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.
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