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Does Altered Carbon’s Resolution 653 Pass Constitutional Muster?

“Technology advances, but humans don’t. We’re smart monkeys, and what we want is always the same. Food, shelter, sex, and in all its forms, escape.”  Takeshi Kovacs.

In February, Netflix unveiled a new dystopian, Blade Runner-esque, sci-fi show—Altered Carbon. Set in 2384, the show follows hardboil tough-guy Takeshi Kovacs fighting his way through a murder mystery in a world where human minds can be digitally downloaded and stored in cortical “stacks.” A stack, which can be inserted into the spinal column of any human body (called “sleeves”), allows people with resources to effectively live forever by transferring from one sleeve to another. Stacks can also be “spun up” in virtual realms, where the person’s consciousness can interact with others.

So we can download our consciousness in 250 years from now, but advertising still consists of projecting enormous naked people.

Seeing the obvious appeal of this type of technology, it has been featured in a number of sci-fi movies (The Thirteenth Floor; Chappie) and TV shows (Black Mirror; Stargate Univerise; Star Trek: The Next Generation). What has not been a part of those depictions, however, are the legal consequences to a person’s consciousness existing outside of the traditional temporal and physical confines of the human body. See Obscure Legal Hobbies by Legal Amateurs. Normally, questions challenging the legal assumptions of personhood, copying one’s own mind, and destroying the body but not the mind, remain unanswered in lieu of more pressing matters like, you know, a plot.

Altered Carbon, however, partially delivers where other sci-fi shows have failed. A law being proposed in the series, “Resolution 653,” would allow the government to “spin up” a murder victim’s stack to testify against their killer. The problem? Some people believe that spinning up a person’s stack is heresy. In the show, Neo-Catholics (colloquially, “Neo-Cs”) specifically have religious coding put into their stacks because they believe that God gave humans one life only. So if Neo-Cs receive a second life, it results in an automatic trip to hell (or at least purgatory). Understandably, Neo-Cs are opposed to Resolution 653,on religious ground, with its provision forcing spin ups on murder victims.

Apparently the kind of people protesting still include guys with mountain men beards and crazy hats.

So how would the Constitution’s First Amendment protections support these Neo-Cs attack on Resolution 653? Although the Supreme Court has not directly ruled on the issue [of whether an impingement of fictional tech and religious rights are constitutional], it has provided some idea of how the constitutionality of the Resolution would be interpreted. Some state courts and legislatures, however, have addressed the issue in the context of autopsies, which seems to be a decent analogue. In short, my guess is that Resolution 653 would stand up to constitutional muster or could otherwise be protected by affirmative state legislative action.

SCOTUS and Religious Freedom

In Wisconsin v. Yoder, the Supreme Court held that a person’s right to freely exercise his or her religion can be intruded upon by the government only when “there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause.” 406 U.S. 205, 214 (1972). Although the government must also show “that no alternative forms of regulation would combat such abuses without infringing First Amendment rights,” Sherbert v. Verner, 374 U.S. 398, 407 (1963), the Supreme Court has also “consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes),’” Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990) (quoting United States v. Lee, 455 U.S. 252, 263 n. 3 (1982)).

“A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation . . . if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claims must be rooted in religious belief.” Yoder, 406 U.S. at 215. Thus, “subjective evaluation and rejection of the contemporary secular values accepted by the majority,” or “philosophical and personal [choices] rather than religious,” do “not rise to the demands of the Religion Clauses.” Id. at 216.

I too hope to get resleeved in Joel Kinnaman’s jacked body

Based on our current Supreme Court jurisprudence, the question of Resolution 653’s constitutionality would likely turn on whether (1) the Resolution is a law of general applicability untethered to religious conviction, see Smith, 494 U.S. at 882 (drug restrictions); (2) the religious coding is part of a sincere religious belief or an individual choice, see Yoder, 406 U.S. at 215 (Amish religious conviction); (3) “there is a state interest of sufficient magnitude to override the interest,” see id. at 214; and (4) there exist alternative forms of regulation to accomplish the same goal, see Sherbert, 374 U.S. at 407.

In our post-stack universe, I think that Resolution 653 would win out over religious liberty based on these factors. First, Resolution 653 arguably applies to all persons with stacks; however, it’s presented in Altered Carbon to override the religious coding used by religious groups. It is doubtful that the Resolution would be considered “neutral” or “generally applicable.” Second, Neo-Cs appear wholly uniform and sincere in their religious belief that spinning up a person’s stack condemns them to eternal unrest. These first two factors, therefore, seem to weigh heavily in the Neo-Cs’ favor.

The third and fourth requirements, however, seemingly weigh strongly in favor of the Resolution. The government’s interest in solving a person’s (or multiple people’s) murder is extremely high, especially considering the shenanigans afoot in Altered Carbon. See Rage in Heaven, 1 Altered Carbon (2018) (“spoiler alert“)And although governments have used alternative forms of solving murders for millennia, it’s hard to imagine that the police in 2384 are used to—or even capable of—solving murders without questioning the victim. Because the show did not illuminate alternatives that don’t require actually spinning up a stack to view its contents, my guess is that the Resolution’s proponents would argue none exists.

No funny comment, I just really like Poe and his Raven Hotel

Moreover, the potential for abuse of religious coding to hide crimes seems like it would tip the scales. Like the victim at issue in Altered Carbon, how would the government determine that the coding is even valid as to the person unless they spun them up? In short, because solving a person’s murder is within the government’s duties and society’s best interest, I think the Neo-Cs would be out of luck in their fight.

States to the rescue!

States, however, may be able to expand their citizens’ rights to encompass this type of religious protection. Currently, at least seven states (New York, New Jersey, California, Ohio, Maryland, and Rhode Island) have passed legislation that gives people the right to prevent autopsy of their remains in most circumstances by signing a certificate declaring that autopsy is contrary to their “religious belief.” See Cal. Gov. Code § 27491.43; MD Health-Gen Code § 5-310; NY Public Health Law §4209-a. Challenges to state constitutions or statutes that are interpreted to protect such a right have also failed. See Walsh v. Caidin, 232 Cal. App. 3d 159, 164 (Ct. App. 1991). See also Ross v. Bd. of Regents of the Univ. of N.M., No. CIV 07-01037 RB/ACT, 2008 WL 11359115, at *5 (D.N.M. Sept. 22, 2008); Kickapoo Traditional Tribe of Tex. v. Chacon, 46 F. Supp. 2d 644, 654 (W.D. Tex. 1999). So although the Constitution may not afford such a right, states could codify a religious exception to having one’s stack spun up.

Conclusion

Assuming the Supreme Court’s constitutional interpretation of the First Amendment remains the same (which is an enormous assumption considering when Altered Carbon takes place), I think Resolution 653 would pass muster. Although Neo-Cs have a deep and real religious conviction, they would likely not be able to challenge being spun up in the afterlife without petitioning their state to do so. Now whether Congress could pass an anti-Resolution 653 statute that protects a right to be undisturbed presents a host of issues related to Congress’s enumerated and unenumerated powers that I won’t get into here. Let’s just be thankful that transferring and storing memories is not a problem we will ever have to deal with ever.

No, but for real though, where do I preorder one of these for when my knees give out?

Random thoughts:

  • After seeing the government-issued sleeves given to murder victims, I feel like I would be really ticked off if I had to be in some random, much older person’s body … er, sleeve.
  • Because a “true death” can only happen when a stack is destroyed, I assume SCOTUS would have to recognize a sleeve as “property” for constitutional purposes. Henrietta Lacks’ contribution to society could finally be recognized and compensated.
  • If stacks can be spun up in a virtual world untethered to their sleeve counterparts, why would we even bother getting out of bed? I would definitely not waste time at the DMV.
  • Like The Expanse (which I write about here), I’m a big fan of Altered Carbon if only for its use of Blade Runner visuals and tech.
  • All hail Joel Kinnaman’s updated version of Detective Rick Deckard.

A Solo Train Robbing Adventure

Solo A Star Wars Story has a train robbery on the planet Vandor to steal Coaxium from the Empire as a major plot of the film.  The crime of train robbing had its heyday in a time long ago in U.S. states and territories. Unexpectedly, the punishments for train robbing in the United States and the Empire would be extremely similar, expect Beckett’s Bandits would at least get a trial in the US.

The Crime of Train Robbing 

Laws are not enacted proactively. The “train robbing” statutes of the late 19th Century were born out of specific events in the “Old West,” such as the Union Pacific Big Springs Robbery of 1877 or the crimes of Jesse James.  The state of Missouri declared train robbing as a felony punishable by death or imprisonment in 1895. The law stated:

Any person who shall place upon any railroad track any obstruction or explosive substance, or shall remove, displace or injure any rail, tie, switch, frog, bridge or trestle, with the design of robbing any person, passenger, employee, agent or company on any railway train, engine, tender, car, or coach, on any railway in this state, or who shall in any way stop, detain, or arrest the progress of any such train, car, engine, tender or coach with the intent to commit robbery thereon, or having in any way entered any car, coach, tender, engine, express car, mail car, or other apartment of any such train, shall there rob any person or persons, employee, passenger or agent, or any express company or mail pouch or car, of any money or valuable thing, whatsoever, either the property of such person, agent, passenger or employee, or the property of another in his care or custody, shall be guilty of a felony, and on conviction shall be punished by death, or confinement in the penitentiary for a term of not less than ten years.

State v. Kennedy, 154 Mo. 268, 281-82, (1900), citing Laws 1895, p. 160

The Defendant, ironically named John F. Kennedy, and his co-conspirators forcibly entered a train car, threatened a train employee to leave the mail car, and cut the train cars free of the engine. The robbers moved the train a quarter of a mile and blew up a safe in front of the employee to steal $1,000 (approximately $29888.58 in 2017 adjusted for inflation). Kennedy, at *283.

The Defendant challenged the train robbing charges, claiming the element that the robbery was committed “in the presence, and against the will and by violence, or putting the agent in fear of immediate injury to his person” was not met, because the train employees were not threatened with fear. Id. The Court rejected this argument, because it is unnecessary to prove actual fear when the crime is done violently and against someone’s will, the law will presume fear. Kennedy, at *284. As the crime was a series of events that ended with explosives used on the safe, all the elements of the crime were met.

Train Robbery Was Punishable By Death

The Territory of New Mexico had a similar train robbing law to Missouri that stated:

If any person or persons shall willfully and maliciously make any assault upon any railroad train, railroad cars, or railroad locomotive within this Territory, for the purpose and with the intent to commit murder, robbery, or any other felony upon or against any passenger on said train or cars, or upon or against any engineer, conductor, fireman, brakeman, or any officer or employee connected with said locomotive, train or cars, or upon or against any express messenger, or mail agent on said train, or in any of the cars thereof, on conviction thereof shall be deemed guilty of a felony and shall suffer the punishment of death.

Terr. of N.M. v. Ketchum, 1901-NMSC-006, ¶ 1, 10 N.M. 718, 718, citing 1151 of the Compiled Laws of 1897.

The Defendant in New Mexico challenged the death penalty for train robbing as a violation against the prohibition of cruel and unusual punishment. The Court rejected the challenge and upheld the death sentence with the following logic:

Trains are robbed by armed bands of desperate men, determined upon the accomplishment of their purpose, and nothing will prevent the consummation of their design, not even the necessity to take human life. They commence their operations by over-powering the engineer and fireman. They run the train to some suitable locality. They prevent the interference of any person on the train by intimidation or by the use of deadly weapons and go so far as to take human life in so preventing that interference. They prevent any person from leaving the train for the purpose of placing danger signals upon the track to prevent collisions with other trains, thus willfully and deliberately endangering the life of every passenger on board. If the express messenger or train crew resist their attack upon the cars, they promptly kill them. In this and many other ways they display their utter disregard of human life and property, and show that they are outlaws of the most desperate and dangerous character.

Terr. of N.M. v. Ketchum, ¶ 14.

Judge Frank A. Parker clearly saw the evils of train robbing.

Got to Be Better Ways to Make Money 

Tobias Beckett, Val, Rio Durant, Han Solo, and Chewbacca, all participated in the conspiracy to steal Coaxium from the Imperial train on Vandor. Applying the law of Missouri or the Territory of New Mexico, virtually every scenario contemplated in both codea was violated. Val set explosives on the tracks on a bridge for the train, which would violate the elements of causing an injury to “any rail, tie, switch, frog, bridge or trestle.” The purpose of destroying the railway bridge was to steal one of the train cars by airlifting it off the tracks after cutting it away from the other train cars. These acts were in furtherance of stealing the Coaxium for the Crimson Dawn crime lord Dryden Vos. Furthermore, Imperial Range Troopers were engaged during the train robbery with multiple fatalities. While no one should root for the Empire, the train robbery was not part of a military operation by the Rebellion, but a criminal conspiracy for profit.

All of the actions by Beckett’s crew were the reasons anti-train robbing legislation was passed in the 19th Century. While the train appeared operated automatically with just Ranger Troopers to protect the cargo, there was a shootout with deaths and destruction of the bridge and train. While there is a strong argument that a modern court would not impose the death sentence on a crime without fatalities, that argument is lost once someone dies. 

A defense attorney would have a difficult time defending Beckett’s gang, because arguing it was necessary to rob a train in order to avoid crime lords sending bounty hunters to kill you, begs the question that the underlying action was already a crime. While there could be a interesting question on whether Han had a defense to join Beckett to escape the Empire’s war crimes on Mimban, the issue is legally muddy at best. 

The Law of Star Wars at Escape Velocity

Tomorrow, I get to present on the Law of Star Wars at Escape Velocity, a high-tech and science fiction convention in Washington, D.C. My co-presenters are Prof. Mark Lemley, attorney Nari Ely, and Charles Hildebrandt (who works for the Museum of Science Fiction – my new dream job!). I obviously love talking about the legal issues in the Star Wars universe, but I’m really looking forward to tomorrow’s panel because of how much fun these geeks had last year.

At Escape Velocity 2017, my three co-presenters (and another attorney) covered the legal issues in Star Trek. The panel ended with Klingons arrested the lawyers! Of course, the Klingons had to read them their rights, so attendees were treated to the Miranda Rights as given in the Klingon language. Only problem – Klingons don’t have lawyers so there was no Klingon word for lawyer. Fortunately, Marc Okrand, who invented the Klingon language, was also a guest at Escape Velocity. So he created a Klingon word for lawyer: chut qeSwI’ (literal translation: “law adviser”)!

We probably won’t be creating any new words this year but I can assure you that we will still have a great time. So come check us out at Escape Velocity tomorrow at two. See you soon!

Enforceability of Life Debts

Chewbacca: the Wookiee; the Myth; the Legend. He is the ultimate wingman. Loyal, wise, and damn huggable. Chewbacca was with Han Solo because Chewie owed Han a “life debt.” A life debt was a social custom that stated that if someone had saved a person’s life, then that person owed the one who had saved him or her something in return. Wookieepedia, Life Debt.

Courts would have an extremely difficult time enforcing a “life debt” as a contractual obligation. Contracts require terms with “reasonable certainty.” Restat 2d of Contracts, § 33(1) (2nd 1981). Contracts that had indefiniteness were considered fatal defects in earlier times. See, John Edward Murray, Jr, Murray on Contracts, Third Edition, Copyright 1990, § 38, page 83. Case law includes examples where someone promised to pay “a fair share” of their profits or where a lumberman agreed to provide logs in quantities deemed “reasonable and economical.” Murray, citing Varney v Ditmars, 217 N.Y. 223 (1916) and Smith v Chickamauga Cedar Co., 263 Ala. 245 (1955).

Modern courts have stated the “law leans against the destruction of contracts for uncertainty” and prefer finding agreements are “sufficiently definite.” Murray, citing In re Sing Chong Co., 1 Haw. App. 236, 239 (1980). However, an agreement to “care for a person” was found to fail for indefiniteness. Murray, citing Almeida v. Almeida, 4 Haw. App. 513 (1983).

The test for whether a contract survives indefiniteness is whether the “terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.”Restat 2d of Contracts, § 33(2) (2nd 1981).

A life debt potentially can be for an indefinite amount of time, possibly even decades, in order for the debt to be “repaid.” Moreover, Han and Chewbacca going on a series of adventures together (arguably in a partnership with fiduciary duties to each other), lack reasonably certain terms for the scope and duration of the life debt. Chewbacca’s life debt to Han Solo likely would fail for indefiniteness as a contract to “care for a person.” However, a sound legal strategy in cases involving Chewbacca is to let the Wookiee win.

Defending War Machine for Not Following the Secretary of State’s Arrest Order

[Fictional] Secretary of State Thaddeus “Thunderbolt” Ross ordered Colonel James “Rhodey” Rhodes to arrest Captain America, Falcon, Black Widow, and Scarlet Witch for violations of the Sokovia Accords. Colonel Rhodes hung up on the Secretary of State and said “that’s a court martial” for violating the order. How could a defense attorney defend War Machine for not following orders?

Secretary of State Ross is Not in the Military Chain of Command

Colonel Rhodes’ first argument is that Secretary of State cannot give a lawful order to an Air Force Colonel based on the military chain of command. A lawful order would need to originate from the President, Secretary of Defense, the Joint Chiefs of Staff, Secretary of the Air Force, Air Force Chief of Staff, U.S. Northern Command, or whoever is Colonel Rhodes’ commanding officer or superior in rank. The Secretary of State is NOT in the military chain of command, thus cannot give an order to Rhodes.

Secretary of State Ross spent his professional life in the Army barking orders amounting to unlawful surveillance of U.S. Citizens in his search for Bruce Banner. While Ross is used to giving orders people follow from his days as an Army General, he was no longer on active duty while serving as the Secretary of State. Moreover, there is no one he could “order” in the military chain of command to have Captain America’s Avengers arrested.

It is possible the Avengers reported directly to the Secretary of State pursuant to legislation enacting the Sokovia Accords as law. If that is the case, Colonel Rhodes still has other valid legal defenses.

The Air Force Cannot Conduct Law Enforcement

Secretary Ross’s order to arrest Captain America’s Avengers would violate the Posse Comitatus Act. The Act expressly prohibits the Air Force from conducting law enforcement:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

18 USCS § 1385.

As an Air Force officer, Colonel Rhodes is barred by law from conducting law enforcement activities. There is no better example of law enforcement activities than performing arrests. As such, ordering Rhodes to perform an arrest would violate the law, thus be an “illegal order,” which Rhodes would not have to follow.

Steve Rogers and Sam Wilson were the only team members with military service. Sam Wilson was no longer on active duty. There is no evidence that Steve Rogers was AWOL from active duty, providing Colonel Rhodes legal authority to have Captain America arrested. Rogers was frozen in ice before the end of World War II for over 70 years. His service period would have ended sometime after the war, however, there are good legal questions on how much back pay Captain America is owed by the U.S. Government. Regardless, it would be a stretch to say Colonel Rhodes was a military superior of Steve Rogers and legally required to arrest the greatest soldier of all time.

The Order to Arrest Violated the Fourth Amendment

General Ross only ordered Colonel Rhodes to “arrest them.” There were no specific charges against the Avengers, besides Ross being upset.

The Fourth Amendment to the United States Constitution requires that arrest warrants will not be issued without probable cause supported by an affirmation that describes the person to be seized (arrested). USCS Const. Amend. 4. The Federal Rules of Criminal Procedure further state that criminal complaint and supporting affidavits must “establish probable cause to believe that an offense has been committed and that the defendant committed it.” USCS Fed Rules Crim Proc R 4.

Secretary Ross ignored the probable cause requirements for an arrest warrant and ordered the arrest of Captain America’s Avengers. As the charges against the Avengers were not stated and without an arrest warrant supported by probable cause, Rhodes was correct in not following the order.

The Arrest Order Was an Illegal Order Because the Sokovia Accords Are Unconstitutional

The Hail Mary argument for War Machine is that the Sokovia Accords are Unconstitutional, thus arresting anyone for violating them would be an unlawful act. Colonel Rhodes only has a duty to follow LEGAL orders, because an order “must command a thing not in itself unlawful or prohibited by law.” US v Kinder, 14 C.M.R. 742, 772-773 (A.F.C.M.R. 1954).

U.S. citizens since the adoption of the Sokovia Accords were held without trial on a submarine prison known as the Raft. All were denied the right to counsel. Moreover, the entire concept of a “prison ship” has been rejected in the United States because of events during the Revolutionary War. Colonel Rhodes could argue with a straight face that arresting people in violation of the 4th, 5th, 6th, and 8th Amendments would amount to an illegal order, thus he was not legally bound to follow it.

Just Say No to Illegal Orders

Colonel James Rhodes was correct in not following Secretary of State’s order, because it was not in the military chain of command, violated the 4th Amendment on its face, and was based on a treaty or enabling laws that violated the United States Constitution. Colonel Rhodes took an oath to upload and defend the Constitution, not desecrate it.

The Rules of a Royal Romance

I became a tad obsessed with the British crown at an early age. The first biography I read as a kid was about Queen Elizabeth I (her dad makes Meghan Markle’s dad look positively fantastic) and I, like much of the world in the ’80s, fell in love with Princess Di. I had my hair cut like hers, I collected magazines about her, and I still remember where I was when I heard the news about her tragic Paris car crash.

My obsession has cooled as I’ve grown (now I’m just obsessed with The Crown) and so I’ve been following the Meghan Markle/Prince Harry gossip mainly as a distraction from the real-life horrors we face every day. But one particular aspect of the prospective marriage fascinates me, both as a lawyer and as a member of a former British colony: the idea of an American marrying into a family that has so many rules. And not just any rules–rules that they all take very seriously.

On the one hand, the idea of this pecking order and being born into a particular position/status rankles me to no end as an American (and makes me glad we fought the Revolutionary War–although lately the idea of the Queen taking us back is tempting). The sexism in many of the rules also drives me nuts. On the other hand, the absurdist in me adores the adherence to such completely pointless, totally inconsequential rules.

So as we count down Meghan’s final hours and minutes of freedom before being swallowed up by The Firm, let’s look at some of the rules that will impact her and her family for generations to come.

Your Majesty, May I Get Married?

First things first, Meghan and Harry wouldn’t have been able to get married if the Queen hadn’t okayed it. And obtaining her permission (not blessing) was not a foregone conclusion. Just ask the Queen’s sister, Princess Margaret (RIP). She wanted to marry Peter Townsend, a divorced man, and her sister (and later, the government) forbade it because of Peter’s divorce.

Ironically, the Queen wouldn’t even be the monarch today if her uncle had been able to stay on the throne. But he fell in love with a divorced American and had to choose between the throne and her. He chose love. (Cynical note: There are also arguments that Wallis Simpson’s connections to the Nazis had an impact on the choice King Edward VIII was given. Pessimistic note: Can’t believe we’re still dealing with Nazis nearly a century later.) Of course, the Church of England, of which the Queen is the formal head, now accepts divorce (better than the beheadings that its founder, King Henry VIII, tended to rely on).

So that obstacle has been removed, but the Queen still had to give Harry formal permission to wed because he is currently sixth in line for the throne (and was fifth in line for the throne, after Princess Charlotte, when he and Meghan first became engaged). That’s because there is literally a law that states that the first six people in the line of succession to the throne must have the monarch’s permission to wed. Insane, right?! So Prince Charles, Prince William, Kate and William’s three children, and Prince Harry all need the Queen’s permission to wed. The recent birth of Prince Louis, however, means that Prince Andrew (Prince Charles’ younger brother) is now seventh in line to the throne and there’s a decent chance he and Fergie may end up getting remarried now that they no longer need the Queen’s permission.

Call Me By WHOSE Name?

So this next rule is one of the really sexist rules. The way the rules work, only “blood” princesses (has anyone ever discussed adoption?) get to be called Princess X (e.g., Princess Charlotte, Princess Anne, Princess Eugenie). If you marry a prince, you actually take on their name and title. So technically, Kate Middleton isn’t Princess Catherine, she’s Princess William of Wales. Likewise, Meghan will technically be known as Princess Harry of Wales, although the odds are very high that the Queen will bestow upon Harry and Meghan the titles Duke and Duchess of something (possibly Sussex), so she’ll also have that name.

I could go on for a long time because the rules regarding names and titles get very long and elaborate, but I’d probably still get it wrong because the rules are very technical. Suffice it to say, most royals, like our greatest celebrities (Madonna, Beyonce, Cher, Rihanna) don’t need last names but do like really long titles. Prince Phillip, for example, was born with the name, Philip, Prince of Greece, while his current full title is: His Royal Highness Prince Philip, Duke of Edinburgh, Earl of Merioneth and Baron Greenwich, Knight of the Garter, Knight of the Thistle, Order of Merit, Knight Grand Cross of the Order of the British Empire, Companion of the Order of Australia, Companion of The Queen’s Service Order, Privy Counsellor.

To Curtsy or Not To Curtsy

This rule is sexist and petty, and it’s also exhausting to think of how hard this would be to remember at every family outing: it’s the rule for which royals have to curtsy or bow (really, that’s just a head bob) to other royals. And there’s an official order on this, which the Queen updated before Kate married William. It’s called the Order of Precedence and the Queen also updated it when Charles married Camilla, so she may update it again in light of Meghan joining the family.

For purposes of establishing Kate’s rank in the hierarchy, the Order provides that she has to curtsy to the “blood princesses” (like Princess Anne and Princess Eugenie) if she’s by herself. If she’s with William, however, she “adopts” his rank and the blood princesses have to curtsy to her. (Family note: Ugh, I can’t imagine ever having to curtsy to any of my cousins or their spouses, no matter how much I love them!). This Order also impacts the order of arrival at events (just like celebrities at the Oscars!). Presumably, the Order will be adjusted so that Meghan’s situation is similar to Kate’s, although she’ll probably always have to curtsy to Kate (again, uck.).

This rule makes me think of the story Michael J. Fox tells about sitting next to Princess Diana (technically Diana, Princess of Wales) for a screening of “Back to the Future.” Long story short, he had been told he couldn’t stand up unless she did first. Just as the movie started he realized he had to pee but didn’t move the entire movie because he was afraid of breaking that rule!

What About the Kids?

Finally, assuming Harry and Meghan have kids, what titles and ranks will they have? That’s a tougher question. First, the British monarchy still has the sexist rule that titles are inherited through sons, which is part of the reason why some of Queen Elizabeth’s grandchildren are princes and princesses (e.g., Prince Charles’ and Prince Andrews’ children) but Princess Anne’s children are not. The Queen offered to bestow titles upon Anne’s children but she declined. Likewise, the Queen’s youngest son, Prince Edward, decided he did not want his children to have the royal titles to which they were entitled. Harry and Meghan could choose to follow either Andrew’s lead or Edward’s lead with their kids.

On a related note, one slight improvement has been made to the rules of succession in Great Britain. Prior to the birth of Prince George, Parliament passed a Succession to the Crown Act that provided that the female offspring of an heir to the crown would not be passed over for a younger, male sibling. So that means Princess Charlotte does not lose her place in line for the throne to her younger brother, Prince Louis. The Act also softens, but does not totally eliminate, the bias against Roman Catholics. King Henry VIII’s feud with the Catholic Church isn’t dead yet!

So all of this is just a fraction of what Meghan will have to deal with after this weekend’s wedding. She seems like a smart, accomplished woman who knows what she’s doing and it looks like she intends to use her newfound platform for good, which is great. I wish her the best of luck and hope everything goes well for her. And, as a mother and a daughter, I’m sad for Prince Harry that his mother won’t be there this weekend. I’m sad as a lifelong fan of Princess Diana too. Just to show how obsessed I was with Princess Diana, here’s a picture of the magazines that I still can’t let go off even after all of these years. Some of them have even traveled with me from the East Coast to Texas to Wisconsin. She’s the only royal I really care about.

 

The Case for Belter Independence in The Expanse

“Our air, our water! Ereluf beltalowda! Owkwa beltalowda! You can’t silence us! Belters won’t stand for this forever!”

Fans of SyFy’s The Expanse were dealt a blow this week when the network announced it would be cancelling the highly rated sci-fi show. Fans were also quick to respond, however, petitioning for Amazon to pick up the show and even going so far as flying a banner over the studio’s headquarters. The space opera, which has been called a spiritual successor to the revered Battlestar Galactica, is one of the best new space-based sci-fi shows in recent memory. Check out this killer fan-made trailer to get a taste of the show.

The plot goes as follows: After the exploration and settlement of Mars, Earth unites as one government under the United Nations (“UN”). After a few generations of unrest and resentment, the territorial government of Mars exchanges its newly-invented “Epstein Drive” with Earth to guarantee their independence. The Drive allows much faster, more efficient space travel to the outer solar system, where both Earth and Mars tenuously share the right and responsibility of “mining” natural resources in an asteroid belt (“the Belt”) between Mars and Jupiter. Still, the militaristic government of Mars is not happy with its portion of the resources (namely, water), and a type of cold war exists between the two planets.

I imagine Mars is like Arizona, with fewer overly-tan and shirtless guys walking around

Millions of miles from these planets, it only takes a few generations before those born in the Belt start to grumble. Belters have their own language (lang Belta, or “Belter Creole”), are taller and thinner due to the low gravity, and generally poorer in health due to atmospheric and environmental issues. Most Belters have never been to a civilized planet, and they have no residual love for the place their great-great-great grandparents were born. Resenting the second-class citizenship afforded them by the “Earthers and Dusters,” some Belters form the “Outer Planet Alliance” to fight for autonomy and more rights. Like most freedom-seeking organizations that employ violence, Earth and Mars are quick to label the OPA a terrorist organization and the planets quickly suppress any independence talk by the Belt.

Rich in natural resources and far from the inner planets, it’s easy to see why the Belters feel like they deserve more. Because Earth’s resources are gone and Mars has very little natural resources to speak of, it’s even easier to understand why they would not give up control of the Belt without a fight. So how can the Belt establish its independence? Fortunately, Earth has seen its share of independence movements and the path to independent nationhood (Is this planethood? non-planetary-grouphood?) is well established—if not also exceedingly difficult.

Establishing Sovereign Independence

While no universal agreement on how to establish an independent nation or non-planetary asteroid belt exists, history provides us with a solid outline. First, the group must meet certain practical requirements involving territory, population, and government. Second, the group must declare its independence. Third, but not necessarily fatal, other governments must recognize the group’s independence and sovereignty. Based on what we have seen of the Belt in The Expanse, I think the Belters stand a decent chance in the long run. Earth and Mars can’t destroy the Belt, they need it.

“No need to worry about all of Earth and Mars’ interstellar warheads launching in our direction, I’m sure they’re not coming for us.”

A. Basic Eligibility Requirements

In the Montevideo Convention of 1933, 19 nations in North and South America codified the declarative theory of statehood as accepted as part of customary international law. The Convention, which set out the definition, rights, and duties of statehood, acknowledged that “[t]he state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.” Montevideo Convention on the Rights and Duties of States, Dec. 26, 1933, 49 Stat 3097, T.S. No. 881, 165 L.N.T.S. 19; see also Restatement (Third) of Foreign Relations Law § 201 (1987). To meet the third and fourth requirement, it’s likely the entity also “must be capable of acting independently of foreign governments.” IV Encyclopedia of Public International Law 603 (Rudolf Bernhardt ed., 1st ed. 2000).

The Belters probably can meet all of these requirements, but their reliance on Earth and Mars could mean that it doesn’t matter. The Belt has somewhere between 50 and 100 million inhabitants, spread across five major colonies: Ceres, Vesta, Eros, Anderson Station, and Tycho Station. These colonies are located amid the general orbits of Mars and Jupiter, and could be “geographically” limited to the space between the current outer posts.

Furthermore, although Earth and Mars considered the OPA to be a terrorist organization, Belters view the group as a de-centralized sociopolitical movement capable of Belt governance. Assuming OPA leaders like Fred Johnson could unite the various factions, the Belt should be able to establish an actual working government. Whether the Belt is “capable of acting independently of foreign governments,” however, depends solely on its reliance on Earth and Mars for air and other goods that are naturally found in the Belt. My guess is they could.

So if I’m getting this right, I just yell that I’m an independent state and everyone leaves me alone, right?

B. Declaration of Belt Independence

Throughout history, groups have successfully declared themselves independent of their colonial masters. For example, the Cabinet of Rhodesia adopted the Unilateral Declaration of Independence, declaring itself independent of Great Britain in November of 1965. The most famous example is arguably the United States’ Declaration of Independence (“DOI”) in 1776, which declared that “these united Colonies are, and of Right ought to be Free and Independent States,” and promptly started a war. Although the DOI “may not have the force of organic law,” Cotting v. Godard, 183 U.S. 79, 107 (1901); see also Alexander Tsesis, Self-Government and the Declaration of Independence, 97 Cornell L. Rev. 693, 696 (2012), it served its purpose in declaring the United States an independent nation.

The UN’s International Court of Justice also “considers that general international law contains no applicable prohibition of declarations of independence” and unilateral declarations of that type are not illegal. See Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 I.C.J. 403 at ¶ 84 (July 22). Although the Belters have not made such a declaration, it is easy enough to imagine one:

We declare the Main Asteroid Belt to be a democratic, secular, and multi-ethnic, non-planetary republic, guided by the principles of non-discrimination and equal protection under the law. We shall protect and promote the rights of all communities in the Belt and create the conditions necessary for their effective participation in political and decision-making processes. Because the history of Earth and Mars is one of subjugation, exploitation, and neglect, we hereby break all allegiances with those planets. Furthermore, we commit to protecting the rights, resources, and lives of all Belters, as is our right.

You’re welcome Fred.

Ok, so can we all agree that belts are a necessary item for Belters to wear in the Belt? No? Well great, there goes my idea for a pop up on Ceres.

C. Recognition

“Recognition is a ‘formal acknowledgement’ that a particular ‘entity possesses the qualifications for statehood’ or ‘that a particular regime is the effective government of a state.’” Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2084 (2015) (quoting § 203, cmt. a). This last stage of establishing definitive statehood presents the most difficult for those in the Belt. Unlike Earth, which previously had many different nations that could recognize a new country, the Belt can only seek recognition from Earth and Mars. No other governments even exist within the solar system.

Fortunately, as the Restatement explains: “An entity that satisfies the requirements of § 201 is a state whether or not its statehood is formally recognized by other states.” § 202, cmt. b. And under United States’ law, recognition mostly seems to be “a precondition of regular diplomatic relations,” see Zivotofsky, 135 S. Ct. at 2084, not a precondition for independence. Because the Belt is unlikely to be recognized by Earth or Mars—absent a treaty establishing trade with one but not the other—it may be difficult to gain an accepted independence outside of the Belt’s confines.

As a former Marine myself, I approve of the Martian Marine Corps’ jumpsuit-only uniform. So comfortable.

Conclusion

Although the Belt may meet international law’s qualifications for becoming an independent and sovereign entity, which it could legally declare itself to be, it’s hard to imagine Earth or Mars giving up their space-age breadbasket and recognizing the Belt as such. Without negotiating or fighting for that recognition, the Belt could still act independently in its own territories; however, it would not have the benefit of trade or diplomacy with its planetary-based neighbors. Fortuitously, the Belt may have been dealt a strong hand to play (Warning: Spoiler), but we likely won’t get to find out unless Amazon picks up the series. No, seriously, Amazon, you should pick up the series. Please?

Random thoughts:

  • Because air and water are more precious than gold in the Belt, I’m sure scores of air and water lawyers argue about all the attendant regulations and statutes. What are water rights in space like?
  • The Expanse does a great job anticipating changes in culture due to the effects of space. Like the inclusion of hand symbols in lang Belta, which developed when Belters were doing space walks and needed to communicate quickly.
  • Would death by being sucked out into space be considered cruel and unusual? My guess is that the practice, like walking the plank, is pretty commonplace in the more remote Belt outposts. Probably not.
  • Apparently legal battles are already being planned over the colonization of Mars, so maybe we can get all of these hashed out in the next hundred or so years. I vote for Belter rights!

 

 

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