The last post over at my Substack was fairly UK-centric – indeed Anglocentric – in its approach to the issue of constitutional crises.
That post averred that we do not often have constitutional crises in the United Kingdom though we (too) frequently have constitutional dramas and excitements. But it also warned that we are never far from a constitutional crisis, and that only self-restraint and deference to checks and balances have stopped constitutional tensions converting into contradictions.
Glancing at the United States, however, the situation appears to be far more serious. Over the Atlantic there seems to be a fundamental threat to constitutionalism, the effects of which may become very obvious in the coming year.
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A few years ago, a complacent liberal might have assured you that in a democracy the perils of illiberalism could be dealt with in two simple ways.
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First: politically one could defeat illiberals by winning struggles within political parties and by winning elections between political parties.
Like the proverbial poor, illiberals are always with us, but they could be kept away from power by gatekeepers and electoral prowess.
But what happens when the gatekeepers fall away and then the legitimacy of elections is itself contested? When the electoral wells are poisoned?
This is the immense problem created by the Trumpite lie about the “stolen election”. What good is defeating illiberals in a general elections – and being seen to defeat illiberals by sizeable votes – if the legitimacy of those elections is denied?
The old certainty that the best way to defeat illiberals is by defeating them at the ballot box is no longer sound if the ballot box is not respected.
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Second: even if the illiberals gained executive or legislative power, the individual would still have the protections of their civil liberties as guaranteed by an independent judiciary. In this way the minority would be protected against any apparent majoritarianism.
But what if the very notions of civil liberties and of an independent judiciary are also trashed? What if the systems of rights and of their enforcement are, like elections, robbed of their legitimacy?
Here the illiberals are fighting the second front of their overall campaign. Just as electoral verdicts against them are dismissed, so are judicial verdicts. Their objective is to have no constraints on what they can when they have power, to have nobody who can say “no”.
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Of course, the illiberals have not so far won either of these battles. Trump and his supporters are still out of presidential power, whatever they say about elections results. Illiberals have also not discredited the systems of rights and their enforcement (and indeed they have mixed feelings, given they often wish to rely on their “right to bear arms” – as they interpret it).
But these parameters of constitutional action are being continuously contested, even if they are not yet destructed.
If the results of elections are not accepted, and if the rulings of the courts are respected, then the conventional political and judicial checks on illiberalism may be insufficient.
And if so, what happens?
Nobody knows – and even best guesses may not be accurate. Like Withnail and Marwood, we could be drifting into the arena of the unwell, making enemies of our future.
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This post was prompted by the discussions about whether Trump should be disallowed on various ballots by reason of his participation as an “insurrectionist”.
Such an huge intervention would have implications.
The normal inclination would be to oppose such a restriction on political choice: that the way to defeat Trump is at the ballot box and, if then appropriate, in the courts that apply electoral law.
But, comes the response, what if Trump and his supporters flatly reject the legitimacy of the ballot box and the courts applying election law? What if that standard liberal constitutionalist stance is no longer valid?
It is a difficult if not impossible question to answer, at least by the application of usual liberal principles.
And so the new year is going to be interesting.
2024 has the potential to be a very exciting year constitutionally.
And as we know, constitutional law should not be exciting, it should be dull.
Brace.
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Best wishes for the new year, and thank you for your support and following.
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