12th February 2021
Yesterday this blog averred that the twin perils of constitutionalism – at least from an English law perspective – were fogeyism and utopianism.
Fogeyism is the view that previous constitutional arrangements (either real or imagined) are inherently meritorious and are prescriptive and binding – and that any departure from these previous arrangements is unsound and should be resisted.
Constitutionalism in a tweed jacket.
Utopianism is the view that the only constitutional reforms worth contemplating are to achieve certain ideals: A written constitution! Abolition of the monarchy! Abolition of the House of Lords!
Constitutionalism waving a placard.
Both fogeyism and utopianism are normative approaches to constitutionalism – preoccupied with what they aver the constitution should be, rather than what it actually is.
But there is a far greater enemy for constitutionalism than either fogeysm or utopianism – both of which are at least often based on a sincere interest in constitutional affairs.
This greater enemy is hyper-partisanship.
For hyper-partisanship is the dark matter of constitutionalism.
It is anti-constitutionalism.
*
Constitutionalism is the view that politics and government should normally take place within an agreed framework of principles and practices that regulate what happens when there are political tensions.
Of course, there will be – and should be – tensions within any polity – for that is the very stuff of politics.
Without tensions you do not even have politics.
The constitution of the polity then provides how these tensions are reconciled before they harden into contradictions: who gets their way, and on what basis.
*
Hyper-partisanship, in turn, is the view that the constitution is – and should be understood to be – an entirely partisan device.
This goes beyond the normal partisanship of the party battle and the clash of politicians.
Hyper-partisanship weaponises the very constitution as part of those conflicts.
In particular, there will be no protection in the constitution – no check or balance – that cannot be dismissed as being politically motivated.
*
The senate trial of the second impeachment of Donald Trump is an illustration of such hyper-partisanship.
There are republican senators who will vote to acquit Trump regardless of the merits of the case.
Similarly, no doubt, there will be democrat senators who will vote to convict Trump regardless of the merits of the case.
And this is notwithstanding that the constitutional purpose of impeachment is to address the issue of how to deal with certain behaviours outside of any election cycle.
If an otherwise impeachable offence could just be dealt with by the choices of electors then there would be no point having the power of impeachment.
Impeachments should not be partisan matters.
*
Here it is perhaps useful to employ what can be called the ‘Jeremy Corbyn test’ – or, for the United States, the ‘Hillary Clinton test’.
That is to imagine in any constitutional controversy the politician(s) at stake being the opponents of the politician(s) at stake.
So, instead of Trump it would be Clinton.
And instead of Boris Johnson it would be Corbyn.
Would the current republican senators who are solemnly contending that the trial of Trump is ‘unconstitutional’ or insist that his conduct before and during the insurrection on 6 January 2021 was (literally) unimpeachable say the same, all other things being equal, if the proceedings were against Clinton?
Similarly, would political and media supporters of the government of the United Kingdom still nod-along (and indeed clap and cheer) if it were Corbyn threatening to break international law in respect of Northern Ireland?
Of course not.
Indeed, in respect of the Clinton example one only has to look at the casual republican partisanship of the impeachment of Bill Clinton in 1998 to show how easily roles can be reversed.
*
So the basic test for any politician or media pundit when invoking any argument from constitutional principle should be simple.
Would that politician or media pundit still assert that principle, and just as emphatically, in respect of a political ally or opponent, as the case may be?
‘Would you say the same, if it were..?’
If so, the assertion of that constitutional principle has proper purchase, and it should be taken seriously.
And if not, like an unwanted book of David Hume, the contention should be committed to the flames, for invariably it will be sophistry and illusion.
*****
If you value this free-to-read and independent legal and policy commentary please do support through the Paypal box above, or become a Patreon subscriber.
Each post takes time, effort, and opportunity cost.
Suggested donation of any amount as a one-off, or of £4.50 upwards on a monthly profile.
This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is usually published at about 9.30am UK time – though some special posts are published later.
You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
*****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated.
Comments will not be published if irksome.
Once again, thanks for a very interesting read.
I agree that one should always do the test of thinking whether one is acting from principle or partisanship. However, it isn’t quite that simple. All constitutions are set up and amended partly out of principle and partly because of the effect they have. The reason we have trial by our peers is partly because it is fair, but mostly because the nobility of the middle ages didn’t want either the king or their inferiors judging them and taking away their possessions. The reason why there is the balance there is in the US between the federal and state authorities is partly because it is a good thing to have a balance and partly because there was a row over slavery. The reason why the Good Friday Agreement is as it is partly is to do with the genuine attempt to create a new environment to respect different national traditions in Ireland, but mostly because it ended armed struggle, which in turn was triggered by the refusal of various parties in the early 20th century to agree a form of self-rule under the Crown for the whole of Ireland. And so on.
And any constitutional amendment equally will be driven both by principle and by politics, whether it is changing the composition of the upper house of Parliament or devolving powers to regional mayors, or anything else. A referendum on the EU was only agreed because Cameron thought he would win; if Johnson thought a referendum on Scottish independence would be won by the unionists, it would be set up like a shot.
Alas, all politicians will claim they are acting for the constitution when they are trying to get political advantage. And occasionally the other way round.
That is just how the game is played.
So what has given rise to this hyper-partisanship?
One answer is inherent flaws in electoral systems which drive a push to one side or the other to get votes. But we by and large got by ok through the 20th Century. So is it therefore the collision of old systems with new models of communication which enable self-reinforcing echo chambers.
If the desire is to reduce hyper partisanship then somehow electoral systems may have to be redesigned to suit the times. Cue the collision with fogeyism which would consider this idea to be anathema.
The Bill Clinton impeachment trial in 1998 is an interesting parallel, and shows clearly that hyper-partisanship goes both ways and it is not a new thing. All 45 Democratic senators voted to acquit Bill Clinton, joined by a handful of Republicans, so never close to the majority required to convict. (Clinton was of course later fined for contempt of court, accepted a fine to end a perjury investigation, had his Arkansas law licence suspended, and settled a civil claim on unfavourable terms. So in a sense he had done at least some of the things listed in the articles of impeachment.) But what would either side have done if the defendant was George Bush (either of them)? Or indeed how many sitting Democrats would vote to acquit Hillary Clinton, if she’d done the things Trump has done?
I suppose it is relatively easy to say you would think the same, if an accusation was directed at a political ally not an enemy (or an opponent not a friend). Perhaps best as an intellectual challenge to oneself.
This kind of test seems similar to the one used to judge whether a proposition is trite or carries meaningful weight: how many people would aver the negative. Tough on crime, tough on the causes of crime. Education, education, education. Brexit means Brexit. Weak on crime, weak on the causes of crime? Ignorance, ignorance, ignorance? Brexit means something other than Brexit. Hmm.
Isn’t this in part – large part? – due to social media and game shows and the insistence of some of the press on always presenting the “other side,” to “balance” the argument? A world where becoming the Apprentice, winning Strictly, getting a toy with a burger meal, having the best slogan, indulging one’s feelings, is more important than logic, justice, mercy, truth, facts, a world where anything goes and so everything does. A world where Hitler’s view must be given fair weight, climate change may be denied, any conspiracy is worth a throw. Who cares about boring old constitutionalism anyway!
If Hitler had been captured alive in 1945 he would have been entitled to a fair trial. Being fair and impartial is not a recent thing. Certainly nothing to do with social media, which tends to resemble a witch hunt. Impartiality is the basis of democratic justice.
I wasn’t talking about the courts, in fact the opposite where properly administered justice is discounted in favour of the immediacy of feelings and hysteria. Re Hitler, I was thinking of the idea that surfaces from to time of holding a public debate on whether or not Hitler’s views were valid. But that is like holding a debate on the rights and wrongs of FGM. Re climate change, it is absurd to make the argument between acceptance and denial a matter of balance when it is no such thing. The press, including notably the BBC, claims to pursue fair and impartial balance when a subject is 90:10.
I’m not sure what you mean by “Being fair and impartial is not a recent thing”. I meant the opposite, that being so seems to be fading away in favour of the witch hunts.
You said:
“Isn’t this in part – large part? – due to social media and game shows and the insistence of some of the press on always presenting the “other side,” to “balance” the argument?”
That sounded to me like an argument against balance. You talked about the press but you really meant the BBC. As a broadcaster they are under a legal obligation to provide balance, even in a 90:10 situation. Minority views are important and should be heard, even if it is climate change denial, because they may need to be confronted with reason. If we become a “majority always totally wins” type of society we really have thrown out constitutionality. We can’t just ignore conspiracy theorists because left to their own devices they can become as QAnon has become, a dangerous political movement.
Comparing to arguments about FGM is false because FGM is a crime, balance does not come into it. There is no valid moral argument to balance against it.
My comment about social media was because you appeared to be blaming it for people wanting balance, and I pointed out balance was not really what social media is about at all. The anonymity of it leads to very polarised views, not balance.
Unfortunately, you have wholly misunderstood what I have been saying. I was being largely sardonic, hence my use of inverted commas. My last sentence should indicate this. It might help if I lengthened my first sentence, thus “… due to social media and game shows and also to the insistence of some of the press on always presenting the so-called “other side,” to so-called “balance” the argument?” I am advocating balance, not railing against it. You have ignored my second, longest, sentence. That world I refer to strikes me as a faux way, a parallel way, a ghost way, of tackling serious issues.
I didn’t “really” mean the BBC; I gave the BBC as an example. A 90:10 situation is by definition not balanced but the press, including notably the BBC, sometimes presents it as if it’s 50:50. Radio discussions were not always thus.
I am totally in favour of discussing climate change and climate change denial and hearing minority views, so long as they are acknowledged to be minority. I am no adherent of the position that the “majority always totally wins,” which I think is a thuggish point of view. Indeed, for that very reason, I am not ignoring conspiracy theorists. What I am doing is countering the idea that a conspiracy (or terrorist) theory is of equal weight with its opposite. Nazis followed Hitler because they believed he was right. Those who practice FGM in countries where it is not illegal believe they are right. I believe, and I gather you also believe, that such positions are wrong. Unless one is a relativist, then one must choose the “flag” under which one stands. I stand for liberal values and democracy, talking with one another in order to break down polarisation of views and actions, and always balance.
In the case of Trump’s impeachment, if the mob had found and captured Mike Pence, Trump had done nothing, the vote for Biden had not been delivered, would hyper-partisanship still held true? Is there any limit to how far hyper-partisanship can go?
I am trying to imagine events in the alternative universe where the Corbyn government is proposing to break international law in respect of Northern Ireland. Lets see… “Unelected Judges” have ruled that Labour’s ambitious plans to build a socialist economy breach the Human Rights Act 1998. Labour sources indicate that, in the name of “the many, not the few”, the government proposes to repudiate the “bourgeois property rights” protected by the European Court of Human Rights, by repealing the Act and by ending the jurisdiction of the Court over the UK. The government tries to reassure nationalists in Northern Ireland by promising a border poll. How do Conservatives respond?
Thomas Carothers of Carnegie Foundation thinks the story of the extreme (or ‘pernicious’) polarisation in the US goes back 60 years with both the Democrats and Republicans to blame (through more Republicans recently). He places the start of that process some time around the protests (from the left) against the Vietnam War, then the Reagan administration, Tea Party etc from the right. Here he is in 24 mins conversation with Stephen Kotkin the Princeton historian this January:
https://www.top1000funds.com/2021/01/carothers-view-democracy-in-trouble/
Impeachent as a process has always been an odd bod, though.
Separation of powers in the US means that Congress is basically free to organise its business (including impeachment trials) however it wants, thus making every single Impeachment trial a matter of politics rather than law, and impossible to judge by legal standards (see the Senators having quiet chats with the Trump legal team – If Defence counsel in a trial had convserations with jurors, there would be rightful outcry, arguments or a mistrial, and no doubt sanctions on all parties would follow. Or that alarge number of Senators are going to vote to acquit, in the face of overhelming evidence, despite having sworn an oath to try Mr Trump fairly.)
The question in my mind, really, is pondering whether the Framers had the view that that’s how the process should be, or whether they actually believed that future generations of Congresscritters would act impartially (given that partisanship was rampant in their own time, I seriously doubt the latter).
I wonder where the Fixed Term Parliaments Act fits into this framework. A pretty fundamental structural change to the UK constitution was introduced, affected national politics in quite a profound way, and may now be discarded. What is striking to these expatriate eyes is the casual manner in which it would enter and possibly exit the stage of Westminster politics, almost unnoticed by the majority of the citizenry.
Hyperpartisanship also arises from a number of concepts and constructs which could potentially be reinvented and redesigned in the modern technological era. For example, political parties in opposition (particularly where there are two dominant parties), first past the post voting in representation and in political decision-making, political representation in its current form (for example one MP representing around 60,000 people) etc etc. Hyperpartisansip and polarisation make for expensive and wasteful ways to run society – for example the efforts made by incoming governments to wholly reverse some of their predecessors’ actions.
These concepts and constructs were possibly the best that could be done at the time, but we could probably do much better now if we set our minds to it.
Your definition of constitutionalism is
what I also see as fundamental to the definition of democracy. It follows that hyperpartisanship is the enemy of democracy. For the current US Republican Party base Democrats can only win elections by what they assert to be fraudulent means. This strikes a dagger through the heart of the US constitution, and as the impeachment managers made clear repeatedly, the purpose of the impeachment was to defend the constitution.
Sophistry and illusion are where social media has driven democratic politics. Social media has fanned the flames of populism through fanning the flames of discontent. Nothing as technical or nuanced as Constitutional Law gets a look in. The majority of most electorates would not be able to distinguish between Constitutional Law and any other version of law.
There is very little on social media that comprises a comprehensive representation of any argument for or against anything. To think through anything one needs to be armed with the facts and arguments with which to think. In spite of having all of everything at her disposal, Theresa May was caught in this trap. Hence her never-ending repetitions.
The question that needs to be asked of politicians and a great many lawyers is this: “What does what you are saying actually mean?” We live in a world of far too much saying, not enough thinking and – in consequence – a dangerous deficit of meaning.