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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