From ornament to instrument – how current politics are forcing constitutions to work in the UK and USA

6th January 2022

This is just a short post, prompted by the ongoing inability of the Republicans in the United States House of Representatives to elect a speaker.

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There is usually no problem in a speaker being elected: the first day of the new House of Representatives is usually a ceremony, attended by the smiling families of new congressmen and congress women.

But now we are on the third day of voting, because a group of hardline Republicans are contesting what would normally be a coronation.

Two years ago today (as I set out in last week’s Substack essay), the counting and certification of electoral college votes was also converted from being a mere ceremony to something far more politically vital.

Indeed, a plan was in place to use what was normally (again) a coronation into an opportunity for the defeated president Donald Trump to somehow retain office.

And over here, during the last days before the United Kingdom left the European Union, there was an attempt to use a prorogation of parliament so as to force through a no-deal exit.

That (purported) use of the prorogation was contested and then quashed by the Supreme Court.

But usually prorogations are dull and straightforward affairs, of little interest even to political obsessives.

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Our current volatile politics keeps converting dull and ceremonial elements of our constitutions into things that matter.

Our constitutional arrangements are being forced to work, where they previously only had to decorate.

To an extent this is a good thing: like all the functioning parts of a car occasionally being tested for a MoT test.

But it also may be a bad thing, as too much stress may mean that element of the constitution buckles and breaks.

Either way, it is certainly exciting.

But, as we know, constitutional law should not be exciting, it should be dull.

Day-to-day politics should take place within the parameters of a constitution, not constantly pressing on the edges, straining them as far as they will go.

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New post at Substack: 2021 and 2022 were the years constitutionalism was tested

31st December 2022

Over at Substack, for paying subscribers, I have posted a 2000 word essay (with even some multi-sentence paragraphs!) reviewing 2021 and 2022 from a constitutionalist perspective.

I will be doing such an essay at Substack every week on Friday for paying subscribers.

(These essays will also be cross-posted on Patreon – and I will also email copies to anyone who has made a PayPal contribution in the last year – just make a “Private” comment below asking for this.)

Normal daily, free-to-read blogging on law and policy will resume here on Monday.

Thank you for reading and supporting this blog.

I wish you a happy and constitutionally dull new year.

The magical thinking of Donald Trump

22nd September 2022

A theme of this blog is that law is akin to magic, and that law and lore have a good deal in common.

For example:

But the comparison is only made as a-kind-of-analogy.

I never thought that when writing about law in modern times I would come across actual magical thinking.

I was wrong.

Consider this:

Here the proposition is not that Trump could unilaterally, by some form of words, either in writing or said aloud, change the classification of documents.

The proposition is that by thinking a thing, with that thought having no other trace or manifestation, then a classification of a document can change.

This would mean that the legal consequences for other people with reference to that document would be different, even though there was no record of Trump’s thoughts, because Trump had thought one thing or another.

And, presumably, Trump can classify the document by thoughts alone, as well as de-classify it.

Perhaps he could even in turns classify and de-classify a document every few moments, and nobody would ever know.

It would be an extraordinary thing – even supernatural and paranormal.

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Of course, what is (probably) going on is that Trump is resorting to the only defence he thinks he has left, which accords with the evidence.

There is no actual evidence of de-classification, then his explanation needs to deal with that absence.

There is also the implicit point that if he accepts these are documents which he “de-classified” then they were not “planted” – as that defence would seem to contradict his purported “de-classification”.

It is all very odd.

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Stepping back, it would seem Trump has realised that he is in serious legal jeopardy.

If anyone else had been found with such classified documents without authority or lawful excuse then that person would no doubt have been arrested and charged, convicted and imprisoned.

The only difference here is whether the law applies to Trump as it applies to others.

Or is there a legal privilege for Trump?

This is a hard question for the rule of law: is there one law (or lack of law) for him and one for others?

Perhaps following his exercise in magical thinking, Trump would accept criminal liability if enough people think that he is guilty?

Or perhaps not: one suspects he would want to rely on real-world law and procedure, where things are properly written down and recorded.

For that is the thing about those who want to be above the law: they wish to dispense with legal formalities when it suits them, but they certainly want the protection of legal formalities when it protects them.

 

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The new Prime Minister of the United Kingdom – a constitutionalist perspective

6th September 2022

We have today a new Prime Minister.

You may have Very Strong Opinions about them as a person and as a politician.

But let us put those Very Strong Opinions to one side, and let us look at the appointment from a constitutionalist perspective.

Constitutions are about, among other things, parameters of political action – constitutions provide what certain political and other actors can and cannot do, and when.

So the first point to make is that the new Prime Minister only has a short period so as to make any political impression before the next general election.

It is now September 2022 – and the next general election has to be called by December 2024, in just over two years’ time.

The last possible date for an election, once called, is January 2025.

This means that any controversial legislation – especially if it outside the scope of the Conservatives’ 2019 manifesto – is unlikely to get through the House of Lords in time.

And the new Prime Minister may even want to call a general election sooner, which they can do because the Fixed-term Parliaments Act is now repealed.

The second point to make is how weak the new Prime Minister is, despite the governing party’s majority in the House of Commons.

Only 50 of the new Prime Minister’s colleagues supported them on the first vote, out of 358.

The new Prime Minister did not even have a majority support of their parliamentary party at the final round before it went to the party membership vote.

This means that there seems to be little positive support in the Conservative parliamentary party for the new Prime Minister.

Indeed, both the departing Prime Minister and the defeated leadership contender will probably have as much substantial support in the parliamentary party as the new Prime Minister.

The new Prime Minister, in their first appointments, seems to be rewarding their supporters rather than building a party-wide coalition.

As any Prime Minister only has so much autonomous power, the lack of a natural and positive parliamentary majority will be a problem.

The governing party is currently prone to rebellion and revolt, and there is nothing about the appointment of the new Prime Minister and their first cabinet appointments that looks as if this propensity to rebellion and revolt will change.

So, not only is there a looming general election and the practical inability to force contentious measures through the upper chamber, there is the possibility that the new Prime Minister may not even be able to get legislation through the lower chamber.

Within the United Kingdom more widely, the matter of the Northern Irish Protocol is no nearer resolution, and the Scottish government is pressing for a further referendum.

Serious questions about the future of the Union are being posed at a time where the new Prime Minister is not in a strong position.

And all this – all of this – is in addition to the pressing political problems of the cost-of-living crisis and the escalating energy crisis, as well as war in Europe.

Any one of these would be a challenge to a Prime Minister in a strong position.

It is difficult to see how the new Prime Minister, who is in a weak position, is going to be able to address, let alone resolve, these issues.

As this blog has said before: do not underestimate any politician who clambers to the top of what Benjamin Disraeli called the “the greasy pole”.

And this blog will give the new Prime Minister a clean slate.

But.

Given the circumstances of the appointment, the outlook for the new Prime Minister Elizabeth Truss is not looking good.

It is difficult to be optimistic – even if one supports her politically.

Brace, brace, as they say.

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Never underestimate archivists and librarians – as Donald Trump is discovering

31st August 2022

Here is a lovely story about libraries and public policy.

The year is 1983.

The library is the British Library, formerly hosted in the reading room at the British Museum and other sites.

Nicolas Barker, then the library’s head of conservation, and Lord Dainton, then the chair of the British Library Board, had a problem.

Public finances were under pressure, and spending cuts were everywhere.

But.

They needed to work out a way to convince the then Prime Minister Margaret Thatcher about the urgent need for the move of the library to a new purpose-built building.

They decided to keep the issue simple: no lengthy paragraphs in a wordy report, still less charts or tables.

And certainly no waffly arguments.

They instead took her half a dozen books, as well as a novel by one of her favourite authors, which were falling apart, regardless of the care being taken to conserve them.

They placed the books on the table in front of Thatcher.

Silence.

She looked with horror at the state of the books.

Silence.

And then they then said:

‘Mrs Thatcher, we need a new building because all our books will fall to pieces if they stay where they are.’

So horrified was the Prime Minister at the potential fate of the national collection that they got the go-ahead for the new building.

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There are perhaps two morals to this tale (which I have told before here and is recorded in this obituary).

One is that sometimes exhibits are more persuasive than words.

The other is never to underestimate archivists and librarians.

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That there seems a real prospect of legal jeopardy for former President Donald Trump because of a breach of American archival law.

For many watching this is evocative of Al Capone being nailed on tax evasion charges.

Archival offences seem to Trump’s supporters a convenient pretext for legal action, rather than a substantive wrong.

But.

It is a substantive wrong.

For keeping documents and other information safe both for now and for posterity is a central function of the state.

It is how the government (and legislature and judiciary) of one day speaks to those charged with power in the future.

It is how those with power can be confident that certain information does not go to those who would use that information to cause damage and injury.

Like the integrity of the currency and protecting the realm, preservation of certain information is a core duty of those entrusted with power.

And like the damaged books put in Thatcher, visual evidence can be telling:

(Source.)

Of course, few of us know the facts.

It may well be that this legal exercise comes to nothing, and Trump escapes personal legal liability again.

And Trump is entitled to due process, like you and me.

But the wrongful removal of information from a government is not a trivial thing.

For without properly documented information, modern governments could not function.

That is why laws and policies about document management and retention are so important.

And there would be a wonderful irony if laws and policies about ensuring the integrity of written information were used to check the arch-abuser of political language and post-truth politics.

POSTSCRIPT

The historian Dr Adam Chapman has provided us with this similar story – click through to read more:

 

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Cheney and Constitutionalism – why there needs to be conservative constitutionalists as well as liberal constitutionalists

17th August 2022

Now, there’s a title.

As Vice President, Richard Cheney was a supporter of the notion of “executive privilege” – the notion that the executive can do things which it otherwise would not be allowed to do because they have the constitutional privilege to do so.

This is not a view a liberal constitutionalist blog such as this one supports.

But this blogpost is not about Vice President Cheney, but about Representative Elizabeth Cheney.

She is the Republican congresswoman who, notwithstanding party pressures, has taken a lead in condemning the unconstitutional behaviour of President Donald Trump.

And she has now paid for that politically, losing the primary for her party’s nomination in her state.

But, we may not have heard the last of her politically, because today brought this news:

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Constitutionalism is the idea that there are certain fundamental political rules and principles that should be complied with, regardless of any personal or partisan benefit.

This is my own defintion, formed over thirty years of being fascinated with constitutional issues.

(There are other definitions – and, if you have one which is better than mine, then tell me and I shall adopt it instead.)

Cheney and a handful of other Republicans have placed constitutional rules and principles ahead of their own personal and partisan advantages.

Those conservative constitutionalists must be commended for doing so.

Perhaps if Cheney is elected President, she may be as great an advocate of executive privilege as her father, the former Vice President.

(It is easy to be liberal when you do not have executive power.)

But even her father was a constitutionalist, though a conservative one.

And constitutionalism and liberalism are not the same thing.

Conservative constitutionalism exists, and it is crucial.

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That Cheney keeps on going in the face of hostility if not hatred from Trump supporters in her own party shows there is hope for constitutionalism in the United States.

Because for constitutionalism to be viable, there has to be both conservative constitutionalists and liberal constitutionalists.

For if constitutionalism is seen as the preserve of only liberals – an entirely liberal project – then it cannot claim to be a thing that is regardless of partisan advantage.

So while there are still conservative constitutionalists there is the possibility of constitutionalism being reasserted in American politics.

But.

If all the political careers of the surviving non-Trumpite Republicans end in failure, then constitutionalism itself becomes partisan.

And as constitutionalism cannot be partisan, it will – like Douglas Adams’ God –  promptly vanish in a puff of logic.So let us hope the political careers of American conservative constitutionalists have not come to an end.

Else: brace, brace.

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Hillary Clinton’s emails vs Donald Trump’s boxes of files – and the dangers of hyper-partisanship

 

You will remember the issue of Hillary Clinton’s emails.

She used a private email server during her time as Secretary of State.

You may also be one of those who formed the impression that a later statement by the director of the FBI on the issue led to Clinton losing the presidential election to Donald Trump.

You may also recall the chants of “lock her up” by Trump supporters in response to mentions of this email issue.

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Those in executive office, it would seem, should be careful about how they store information – else they could be breaching federal law.

Framed in those general terms, this description of what Clinton did wrong can cover what appears to be what Trump may have done wrong.

For today there was a search at Trump’s Florida residence by the FBI.

And the search was not for emails, but for classified documents, wrongly taken from the Whitehouse.

Hard copy equivalents of the electronic documents of Clinton.

But instead of clapping and cheering, as they did with FBI announcements about Clinton, Trump supporters are against this development.

So here was Trump-supporting Congressman Kevin McCarthy on Clinton’s emails:

And here is the very same politician on the search at Trump’s property:

There is no intellectually honest way that these two stances can be reconciled.

The only explanation for the two stances is hyper-partisanship.

And like many hyper-partisans, he has invoked constitutional arguments of first principle when it suits his cause, but does not apply them the same way against his cause.

It is this hyper-partisanship which is worrying.

Either the FBI should be free to look at Clinton’s emails or Trump’s boxes or they should not.

But to say one is good and the other bad signifies a partisanship that picks and chooses which basic principles should be complied with.

And as this blog has said before, constitutionalism is the notion that there are certain fundamental rules and principles that should govern political behaviour regardless of personal or partisan advantage.

The FBI should be left to get on with their investigation and to follow where the evidence takes them, without fear or favour.

McCarthy is right that there is an intolerable state of weaponised politicisation.

But it is coming from Trump supporters, and it does not bode well.

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The 3Ps, politics and Anglocentrism – or what should they know of Johnsonism and Trumpism who only Johnson and Trump know?

25th July 2022

“And what should they know of England who only England know?” was a question once posed by an imperialist poet.

One of the problems of commentary is insularity: you comment about what is familiar, with nods to things which are – you think – recognisable.

And so it is with law and policy commentary, even when (like this blog) one strives not to be Anglocentric and seeks to pay as much attention to (say) Edinburgh and Dublin and Washington and Brussels as to London and Birmingham.

In particular, one thing commentators seem to do is emphasise endogenous explanations – for example, about what the example of Boris Johnson tells us about the historic weaknesses of the United Kingdom polity and constitution – with a sideways glance at the United States

But Johnson is also a local manifestation of something happening in many countries.

Johnson is not the only one.

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In a fascinating and insightful new book The Revenge of Power, Moisés Naím – a former Venezuela trade minister and editor-in-chief of Foreign Policy posits the 3Ps:

“3P autocrats are political leaders who reach power through a reasonably democratic election and then set out to dismantle the checks on executive power through populism, polarization, and post-truth.”

In his preface he mentions a list of applicable politicians – and although Johnson is discussed in the book, he does not even make this primary list:

“We have in mind here Donald Trump, of course, but also Venezuela’s Hugo Chávez, Hungary’s Viktor Orbán, the Philippines’ Rodrigo Duterte, India’s Narendra Modi, Brazil’s Jair Bolsonaro, Turkey’s Recep Tayyip Erdoğan, El Salvador’s Nayib Bukele, and many others.”

In turn, the 3Ps are defined and illustrated:

Populism may be the most persistently discussed of the three Ps and the most often misunderstood. Because it ends with “-ism,” it is often mistaken for an ideology, a counterpart to socialism and liberalism in the competition for a coherent governing philosophy. It is no such thing. Instead, populism is best understood as a strategy for gaining and wielding power.”

Polarization eliminates the possibility of a middle ground, pushing every single person and organization to take sides.”

“In their current approach to post-truth, leaders go far beyond fibbing and deny the existence of a verifiable independent reality. Post-truth is not chiefly about getting lies accepted as truths but about muddying the waters to the point where it is difficult to discern the difference between truth and falsehood in the first place.”

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Of course, elements of all three are not new.

And we can self-indulge in a parlour game of “well, actually, there is this antecedent”.

Yet, the combination is a current phenomenon, made more potent by technological and political changes, such as the decline of parties and of traditional news media.

And it seems to be something liberals and progressives – and even conservative constitutionalists – are finding difficult to combat, or even comprehend.

And even though the Boris Johnsons and the Donald Trumps may personally leave office one way or another, the frames of mind with which they are associated are likely to linger.

The problem may therefore ultimately not be about the peculiarities of uncodified British constitution or its codified American counterpart.

The 3Ps were (are) going to be a problem whatever our constitutional arrangements.

It is not the fault of us not having a codified constitution any more than it is the fault of the Americans having a codified constitution that privileges illiberal and low-population states.

The problem is not (ultimately) constitutional or legal, but political.

It is about our sense as a polity: about what is acceptable in our political leaders, about what we value as checks and balances, and about how we believe political decisions should be made.

And because it is a political problem then it needs a political solution.

No constitution-mongering, by itself, will offer an easy way out.

The cases for liberalism and progressivism – and indeed constitutionalist conservatism – all need to be made afresh and in new ways.

Even seeking to place fundamental rights beyond the reach of 3Ps politicians will not be enough, as these politicians and their political and media supporters will simply politicise and discredit and trash the rights instruments, rather than respect them.

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It was never going to be inevitable that the world would become more liberal and progressive, and enlightened and tolerant – despite the triumphalism of some liberals and progressives in the heady halcyon (ahem) days of Clinton, Blair, Obama and the EU constitutional treaty.

That said, it is also not inevitable that the 3Ps politicians will win – their triumphalism may, in turn, also be ill-based.

So it is still all to fight for.

But.

In this contest, we should not think these are just local problems for local people.

The 3Ps politicians are part of a worldwide trend, and so we need to be aware of what works and does not work elsewhere – and not just in the United Kingdom and the United States.

Where has the case for constitutionalism – codified or not – been made successfully?

Where have people been made to care that their politicians are lying?

Where have voters and politicians valued checks and balances that may go against their partisan and personal advantages?

For, to adapt the poet:

“And what should they know of Johnsonism and Trumpism who only Johnson and Trump know?”

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My new FT Video: constitutionalism and the reversal of Roe v Wade

12th July 2022

This blog is written from a liberal constitutionalist perspective.

But like “country” and “western”, liberalism and constitutionalism are not the same thing, even though the coupling works well in practice.

Take for example the abortion issue.

From a liberal perspective, the issue is about who makes the decision.

The decision here being whether a woman can have access to a safe abortion or whether she should be forced to continue with an unwanted pregnancy.

The liberal will consider that the decision – at least before late in the pregnancy – should be that of the woman, in consultation with her doctors.

Others, however, will insist that the decision should absolutely not be that of the woman concerned, but should be decided on her behalf by a legislature.

But.

Believing that the decision should be that of the woman concerned does not, in and of itself, tell you how the constitutional and legal system should provide for that right.

And one can be a conservative constitutionalist as well as a liberal constitutionalist, as constitutionalism is about believing there should be rules and principles that provide the parameters of political and legal action.

In the United Kingdom – and now including Northern Ireland – the right to an abortion is not a constitutional right, or it is not usually considered as such.

It is a legal right provided for by statute.

In the United States it was not possible to enact similar legislation that would cover all Americans, not least because of the disproportionate power many conservative but less populous states have in the federal legislature.

So the route taken by those in favour of a right to abortion was to litigate so that the United Supreme Court found that the right to an abortion was a constitutional right.

And the Supreme Court found that there was such a right in 1973.

Then, a couple of weeks or so ago, a differently constituted Supreme Court found there was not such a right.

Over at the Financial Times I have done a video setting out this constitutional journey.

The video is also on YouTube:

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Many of you will have strong opinions about abortion – I certainly do – but the focus of this blog and and any comments below is on how the issue is or should be dealt with as a matter of law.

The United States took a constitutionalist and judicial approach, not least because there was no other United States-wide approach that would work.

But what one Supreme Court can give, another Supreme Court can take away.

And so it was always a precarious basis for such an important right.

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Russia’s flimsy constitution and the USA’s rigid constitution, and the notion that codified constitutions are necessarily a good thing

5th May 2022

From time to time this blog (and my commentary elsewhere) is accused of being against a codified constitution for the United Kingdom.

(A codified constitution is often also known – inexactly – as a ‘written’ constitution, but uncodified constitutions are usually written down, just not in one place.)

This accusation of being against a codified constitution for the United Kingdom is, in my view, unfair and incorrect.

A codified constitution for the United Kingdom may be a good and welcome thing.

Or it could be a horrible and unwelcome thing, entrenching domestic executive power yet further.

It all depends.

This is because codified constitutions can be good things or bad things.

The view of this blog (and my commentary elsewhere) is that a codified constitution of the United Kingdom is not necessarily a good thing.

And it rejects the casual plea ‘and this is why we need a written/codified constitution’ that often follows some political outrage.

A codified constitution is not a liberal panacea.

It is not even necessarily better than our current constitutional arrangements – so the alternative plea of ‘at least it would be a step in the right direction’ is also misconceived.

A codified constitution could be, from a liberal perspective, very much a step in the wrong direction.

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Codified constitutions are relevant to two of the current main international news stories – the Russian invasion of Ukraine and the likely overturning in the United States of Roe v Wade.

As this blog has previously set out, there are few constitutions which on paper are as liberal and wonderful as that of Russia.

And yet the Russian president had unlimited illiberal powers at home and no check on what he orders to be done (or attempted) abroad.

In the United States, the fundamental right of a woman of access to the means of aborting a pregnancy may no longer be a constitutional right, and thereby enforceable in all the states of the union.

This is because its status as a constitutional right rests only on mere case law, and not on the express provisions of the constitution itself.

And that, in turn, is because the constitution of the United States is difficult to amend generally, and it is practically impossible to amend on the issue of abortion – and so the constitutional right depended on litigation rather than on any formal enactment.

Other rights that seemed significant in the eighteenth century are set out in writing and cannot (easily) be removed.

Americans have the right to a well-regulated militia, but not a right to regulated and safe abortions.

But…. but….

…those are different, will come the defiant response of the constitution-mongers.

A codified constitution of the United Kingdom would be just right – not too flimsy, and not too rigid.

Perhaps this ideal codified constitution will be drafted by Goldilocks.

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Again, nothing on this blog should be taken to mean a codified constitution will necessarily be a bad thing.

But one should be critical, and one should not even presume that a codified constitution would tend to be a liberal panacea.

The government – backed by the considerable resources of the government legal service and the treasury panel of barristers – would seek to game any written constitution in the executive’s favour.

And against such a concert, mere wishful thinking will be no match

But…. but….

…this should be different, will come the response of the gamed constitution-mongers.

But.

Be careful what you clamour for.

A liberal constitutional order is not easy to achieve.

And that it may be the current arrangements without codification are more liberal than anything that the government would permit to be put in place as a codified constitution.

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