sardonically smile when reading such po-faced assurances of balance and impartiality as that of the New York Timesor of any cable news network. As I said, this seems particularly obvious to this outsider. And that goes some way to explaining the public’s collapsing trust in the honesty and integrity of the media class. Of course, that take on the U.S. media is the optimistic one. The pessimistic one would see today’s media world not in terms of a return to the 1820s. Rather, it would suggest that we are moving toward the controlled, utterly manipulated media of Orwell’s 1984, “memory holes” et. al.. 

 So there you are, a few observations by this pro-American, non-American itinerant law professor. Note, to finish, that if this is how things look to a pro-American law professor within the Anglosphere, imagine how they look to the non-western world. This too is important, for America has played an important role by example to freedom-loving people all over the world.



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About James Allan

James Allan is Garrick Professor of Law, University of Queensland.  He is a native born Canadian who practiced law at a large firm in Toronto and then at the Bar in London before moving to teach law in Hong Kong, New Zealand and then Australia.  He has had sabbaticals at the Cornell Law School and the University of San Diego School of Law in the United States and at Osgoode Hall Law School and the Dalhousie Law School in Canada (where he was the Bertha Wilson Visiting Professor of Human Rights), and at King’s College Law School in London. His book, "The Age of Foolishness: A Doubter’s Guide to Constitutionalism in Modern Democracies," is due out soon with Academia Press.

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