Hyper-partisanship and constitutionalism

13th December 2020

Consider three political situations.

The first is where constitutional issues play no real part in day-to-day politics.

Here issues about the economy, law and order, health, social welfare, the environment, defence and so on dominate both party politics and media coverage.

The second is where a discrete constitutional issue becomes part of the political debate.

For example in the United Kingdom, this could be devolution, or House of Lords reform, or proportional representation.

That issue will tend to be addressed though normal party politics, and such issues do come and go from time to time.

And there is a third category, where constitutional issues are themselves gamed for party issues.

This is what is happening in the United States currently, and to a lesser extent in the United Kingdom.

In the United States, for example, there is the extraordinary attempt by Republicans in Congress and many states to overturn the result of the 2020 presidential election.

In the United Kingdom, for example, the government is politically exploiting attacks on the courts, on lawyers and on the very ability of judiciary to hold the executive to account.

I have many times said that it is a bad thing for constitutional law to be exciting.

If contesting the rules of the game themselves becomes the focus then the game itself is subverted.

What can be fairly called ‘hyper-partisanship’ – which goes far beyond the normal knockabout of party politics – is a dangerous thing for constitutions and constitutionalism.

In any modern political system an immense amount depends on legitimacy and being governed by consent.

A jackboot-totalitarian state can only go so far by sheer force of coercion and intimidation – and, in any case, many totalitarian states use propaganda, symbolism and vilification of the ‘other’ to manufacture legitimacy and consent.

Remove that shared sense of legitimacy of institutions by having a permanent revolution and constitutional culture war and then the state will find it more difficult to govern.

Why should anyone accept the decisions of a court, or of a legislature, or even of an electorate, when the legitimacy of each is a partisan issue?

There is certainly a need for constitutional reforms from time to time, but this should be on the basis of making various institutions and practices more legitimate not less.

Constitutional law and constitutional issues are far too exciting, and this is a bad thing.


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6 thoughts on “Hyper-partisanship and constitutionalism”

  1. David

    “Constitutional law and constitutional issues are far too exciting.”

    Perhaps one could argue the usual invisibility of this subject matter in the consciousness of most of the public, is what makes it so easy to be manipulated and used against a democracy by those with malignant ambitions?

    I wrote about this yesterday with regards to the Leave Campaigns exploitation of the understanding of ‘Sovereignty’.

    As far as I’m aware, there is little or no education on the evolution of the UK’s Constitution/basic principles of Law/Human Rights in schools, which is a little odd given each one of us is reliant on them not to be abused by those who would choose to use them against us?

    The more the general public becomes aware, the better? Then of course, the challenge is to make sure the public is not wittingly or unwittingly misinformed.

    Knowledge of these things are perceived to be exclusively in the hands of the alleged ‘elite’, which must surely be detrimental to their ‘legitimacy’ in the eyes of the majority?

    It appears we have a constitutional right to an education, but no institutional right to be educated about the constitution?


    1. If there was a “Like” button on here, Philip, I’d be clicking it furiously now.

      (Note to DAG – don’t add a “Like” button – heaven forfend that you ever lower yourself to that kind of lazy neediness..!)

  2. A question lurking in the background is whether technological changes – particularly in internet and media technologies – are in themselves a key reason why the rules of the game need reviewing and possibly rewriting.

    Sampling the electorate’s views once every 4 or 5 years is very limited in terms of modern technology’s capabilities. And that sampling is usually on the basis of ‘vote for one individual, who may be allied to a political party, to consider and decide on every issue’. This facilitates greater partisanship. There is the potential for more granularity (and frequency) of representation.

    Some of the Trump campaign’s lawsuits boil down essentially to transparency and validation about who voted; there are potential technological opportunities in this area.

    Issues about a region’s ability to govern itself and whether and how it needs to be part of a larger nation state or international grouping are also significantly impacted by technological capabilities.

    Perhaps the major issue is technology’s ability to deliver such large volumes of communications and information. Reinforcement for views can now come from a multiplicity of sources via a variety of channels. It is this which is apparently driving people to greater extremes of thinking and partisanship. Technological solutions to this technological problem are less obvious.

  3. David

    Thanks for your commentary, which always seems to be relevant and very well explained.

    I was an advocate for a written constitution, but I have been dissuaded from that by your recent opinion pieces. But my fear and that of many is when political leaders, particularly those in power, choose not to respect our constitutional conventions and take advantage by undermining them. As our constitution’s checks and balances are fragile, a written constitution appears to offer a solution, but it seems unlikely that any Party in power would willingly surrender some of that power in the interests of democracy.

    The greatest problem seems to be that the vast majority of the electorate either don’t understand why it matters or, they don’t care. That is the truly frightening aspect. How else does one explain the elevation of a known liar to the role of PM, and the appointment of a Cabinet who put Party loyalty and career far above the interests of the nation.

    And coupled with an irrational commitment to the first past the post voting system, and media which largely favours op ed over objective reporting, it is hard to seethe mother of parliaments restoring proper order to our democracy any time soon.

    Is it any wonder that so many people feel completely disengaged from politics?

    In this climate, please continue publishing your views and trying to spread the understanding of these vitally important issues as widely as possible.

    Thank you.

    1. The United States has suffered from similar political cultural problems – and it has an accessible codified constitution, the provisions of which are widely known

  4. “A jackboot-totalitarian state can only go so far by sheer force of coercion and intimidation …”

    Quite, although the manner in which one may coerce and intimidate may, at times, be quite sophisticated.

    Adolf Hitler after he became Chancellor of Germany, but before the outbreak of World War Two wrote as a private citizen, of course, to a popular German daily newspaper.

    Amazingly, his letter was printed. Therein he expressed his humble opinion that a judge in a particular case had handed down too lenient a sentence.

    I am sure that his personal view, in no way, influenced future sentencing by German judges.

    As an aside, this ordinary man surprisingly never paid any tax after becoming Chancellor. Some kind soul visited the Berlin Tax Office and had a chat with the management about how regrettable it would be, if Adolf was pursued for outstanding back taxes.

    I imagine they took the hint about not levying taxes on his income in the future, too.

    Hitler, like Putin, today appears to have subsisted on gifts from well wishers. His Mein Kampf royalties were paid into a Swiss bank account.

    May be he was not confident his Thousand Year Reich would last even his lifetime?

    A bit like a Brexiteer hedging their bets, by moving business interests abroad, even into the EU?

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