A quote: "In a mixed constitution where the bounds of the respective powers are not precisely and effectively fixed, their actual relations at any time will be determined by the accident of personalities and the advantage which the need of surmounting emergencies, or the prestige of emergencies already surmounted, may give to one institution or another"

Apparently that is by Richard Pares from George III and the Politicans. I found it from Andrew Lintott's book on the Roman Constitution when he was discussing Polybius' description of constitutional progression.

One of the interesting aspects of the Bush Administration is that they haven't really taken anything head on constitutionally. They have been pretty careful where they have asserted executive sovereignty.

They have chipped away at what we would call conventions by asserting their sovereignty over them from the legislative and judicial. A good example is executive privilege, they have expanded sovereignty over that to near absolute levels.

In other areas they have manipulated circumstances such that what conventions do exist, are not backed by concrete law, and consequently the executive can assert the dominance. An example of this is Guantanamo. It is geographically situated such that the law presiding over it is confusing and uncertain. As a result, any convention that does exist, the executive has asserted their sovereignty over.

It is interesting to note that they have explicitly avoided allowing judicial rulings that may limit or remove their executive sovereignty over existing or new conventions relating to Guantanamo. This is the benefit of statutorial and constitutional law.

For all the Bush Administration's bluster on the unitary executive, and its supposed blasting through the constitution as 'just a piece of paper', it has only been caught out in a couple of areas by the legislative and judicial. FISA being one, and it appears the Hatch Act another.

In the case of ignoring FISA, the other method of ignoring convention and law; the emergency, in which the executive assumes the responsibilities of all branches of government and can suspend constitutional workings - in order to save the constitution - were proffered as excuse.

Another recent example is the sacking of US Attorneys. Convention was that an incoming President would replace all the US Attorneys when they came in, unless there was a conflict of interest, in which case the Attorney would continue the case where there was a conflict, and then be replaced upon the case's conclusion.

The Bush Administration sacked several US Attorney's midway through their expected terms. There has been a reaction of horror, partly because the sackings were obviously political, but also as it is assumed convention has the power of practice.

That is a wrong way to view convention, as it exists solely on sovereign whim - or 'the pleasure of the President' - which Bush displayed when sacking the US Attorneys. To use Pares' description, the accident of personality has meant that Bush is asserting executive power through claiming sovereignty over convention.

I don't have a problem with that, as I don't see conventions as having the force of law, the force of practice, or the force of custom or even the force of tradition. I accept that convention is subject to the sovereign's whim and that a change in government may mean a new sovereign in a different part of government will claim - through personality - their sovereignty over a convention.

Consequently I don't get upset, shocked or surprised when conventions are broken as I don't see them as contiguous; they are purely momentary. It is impossible, IMO, to view convention any different to an actor in the marketplace asserting their economic sovereignty by buying a widescreen LCD TV instead of a plasma one. It is a liberty of the economic actor.

We have to look at convention, not as a restriction on the sovereign, but fully within the sovereign's liberty of action.

More Reading on Convention

• Convention
• Richard Pares
• George Bush
• Sovereignty
• Bill Bundling and Senate Convention
• Sovereign Whim and Convention