Law and policy after Trump and Brexit: what happens if hyper-partisanship and populist nationalist authoritarianism does not fade away?

6th March 2021

As the year 2016 recedes there will be a temptation to think that the politics of 2016 will eventually recede too.

Things come and go, and human affairs often move in circles – a period of illiberalism will surely be followed, soon enough, by a liberal spring.

The days will start getting lighter, and so on.

But what if that does not happen – and the days stay just as dark, and perhaps get even darker.

What if Trump and Brexit were not low-points but preludes?

Such have been the various social, economic, technological and media dislocations of the last couple of decades, there is no particular reason to believe that we will have a happy return to the certainties of a previous political order.

In the United Kingdom, for example, we still have the government gaming legality and threatening – again – to break the law to the claps and cheers of the easily impressed.

In the United States, Trump may have (temporarily) gone – but Trumpism certainly has not.

Certain politicians know that appealing to and motivating a particular illiberal constituency will be sufficient to keep them in or close to power. 

And this sort of politics will mean that constitutional norms will continue to be contested and politicised.

If this dismal prospect is in the offing, then what is there to do from a liberal constitutionalist perspective?

From the point of view that there is a balance between the rights of an individual and the powers of the state, and that each element of the state – and especially the executive – should be subject to checks and balances.

What should one do if things do not, eventually, settle down?


This is a serious problem – as liberal constitutionalism is not well suited to hyper-partisanship.

Liberal constitutionalists who react with outrage or despair are the ‘owned libs’ whose adverse reactions are validation of the provocations.

And those who seek to avoid confrontation run the unpleasant risks of quietism.

Perhaps, as one Victorian politician put it: not all problems have solutions.

Perhaps it is now the lot of liberal constitutionalists just to try to protect what they can in the face of illiberal onslaught.

As this blog contended back on new year’s eve, there is a public good in pointing out that things are wrong, and in explaining how and why those things are wrong.

That is: in describing the world that is passing away.

It is a depressing predicament.


All this said, there is some scope for optimism.

Even taking Brexit and Trump at their highest, both were checked by constitutionalism.

There was no hard Brexit – and the two Miller cases and the Benn Act ensured that there was both a withdrawal agreement and a trade and cooperation agreement.

There was not a successful coup in the United States of America – the electoral college was not subverted.

Liberal constitutionalism has taken a substantial bashing in both the United Kingdom and the United States – as well as elsewhere – but it has not (yet) collapsed, and indeed it has shown marked resilience.

Liberal constitutionalism is perhaps turning out to have been stronger than those of us at the time realised.

And so there is still a role for liberal constitutionalism in the post-Brexit and post-Trump age.

The huffs and puffs have not (yet) blown the liberal constitutionalist house down.

We may be in in a post-Brexit and post-Trump age – but we not (yet) in a post-liberal and pst-constitutionalist age.


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17 thoughts on “Law and policy after Trump and Brexit: what happens if hyper-partisanship and populist nationalist authoritarianism does not fade away?”

  1. The basic problem is that you cannot eat or bring up a family sheltered from the elements by ‘liberal democracy’ or the rule of law. They aren’t going to be seen as objectively good things if they appear not to deliver a path to a future for entire generations. But of course we aren’t seeing the failure of liberal democracy, we are seeing the hollowed out shell of liberal democracy corrupted & captured by a rentier capitalist oligarchy. People who can buy themselves the political power to ensure that their interests are reflected in policy over the interests of the less monied voting public, in a way guaranteed to generate cynicism & anger.

    It’s very hard for populists, even populists backed by billionaires, to whip a vast angry mob into blaming all their problems on ‘them’, if there is no angry mob in the first place, & people don’t really have much to be angry about. But its instructive & relevant that as inequality gets worse, & the people who are feeling the downside of the donor service version of democracy that basically gives returns on donor investment at the expense of most voters are starting to outnumber those who can be gaslit into supporting the status quo, suddenly now (well, 2016) is the moment both here & in the US to whip up the forces of reaction & try to overturn majoritarian rule in favour of Apartheid South African style minority rule based around energising the most toxic elements of the far right & disenfranchising as many people opposed to that as possible. In the UK, Brexit has provided a culture war shibboleth that is currently being used as a crowbar to hold open the portcullis & allow in a UK based fox news clone & more to try to recreate a Steve Bannon style non-reality-based media bubble to pull the same stunt in the UK that Trump has & still is performing in the US.

    The problem is the zombie corpse of an economic order that benefits a tiny number of incredibly rich & powerful people who feel like any change to that economic order, which has been propped upright at their command even though it self destructed & died in 2008, is an existential threat to them. Which is why they commanded politicians to re-animate its corpse & pretend it wasn’t dead in the first place after it keeled over dramatically in 2008. If we end up living in a fascist dictatorship it will be to preserve the wealth & power of those people. The irony is that they will, if they go that way, be guaranteeing that they, or maybe their children, or possibly if lucky their grandchildren will end up ‘enjoying’ whatever the 21st century version of the French Revolution’s tumbrils or the Bolshevik’s firing squads will be. Their well deserved demise in such circumstances would be scant comfort to the rest of us…

  2. I think you are being very optimistic. The Home Office (aka Priti Patel) is trying to keep the restrictions on public protesting introduced due to the “pandemic”. The Police already have sufficient powers to be able to control any real insurrection. You also have the Government in the process of repealing the Fixed Term Parliament Act, on its own terms. You have a Governor in the US changing the law so that he can appoint his own successor, without reference to voters…..

  3. Your blog ended on a positive note, however I’m left with niggling doubts – from Monday 8 March, anyone who enters “a port of departure to travel internationally” in England without a completed exit visa form will be committing a criminal offence – even if they are legally entitled to travel.
    Airlines, train operators and ferry companies will be required to check that passengers have a valid reason to travel abroad.
    I used to shake my head gravely while queuing for an exit visa to leave Egypt. Now we are in the same place?

  4. Martin Luther King Jr. often said, “The arc of the moral universe is long, but it bends toward justice.” Let’s hope it’s so.

  5. You say “There was no hard Brexit”.

    But remember: in 2016, after the referendum, a soft Brexit was something like the Norway/ EEA relationship and a hard Brexit was a bare free trade agreement.

    As the Brexit revolution radicalised, a hard Brexit became leaving without a withdrawal agreement and a soft Brexit became any sort of amicable parting.

    So yes, we did have a more or less amicable parting. But that was only after massively lowering the expectations bar.

    I know the EU panicked and for three hours intended to invoke the unilateral action provisions of the Northern Ireland protocol. That was inexcusable. But soon over.

    But the UK is now, for the second time, in a planned, intended way setting out to breach the protocol. So the threats to the rule of law in the UK remain.

    1. Yes, despite all the gaslighting this is a hard Brexit.

      Unless… just maybe… we could still achieve a no deal Brexit? All we would need to do would be break an international law or two, just enough to pursuade the European Parliament not to ratify the TCA.

      1. FWIW I have a hunch that this will happen. Britain is more interested in hating Europe than in its economic future

  6. David – I agree with what I think the general thrust of your argument is…indeed, where would we be if liberal voices hadn’t been raised ? Things ain’t good, but they could have been far worse. We get the government we deserve, so if we leave the field to the illiberal right we only have ourselves to blame. Since the late 70s there have been several lurches to the right, and I would argue that the hyper-partisanship originates from a belief on the right that compromise is no longer a virtue – it’s their way or the highway. Even when the left was in power after M Thatcher, this was a “new” left, hardly distinguishable from a moderate right. We now have the “swivel-eyed” cadre of the likes of J Mogg holding the reigns of power, and their aim is to make this a permanent state of affairs. How much further to the illiberal right can we move ? Liberal voices must be vocal, otherwise the illiberal rhetoric, policy and actions will become the norm – there must be an alternative on display, to counter that world view, to demonstrate the value of liberal ideas and to remind the “easily impressed” what they have to lose.

    One cannot lead an “easily impressed” horse to water, but we can at least point out that terminal dehydration is avoidable.

  7. ‘The huffs and puffs have not (yet) blown the liberal constitutionalist house down.”
    Could you please expand on this. All I can see at the mo is a collapsed house whose inhabitants are going through the motions and acting as if the house is in tact.
    I’m a lay-person. Prorogue pushed me to learn what I could about UK’s checks and balances. I have to say what I learnt, the extent of the PM power over Parliament and regulators etc, as I understand it, was a profound shock.
    If you could explain what you see for lay-people like me – in your new podcast? (& Thank you for all you do)

  8. Populist and illiberal governments obtain their parliamentary majorities almost exclusively in electoral systems with a first-past-the-post component.

    In most of Western Europe the problem is much less severe than in the UK and the US – the populists are present, usually taking up a significant number of seats in parliaments, but they are rendered relatively powerless because they are ignored by most mainstream parties. In this way a political system can ‘absorb’ the protest vote and continue to function relatively well.

  9. Things fall apart; the centre cannot hold;
    Mere anarchy is loosed upon the world,
    The blood-dimmed tide is loosed, and everywhere
    The ceremony of innocence is drowned;
    The best lack all conviction, while the worst
    Are full of passionate intensity.

    And what rough beast, its hour come round at last,
    Slouches towards Bethlehem to be born?

  10. I wish I could share the optimism of DAG.

    Even if constitutional forms survive, dishonesty, law-breaking and corruption are flourishing and the constitutional forms act as a protection for the perpetrators.

    It is really hard to see why and how we get from here to somewhere better.

  11. surely one reason for the mess we Brits are in is the very use of a referendum in 2016 to decide in a simplistic way what was a very complex issue. Referendums are intrinsically populist and they undermine constitutionalism, liberal or otherwise. In the US there was no referendum, but a manifestly crazy electoral system. Everywhere, liberalism and constitutionalism are also the victims of the populist characteristics of social media, as experts are losing authority and becoming the “liberal elite” and thus the enemy of “the people” and faux patriotism

  12. “Perhaps, as one Victorian politician put it: not all problems have solutions.” Given such an unvictorian way of putting it, and your uncharacteristic vagueness, who is this paraphrased politico?

    I find a clue in your deleted post of 17 May 2019: “There was a Victorian conservative politician – probably Benjamin Disraeli or Lord Randolph Churchill – who sneered at a person mentioning a political problem. The gist of the sneer was: dear chap, are you one of those who believe problems have solutions?” Alas, heavily gisted and citation still needed.

    Searching further afield online, I find – accompanied by a suitably Victorian portrait photo – this inspirational quote attributed to John Edward Gray (Walsallian zoologist, 1800–1875): “We have no problems, only situations. Not all problems have solutions, but all situations have outcomes.” Which is perhaps unfortunate for John Edmund Gray (US energy consultant, 1922–1997), who said something suspiciously similar when appearing before a Senate inquiry into nuclear nonproliferation in 1977.

  13. I certainly appreciate your careful analysis and warning and am chilled too by the way things have gone and are going . However, rather than despair, we should consider all that is good in our own lives and how fortunate we still are to live in this privileged country, not least with our NHS. And not forget that Hitler was defeated in the end (despite evil residue). We should always hope, not least for the reason that there is no point not doing so.

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