What is a “constitutional crisis”?
There has certainly been a great deal of constitutional drama in recent years – in the United Kingdom, the United States, and elsewhere.
But some of this drama somehow resolved itself.
In the United Kingdom, for example, the breathless threats and press briefings that the government was to do unlawful things in respect of Brexit in the end came to very little, though some (impotent) legislation was passed.
The United Kingdom supreme court in the Miller cases and parliament, by means of the Benn Act, put the government back into its constitutional box – and the once intense political-media frenzy over the Northern Irish protocol came to a whimpering end with the Windsor framework.
But sometimes constitutional dramas do spill into constitutional crises – political tensions harden into political contradictions, and these in turn can result in bloody violence.
On the islands of Britain and Ireland this has happened at least four times since the 1620s: the civil wars and political violence of the 1630s and the 1640s; the succession and religious conflicts from 1685 to 1746; the Irish war of independence and the Irish civil war; and most recently, the Troubles.
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Constitutional crises are serious political conflicts where constitutional means are unable to resolve the conflict, and the ultimate outcome of the conflict then becomes uncertain.
Often the political actors involved in the crisis will resort to violence – or be prepared to do so.
At such times it may not matter that a constitution is codified or not. For what has failed is not the form of the constitution, but its substance. The real failure is that of constitutionalism.
What then is constitutionalism? It has many definitions, but one approach is to regard it as the acceptance that there political rules and principles that should apply, regardless of partisan or personal advantage.
In other words that there are rules of the game.
What has happened in the United States over the last few days looks like a determined and comprehensive attack on various political institutions, by and on behalf of the newly re-elected President Trump.
As there are well-grounded fears that neither the federal judicial benches nor Congress will check and balance this attack, then there are the makings of a genuine constitutional crisis.
And the ultimate cause of this is not so much the failure of their codified constitution, but a deeper and wider failure of constitutionalism – including but not limited to the licence given by the United States supreme court to the president to do unlawful acts, and the failure of the Senate to discharge its constitutional obligation to convict Trump on impeachment after the attempted insurrection of 2021.
From such things, other things have now followed.
Brace, brace.
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Indeed. And it’s not just that nobody in Trump’s gang has never deep-read anything, including anything by A. V. Dicey. The tide of popular culture (including much of mainstream media culture) is against constitutionalism, and instinctively dismissive of (even outraged by) it. Checks and balances? Separation of powers? Forget it. The modern, er, mind prefers that a country be ran in the manner of a TV game show. In all of those popular distractions, there’s always a person (or small group of people) who` wield absolute and unfettered power (and who does so arbitrarily). Incidentally, this is also why anyone who has ran a company is fundamentally unsuited for government in a democracy. As Paul Weller noted all those years ago, there’s a thin line, and a short time, between the public getting what the public wants, and the public wanting what the public gets.
There is an article in today’s Times attacking Lord Harmer for being too dedicated to the rule of law.
The article is barely literate as might be expected.
But if you really want to worry read the comments.
Those who comment have no concept of the rule of law. They just think it is a game for lefty lawyers.
Strange that the left seems to get the blame for legal conservatism while the right has given up on it.
Superb analysis as always; condensed into an article that is both easy to read and comprehend without sacrificing substance.
What is deeply disturbing about what we are witnessing is the absence of adherence to accepted constitutional principles in the pursuit of partisan advantage, the weaponising of lies and deceit and the absence of any form of shame, beyond the perfunctory nod in that direction. And all in pursuit of personal power with no broader notion of the “public good”.
Of course such developments are not unique in the politics of the United States. But what may be somewhat unique is the dismantling of the morality which lies behind the constitutional norms and values underpinning democratic society. This is facilitated by the utter lack of courage which is so evident amongst the political class and a very evident tribalism which precludes and possibility of real debate and discussion. In fairness, one can say about American politicians is that once bought by vested interests they tend to stay bought. If anything shows the need to control the flow of money and access to the political class then the obvious corruption in American politics demonstrates that if this is not done pluralism dies. And pluralism is virtually dead in the US with an increasing concentration of wealth, power and influence over the last few decades.
But the current path followed by Trumpians is the road to tyranny.
Constitution’s globally inevitably change – nothing lasts forever & a certain new President, for a variety of reasons is ripping up the old rule book.
What surprises me is how long the World order post WW2 lasted and is now morphing into something quite different.
Trump, loathe him or like him, is in front of the charge. International norms along with the international law are necessarily fragmenting – in the US ( MAGA) and now EU ( sovereign autonomy autonomy). Russia & China will do their own thing.
Global organisations like the UN and WHO are struggling to frame a coherent response – the WTO has been asleep at the wheel and many think it’s moribund.
Maybe we’re just entering a new form of global constitutional turbulence – the global progressive elite have, to be fair, had a good run of things for over 50 years- now maybe is the time for a new international legal order with statehood/nation state firmly in the middle.
You refer to “the licence given by the United States supreme court to the president to do unlawful acts” and the recent decision not to review actions taken as President may point in that direction but I would suggest that that licence has not yet been completely given.
What is more important is the licence given to the President to ‘pack’ the Supreme Court with judges who are not simply sympathetic to the President’s views – which seems built in to the Constitution – but pretty much his creatures, as it were. It may be that the present justices, like many of their predecessors, will turn out to be less pliable than they currently appear but it does point to a serious weakness in the Constitution.