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.
Am I right in thinking that you use the word “élite” to mean, among other things, “minority”? I get the feeling that other people use it thus, and that the package of other things can vary from speaker to speaker.
I think the key concern is that there is no legal order, whether domestic or international, that is strong enough to resist widespread belief in the superiority of one group of people over another. What we are then left with is a constant need to assert or prove your strength, and to make sure that your opponents do not have equality of arms.
The giga-rich disruptors surrounding Trump aren’t interested in a new international legal order. They want to be running independent nation states without regulations, for their own benefit. The citizens may benefit too, if they obey the laws imposed, but they’ll be exploited.
You may be tired of progressives, and they aren’t elites because they originate from the majority, but they create and maintain the democratic institutions that give you, and everyone else, fundamental rights.
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.
“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.”
Whether or not individual judges or members of congress are disposed to provide the check and balance and pushback to each illegality, the process in each case takes time, expertise and resouces. The sheer quantitiy and breadth of the attacks on the law and constitution means that the checks and balances have been completely overwhelmed – covered by a landslide. I’m not confident.
Great summary of trends in the world as usual. What interests me is the WHY of declining tolerance everywhere, which to me is at the heart of “constitutionalism” . Until we fully understand the complexity of that problem, I fear that we will not be able to move forward.
A toxic mixture of inequality, declining group coherence, social media, education, and raised expectations, all seem to play a part.
Made me think of that film ‘A Man for all Seasons’ and that chap Roper.
In most people’s mind lawyers are not liked much, they seem to run an expensive self contradictory mess that gets in the way of reasonable people and gives a free hand to wrong-uns. Some of the time those people are right.
Which gives an in to Trump and those who would use him to bend and twist the law. In a way Trump is an American King, he cuts through the checks and balances and circumvents the lawyers. He slaps tariffs on those sneaky Canadians and Mexicans and on the wicked sons of Fu Manchu. Not a lawyer in sight, all hail to the King.
Trump and friends will discover the rest of the world has choices regarding trade and in the end ‘it’s the economy stupid’.
On the one hand I read articles, like this one, about the enormous breadth of attacks on institutions. And then I read other articles – and not from right-wingers – saying that most of the executive orders are performative actions which are so defective that they won’t get anywhere. So which is true?
Already we see many of these orders held up.
All Inspectors General were “sacked”, but they point out that it was not legal and so does not amount to a sacking, and so carry on doing their jobs.
Orders to stop a huge breadth of funding payments are broadly held up by a federal judge, because many of them will be illegal. And even Trump is realising that many of those defunding orders are so daft that they should not be carried through. For example, they tried to defund the detention camps in Syria for Islamic State terrorists. After additional reflection of about 2 seconds, even Donald Trump now realises he shouldn’t let hundreds of very dangerous Islamic insurgents go.
The order to change the interpretation of who can claim birthright citizenship is held up by a federal judge, who laughs at the unconstitutionality of it. The Economist thinks that one is not going very far.
The one thing I’ve seen that does look really kooky is Musk moving in to the Federal Payments System – that needs more examination.
So on one interpretation, it’s just Trump Business as usual, crap orders that mostly end up doing little, except that he had a huge pile of them in his pocket to issue on day one. And on another interpretation, it’s a massive attack on the state. I have tried asking people who take the second view to reinforce their position by giving me a list of really worrying developments, with explanations, and I don’t get one. So, what’s the truth? I find neither position adequately evidenced.
“On the one hand I read articles, like this one, about the enormous breadth of attacks on institutions. And then I read other articles – and not from right-wingers – saying that most of the executive orders are performative actions which are so defective that they won’t get anywhere. So which is true?”
I have said both – though I am sad you missed my post saying the latter, as it may have saved you typing out such a long comment.
Both can be true – your posited “either/or’ is a fallacy.
What I know about in science. In that field it seems as though the holding up of grant payments has continued despite being held to be illegal by a judge. The heads of those institutions appear to be following the orders of the executive and ignoring the judiciary.
My understanding of the inspectors general was that when one held their sacking to be illegal, and continued working, they were physically ejected by security (although I don’t have evidence of that)
The only film I have seen about the Kray twins is called “The Krays”. In it there is a scene in a prison cell which they are sharing with an older prisoner, played by Michael Elphick. He teaches them a life-lesson.
“When people are afraid of you you can do anything. And, by Christ, you boys scare the shit out of me.”
Trump doesn’t need to scare people to get his way. Half the country actually want him to succeed. It’s how populists always get to power. Once there it’s very hard to get them out.
The Kray analogy does work in one respect. A lot of people living in the East End liked the way low level crime reduced under their reign of terror. But they probably didn’t think too much about how they did that.
Incisive, but thankfully without the despair usually – and understandably, though not helpfully – present in writing in this area. Though not, strictly speaking, on point I would add that quite a bit of the reason we in the USA are where we are is down to an abject lack of both public and political leadership outside the reactionary/oligarchic cabal (not too strong a term, I think). Corruption undoubtedly plays a large role in this failure, but perhaps there is also a psychological aspect. By this I mean that while one political party has been taken over, the members of the other seem by and large to be acting as if we were still operating within the rules of the game, an approach so patently false that this dissonance/inertia/failure could give rise to a new iteration of conspiracy theories. But perhaps the answer is simpler. We should always recollect that those in politics are not necessarily more able at anything other than occupying their seats, as this quotation from Madame Roland suggests:
“What has most surprised me, since the elevation of my husband has afforded me the opportunity of knowing many persons, and particularly those employed in important affairs, is the universal mediocrity which exists. It surpasses all that the imagination can conceive, and it is observable in all ranks, from the clerk to the minister. Without this experience I never could have believed my species to be so contemptible.”