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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