Why constitutionalism should be stronger than Trumpism, other populism, and even majoritarianism

13th January 2021

President Donald Trump has never won a national vote.

In 2016 he had about three million fewer votes than Hillary Clinton, and in 2020 he had about seven million fewer votes than Joseph Biden.

What he was able to do in 2016, however, was to win a vote sufficient so as to obtain the majority of the electoral college – and, but for the geographic distribution of the votes in 2020, it is feasible he could have won the electoral college in 2020.

Trump, therefore, is not in this way a majoritarian – his democratic legitimacy does not rest on having obtained a majority of the democratic vote.

His democratic legitimacy rests instead on a device – the electoral college – that is provided for under the constitution of the United States.

And what the constitution of the United States giveth, the constitution can taketh away.

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The removal of an elected head of government should never be done lightly or easily.

But in any constitutional system there will always be the means by which they can be removed, other than at an election.

Ideally, of course, if the complaint about a government is essentially about its politics or policies, then it should always be a matter for an election.

That is what elections are for.

But there are circumstances other than a dispute about politics or policy merits where the removal of a government, or of a head of government, is appropriate between elections.

And in the United States, the constitution expressly provides two mechanisms for the displacement of a sitting president.

One is the the twenty-fifth amendment where, for whatever reason, the sitting president is incapable of exercising their role.

The other is the impeachment and then conviction of a president for high crimes and misdemeanours.

And theses two mechanisms are, in the case of President Trump and any other president, just as ‘constitutional’ than the electoral college that enabled Trump to become president in the first place.

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The house of representatives seems certain, at the time of writing, to vote to impeach President Trump in respect of the violent attack on Congress on 6th January 2021.

President Trump is now thereby destined be the quiz answer to the question: which president was impeached twice?

He will also be the president who was the subject of attempts to use both methods of removal – the twenty-fifth amendment and impeachment, – which also must be some sort of record.

As at the typing of this blogpost, it cannot be predicted whether the senate will vote to convict President Trump.

(Of course, whatever happens, the outcome of that vote will then seem as having been inevitable all along.)

But in one limited way, it does not matter whether there is a conviction – the very fact there will be an impeachment is a reminder that, regardless of Trump’s ability to mobilise millions to vote or to incite hundreds (if not thousands) into political violence, there is something stronger than his populism.

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The priority for constitutionalism should be true even if there was not such a thing as an electoral college and if President Trump had actually won a majority of the popular vote.

For just as constitutionalism should be stronger than populism, it also should be stronger than majoritarianism.

Being able to obtain a vote of [x] + 1 does not, and should not, confer immunity from removal from office whatever the winning candidate or party seeks to do between elections.

Such a majority vote would confer political legitimacy – but that is what it is: political.

Such political legitimacy does not translate to absolute protection against the consequences of wrongs that go further than political or policy disputes.

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Given the events of 6th January 2021, and the role of President Trump in those events, it is difficult to see why he should not be impeached and convicted.

This is the sort of situation that the power of impeachment is there for.

And there are signals (if nothing more) that a sufficient number of Republican senators may be in favour of conviction.

But even if such a vote for conviction does not come to pass, constitutionalism has not gone away.

The senate may or may not vote to convict.

The fact there is such a vote means that constitutionalism – still – is stronger than Trump and his nationalist authoritarian populism.

The challenge is now to keep it this way – for although constitutionalism has not gone away, neither will Trumpism.

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The violent events of 6th January 2021 should be a turning-point, but what if history fails to turn?

12th January 2021

 

Writing of the effects (and lack of effects) of the 1848 ‘revolution’ in Germany, the historian A. J. P. Taylor once wrote:

‘German history reached its turning-point and failed to turn.’

Identifying a moment in time as a potential turning-point is one thing, but it is quite another for it to actually be a turning-point.

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Take, for example, seven days before the 2016 referendum when the British member of parliament Jo Cox was murdered by a person shouting ‘Britain First’.

That incident which took place at the most unpleasant moment of the referendum campaign – the ‘swamped’ poster was about the same time – felt as if it should have been a turning-point. 

That the passions and indeed frenzy unleashed by the referendum campaign were out of control, that things had gone too far.

But it was not a turning-point – the referendum campaign quickly resumed – and the murder had no obvious impact.

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The events in the United States of 6th January 2021 also seem to be a potential turning-point.

In what this blog and others aver was an attempted coup, and what was an insurrection on any view, there was a violent attempt to disrupt an essential constitutional step in the peaceful transfer of power, at the behest of (or at least in the interests of) a defeated politician.

Five people died.

There is currently an attempt, in the last few days of the current presidency to impeach that defeated candidate, President Donald Trump.

At the moment it looks unlikely that the impeachment will result in a conviction in the Senate and that Trump will be removed from office before 20th January 2021, when the presidential term ends by automatic operation of law.

One view is that the events of 6th January 2021 will shock Republican politicians and political supporters of Trump.

That the passions and indeed frenzy unleashed by his attempt to discredit the election result and to hold on to power were out of control, that things had gone too far.

Surely something will be done in response to what happened, in what Der Spiegel regards as a putsch (with Trump as Putschistenführer).

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But even if something decisive happens in respect of Trump personally – either that he is impeached or discredited as an individual – this does not directly address the ongoing challenge of Trumpism.

Even after everything in the last four years, 74 million Americans still voted for him to be president.

Indeed, even after the visible manifestation of Trumpism on 6th January 2021, there still seems to be substantial political support for this nationalist authoritarian populism. 

It may not be going away.

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Contemporaries are often not in a good position to tell whether some dramatic political event is either the end of something, or the start of something, or just an illustration of something.

The quotes in this tweet should be read carefully and in full.

In 1923 many thought that the attempted putsch of the war hero Ludendorff (then a more famous figure than the nationalist authoritarian populist leader who accompanied and then succeeded him) could be dismissed as some delayed after-effect of the great war.

And indeed Ludendorff was to a large extent personally discredited, but the cause for what he stood for certainly was not extinguished, and it was to take power within a decade.

An attempted coup, an insurrection, a putsch – all can be as much a start of something than an end of something.

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It is easy to warn ‘we should not be complacent’.

(After all, nobody ever says ‘let us be complacent’.)

But liberals and progressives should be careful not to assume that the dramatic violence of 6th January 2021 will convert into some ongoing impediment to Trumpism – even if it converts into an impediment to Trump himself.

Trumpism should be taken just as seriously as a threat to liberal democracy and constitutionalism after 6th January 2021 than before.

The attempted coup, the insurrection, the putsch has not, at a stroke, discredited Trumpism – even if Trump (like Ludendorff) may no longer be the leader of the movement.

All because a tragic event should bring people to their senses, it just as often does not do so.

Sometimes things do meet what should be their turning-point, but things fail to turn.

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Can a presidential pardon be revoked?

11th January 2021

As we enter the last ten days of this presidential term one of the matters being widely discussed is the extent and nature of presidential pardons generally, and the possibility of a ‘self-pardon’ in particular. 

This blog has already looked at the general issue – and on the self-pardon issue in particular, it seems to me to be a logical and legal absurdity.

But this post is about a related issue, which has not yet featured prominently in the debate about pardons: regardless of whether any power to pardon, can a pardon be revoked?

Would it be open to an incoming president to revoke the pardons of President Trump, including any (purported) self-pardon?

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From first principles, and from a United Kingdom perspective, such a revocation would seem possible.

The power to pardon is, in the United Kingdom, part of the royal prerogative.

And just as no parliament can bind another, it would appear no sovereign can do so either.

The crown can make – and unmake – any treaty whatsoever.

The crown can bestow honours, which in turn can be ‘cancelled and annulled’ by the crown.

And so if these exercises of the royal prerogative are analogous, then it would appear that the sovereign could rescind a pardon – for example if it were wrongly made.

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Turning to the United States, there are two examples of revoked presidential pardons.

In 1869, we are told by the Congressional Research Service, ‘after outgoing President Andrew Johnson issued but did not deliver a pardon, incoming President Ulysses S. Grant revoked the pardon, and a federal court upheld the revocation’.

The case report is here, where you will see that the judge stated in passing:

‘The law undoubtedly is, that when a pardon is complete, there is no power to revoke it, any more than there is power to revoke any other completed act.’

More recently, in 2008 President George W. Bush revoked a pardon he had himself granted, because of an outcry.

The New York Times then reported ‘when Mr. Bush granted Isaac Toussie, 37, a pardon earlier this week, the president and his advisers were unaware that the elder Mr. Toussie had recently donated $30,800 to Republicans. Mr. Bush took the extraordinary step of rescinding the pardon on Wednesday after reports about the political contributions.’

Again, the pardon had not been delivered.

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In both of these precedents the revocation was possible because it had not been completed – the procedural equivalent of dashing to the post room to intercept a letter before it is actually sent out.

Neither of these precedents therefore are directly on the point of whether a pardon, once completed, can be revoked.

The opinion of the judge in 1869 is not binding for, among other things, that was not the issue which the court was being asked to determine.

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So how would a modern court approach the issue?

In most circumstances, the effect of a pardon would be immediate: a person would be released from their sentence and so on.

And once that person has been relieved from their punishment, then any revocation would raise practical and other issues as to what would happen to the pardoned person.

One can see why it would be unfair that such a pardon was revoked, just as no person should not be punished twice for the same offence.

But what about a (blanket) pardon that is intended to pre-empt any possible prosecution?

Procedurally, the person who (purportedly) received the pardon would (presumably) raise the pardon as a bar to any proceedings.

The court would then (again presumably) examine the (purported) pardon (as in 1869), and if the pardon was valid then there would be would be a bar on the prosecution.

It would be – almost literally – a ‘get out of jail free’ card, which the person would raise in front of a judge.

(Of course, if it were known that a pardon had been given then a prosecution would normally not be brought in the first place – but, if it were brought, this is procedurally how a pardon would act as a bar on any prosecution.)

So, now imagine two fascinating possibilities.

First, imagine a court not accepting such a presented pardon at face value – and applying anxious scrutiny whether such a pardon (even if correct in form) had been within the powers of the president.

And second, imagine a court presented with two formal instruments – one purporting to grant a pardon, and another purporting to rescind it (like the cancellation and annulment of an honour, which reverses an otherwise completed act).

The first of these (delicious) legal puzzles would not be a revocation, of course, but an inquiry as to the legality of an instrument.

The second possibility, however, would require a court to review the possibility of a revocation of a pardon.

We would then see whether the 1869 dictum was a correct statement of the law.

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The straight answer to the question at the head of the post is, as always with interesting legal questions, ‘we do not know’.

An approach from first principles points (at least for me) in one direction, but the precedent of 1869 (although it is not binding) points firmly in the other direction.

But given the lack of binding authority, it cannot be assumed casually that if a pardon – or self-pardon – is granted by President Trump that it is absolutely beyond the reach of revocation.

We may still get more constitutional excitement from the Trump presidency.

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Why the campaign to ‘rejoin’ the European Union is misconceived – the campaign must make a positive and sustainable case for membership, regardless of Brexit and the past

10th January 2021

For many who were ‘Remainers’ the obvious next step is to become ‘Rejoiners’ with the object of ‘reversing Brexit’.

And in pursuing this object they will understandably point to the many misfortunes and problems that have been – and will be – caused by Brexit.

The hope, if not expectation, seems to be that the sheer accumulation of adverse evidence will mean that a sufficient people will see ‘what we have lost’ and this will lead to political pressure for the United Kingdom to quickly rejoin the European Union.

This approach may work – one lesson from the last five years is just how quickly politics can change, and in any direction.

But.

For the following three reasons, this blog submits that such an approach is misconceived and avers that a different approach should be adopted by those who want the United Kingdom to be a successful applicant for membership of the European Union.

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The first reason is that the emphasis on the ‘re-‘ in ‘rejoining’ – especially if that is based on relying on the adverse consequences of departure – is not a positive case for membership.

There needs to be more than the simple application of the pleasure-pain principle.

One feature of the United Kingdom’s membership of the European Union was that since at least the completion of the single market in 1992 there was never a positive case made for membership in frontline politics.

Instead, the two biggest political parties competed with each other as to which was the one that secured the more opt-outs, whether it be the Euro, the social chapter, free movement of peoples, justice and home affairs, or so on.

The case, if any, for the United Kingdom’s membership of the European Union was that it was ‘less bad’ than any alternative.

This scepticism and often outright hostility was also a feature of much of the news reporting of the same period – and such was the lack of popular understanding of the role and nature of the European Union that it was easily made to blame for things for which it was not responsible.

And after twenty-five or so years of such negativity, it was perhaps more surprising that the 2016 referendum was so close than that the remain side lost.

It was not so much that the leave side won the 2016 referendum that the remain side lost.

This mistake should not be repeated.

The case for European Union should be a positive one – and that means that it should be a case based on the advantages that membership of the European Union will have for the United Kingdom.

What would be the benefits of membership of the European Union, which could not be attained in any other way?

For, as this blog was previously contended, those in favour of membership have a challenge.

Can you, for example, make out the case for the United Kingdom joining the European Union without reference to the fact that the United Kingdom was a member?

If a compelling case cannot be made for the United Kingdom in the here-and-now to become a member of the European Union then it is difficult, if not impossible. to see how sufficient political support can be achieved for a viable application for membership.

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The second reason is the United Kingdom is highly unlikely be able to ‘rejoin’ quickly.

The notion that somehow the European Union will gladly accept a United Kingdom quickly bouncing back and pretending nothing had changed is a fantasy.

Indeed, it is just a new variant form of British (or English) exceptionalism.

The new trade and cooperation agreement is structured for the medium to longer-term.

As I set out in this new Financial Times video, the agreement is a ‘broad…framework’ for discrete supplementary agreements over time, with any more significant shifts (either in the the direction of closeness or otherwise) being on a five-year review cycle.

 

And this accords with the five-year cycle on which the European Union conducts its own business.

We can no longer snap our fingers and demand immediate attention, loudly and in English.

The United Kingdom is now on the outside, looking in.

And as this blog has previously averred, the European Union will understandably want to take time to see if the internal politics of the United Kingdom have settled down in favour of membership of the European Union.

The European Union will not want to let the United Kingdom back in only to have to devote time and effort in dealing with another Brexit, like some geo-political Groundhog Day.

The European Union will also want to see what happens to the United Kingdom itself over the next few years: Irish unification? Scottish (or even Welsh) independence?

What will be the situation of the European Union and of the world in 2026? 2031? 

Therefore there not only needs to be a positive case for United Kingdom membership of the European Union, it has to be a sustainable case too.

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The third reason is that an emphasis on ‘rejoin’ and ‘reversing Brexit’ carries a real risk of campaigners eternally refighting the 2016 referendum.

Like some historical re-enactment society, but for the battle of Brexit rather than the battle of Naseby.

Of course, remainers are right to have grievances about the circumstances of the referendum and the conduct of the campaign(s) for leave.

Remainers also are right to complain about the process (or lack of process) that followed the referendum and which has resulted in the United Kingdom ceasing first to be a member of the European Union and then having the protection of the transition arrangements.

Nothing in this post should be taken to mean that that the politicians who have made serious misjudgments about law and policy should not be held to account – indeed that is one purpose of this blog.

But pointing out problems and failings, either now or back in 2016, is not going to lead to the United Kingdom becoming (again) a member of the European Union.

This is not only because it is difficult to get a sufficient number of voters engaged, and that government supporters and Brexiters are so deft at evasion and misdirection.

It is because there is a fundamental disconnect between problem and solution.

Whether the United Kingdom becomes (again) a member of the European Union in 2026 – or whenever – will not be a logical consequence of redressing the wrongs and of 2016 or even those emerging in 2021.

Membership of the European Union may be a prize, but it will not be a consolation prize.

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The task ahead for those in favour of the United Kingdom (again) becoming a member of the European Union is immense.

A positive case has to be made over time so that the European Union will seriously consider a fresh application.

But that is not an impossible task.

And at least, unlike the supposedly ‘pro-European’ politicians of the last thirty or forty years, this will be a positive case.

One problem with the politics of the United Kingdom in recent decades is that the positive case for membership of the European Union was rarely made.

Now is the opportunity for that to be put right.

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Impeachment exists for a reason – the arguments for and against the second impeachment of Donald Trump

9th January 2021

‘Impeachment’ and ‘indictment’ are sister words, sharing the suffix ‘-ment’, and they describe two ways by which a person can be tried and then either convicted or acquitted.

One practical difference (at least in modern times) between the two is that impeachment is usually a political process, while a trial on indictment is a matter of criminal law.

And one effect of this distinction is that if a sitting president of the United States is immune from prosecution in the criminal courts, there is always the alternative route of impeachment.

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There are only eleven days before this presidential term ends, by automatic operation of law, on 20th January 2021.

The electoral college vote has been certified by congress and so there is no constitutional impediment (as far as this English lawyer is aware) to Joseph Biden becoming president on that day.

The question is whether Donald Trump should continue to be president in the meantime, given what he did and what happened on 6th January 2021.

As eleven days is such a short period, there is merit in the view that we should just wait it out – especially as he no longer has access to his Twitter platform (and the implications of such a ban was discussed on this blog yesterday) and the speaker of the house of representatives has has assurances on the president’s access to the nuclear codes.

And there is something also to be said that it would still be wrong, even now, to in effect override the result of the 2016 election – there was a democratic process and Trump as president was the result at the end of it.

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But.

Impeachment exists in the United States constitution for a reason.

And if a president inciting a mob to invade Congress so as to disrupt the certification of the electoral college vote (in what this blog avers was an attempted coup) does not fulfil the requirement of a high crime and misdemeanour, then it is difficult to imagine what else would do so.

Even with only eleven days to go, such an extraordinary event should not go unmarked and shrugged-off.

Impeachment and conviction can also disqualify Trump from holding office again.

(And so, in respect of the presidency, such disqualification would place Trump in the same position as if he had not been born in the United States.)

On this basis there is a strong – if not compelling – case that Trump should be impeached and convicted – both in terms of what has happened and of the future.

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Yet.

You do not sustainably solve a problem caused by hyper-partisanship with more partisanship.

And so any impeachment and conviction should ideally be on a genuinely non-partisan basis – and not just the Democratic bloc with a few Republicans.

Here the United States constitution is helpful – as a conviction by the senate has to be with the ‘concurrence of two thirds of the members present’.

Therefore there would have to be a substantial number of Republican senators in favour – but even if there were sixteen or so such Republican senators, it would still savour of partisanship, unless the Republican congressional leadership were also in favour of conviction.

This is not to say that there should not be an impeachment and conviction if enough Republican senators are in favour – sometimes you just have to do the right thing anyway – but a warning that such an exercise will not be the once-and-for-all end of the problem of Trump and Trumpism.

But, then again, there may not be any solution to that problem.

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There is another way that could be employed to displace Trump.

The twenty-fifth amendment provides an elaborate mechanism by which the vice president and members of the cabinet can declare that the president is unable to discharge the powers and duties of the office.

In these circumstances the vice president will become the acting president.

This approach has the attraction of being inherently non-partisan – as those making the decision are Republican politicians – and also the attraction of pragmatism – as it deftly yanks Trump away from exercising the powers of the president.

The problem, however, is that it is not – at least not directly – a mark against the encouragement of the attempted coup, and nor does it disqualify him from future office.

(Or Trump could – like Nixon – just resign in an attempt to pre-empt any of the above – but it is hard to imagine Trump bringing himself to sign that piece of paper.)

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Of course, whatever does happen will then look as if it were inevitable all along.

But whether or not Trump is impeached and convicted, there will still be two truths.

First, impeachment is there for a reason.

And second, what the president did on 6th January is such a reason.

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Trump’s social media ban in perspective – the unpalatable difficulties of regulating political and media activity in the internet age

8th January 2021

Once upon a time, and not so long ago, mass political parties and national media organisations were themselves novelties.

Both were responses to the emergence of popular democracy and widespread literacy in the late 1800s.

Political parties and media organisations (for example, ‘Fleet Street’) were ways by which the relationships were mediated between the elite and the governed.

The means of political organisation and of publication – and, later, of broadcasting –  were in the hands of the few.

Indeed, until the 1990s, it was difficult (if not impossible) for any person to publish or broadcast to the world, without going through the ‘gatekeepers’ of a national newspaper, or a publishing house, or a national broadcaster.

Similarly, it would be difficult (if not impossible) for any person or group of people to obtain significant political influence – at least in the United Kingdom as a whole – without going through a national political party.

So – although both politics and the media on a national level had opened up to the population as whole – the ultimate means of political and media control were still quite centralised.

Top-bottom, command-and-control.

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And when power is concentrated it is easier to regulate.

So, just as modern political parties and media organisations emerged at the end of the 1800s, so did the regulation both of political parties and of the media.

Back in October 2019 I set out at Prospect why the electoral law of the United Kingdom that was developed in different circumstances was no longer fit for purpose.

Similar points can be made about media law: for example, there is no real point tightly regulating certain news titles or national broadcasters when the same content can be circulated – often even more widely – on social media platforms by those outside such creaking regulatory regimes.

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If traditional political parties and media organisations did not already exist as hangovers from the time before modern technology and communications, they probably would not now be invented, at least in a recognisable form.

And that therefore must follow for how political and media activities are regulated.

Just as traditional political parties and media organisations were once novel responses to new social and economic conditions, we need to think afresh about the nature of political and media power and about the extent, if at all, it can be regulated.

For now anyone with an internet connection and access to certain platforms can publish and broadcast to the world, or can seek and obtain significant political influence or power.

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To ‘regulate’ a thing is to make it possible that the thing would have a different outcome, but for the regulation.

If a regulation can have no effect, then the thing supposedly being regulated carries on regardless, and the regulation is a polite fiction. 

Futility is the enemy of sound regulation.

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And now we come to President Donald Trump and his recent temporary ban from Twitter and his indefinite ban from Facebook.

Neither Twitter nor Facebook are traditional media organisations – indeed both were formed within the lifetime of anyone reading this post.

But they are not only media organisations – they have also taken on some of the functions of traditional political parties – as the practical means of political organisation, mobilisation and sharing of information.

This is not to say that the social media platforms are beyond the law – they are (in theory) subject to terms and conditions, laws on equality and non-discrimination, laws on data protection and intellectual property, and so on.

It may be that these general laws are not enforced, or perhaps not enforceable – but there are laws which apply.

The issue is that those laws are general laws and not specific legal regimes covering media and political activity.

And so what we have are platforms of immense media and political power – and without any specific media and political regulation.

They are, in effect, private organisations – and (subject to general laws) are entitled to suspend and terminate, or to enable, the accounts of any politician.

They can even suspend the social media account of (arguably) the most powerful politician in the world.

And they have done so.

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For many, the way to deal with the political and media power of social media platforms is easy.

Regulate!

Something must be done, and so something will be done, and that something that will be done will be to ‘Regulate!’

But asserting that a thing should be regulated is not the same as it being capable of regulation.

One may want the tides of the sea or the weather to be different, but it does not follow that they can be made any different.

So it may be that although social media platforms – huge private corporations – have immense political and media power, it does not follow that they can be easily regulated, or regulated in any meaningful way at all.

And even if regulation was possible, it is almost certain that it cannot be on the same basis of the top-down, command-and-control regulation of political and media activity that we have inherited from previous times.

For example, social media platforms have millions of publishers and broadcasters, not just a handful.

There are no elaborate steps before publication and broadcast as with a Fleet Street title or established book publisher.

They are no limits on how much political propaganda can be published and to whom it can be circulated.

If any of this can be ‘regulated’ then it almost certainty will not be by tweaking old pre-internet regulatory models – and this is because the things being regulated are of a fundamentally different nature.

And – and this will be very hard to accept for those who believe every real-world problem has a neat legal solution – it may be that social media activity can no more be regulated meaningfully than conversations in the street or in the town square.

That the age of specific regulations for media and political activity are over, and all we are now left with are general laws.

Many will not be comfortable with this – and will insist that ‘something must be done’.

Yet futility is the enemy of sound regulation.

*

Perhaps something should have been done in respect of President Donald Trump’s unpleasant, dishonest, reckless and dangerous use of his social media account before this week.

And what has now been done is too little, too late.

Others would say that silencing an elected politician’s means of communication should not be at the fiat of a private social media platform.

Views will differ.

But the wider questions are:

If a thing is to be done about the use and abuse of a social media platform by those with political and media power, who should have the power to do this?

And on what basis should they make that decision? 

And to whom (if anyone) should that decision-maker be accountable?

And if the social media platforms themselves are left to regulate what political and media activity can take place and what content we can read and watch, who (if anyone) can regulate them?

*

‘Quis custodiet ipsos custodes?‘ – who watches the watchmen? – is one of the oldest and most difficult questions in the history of organised societies, and it is a question that sometimes has no answer.

And now our generation gets to ask and to try and answer this question.

*

POSTSCRIPT

Later on the day of this post, Trump’s Twitter account was permanently suspended.

https://twitter.com/TwitterSafety/status/1347684877634838528

 

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The contest between violent populism and constitutionalism – and why it was not inevitable that yesterday’s attempted coup in the United States would fail

7th January 2021

Yesterday we watched, in real-time, an attempted coup in the United States.

Was it an attempted coup?

Some are already fussing about the ‘coup’ word – that it was merely a security violation, a mere matter of public order.

That view is not correct, for three reasons.

It was an attempted coup.

*

First, an essential constitutional stage for a peaceful transfer of power was disrupted.

The constitutional stage – usually a formality – was the certification of the electoral college vote by congress.

It is this certification that would make the inauguration of a new president happen on 20 January 2021 by automatic operation of law.

No certification, no certainty of inauguration of a new president.

The disruption was the object and the effect of the disorder.

And until and unless the electoral college vote is certified then the 20 January inauguration is uncertain.

(The resumed Congress is still considering the electoral college votes as I type.)

*

Second, the disruption was at the behest of the losing candidate – or, if you nod-along with plausible deniability, it was at least done so as to ensure he stayed in office.

It was disruption with the purpose of keeping a losing candidate in office.

And that candidate then praised these ‘special’ people for what they did.

Indeed, for the candidate’s daughter, these disruptors were ‘patriots’.

*

And third, the disruption was forceful.

The mob forced their way in, and there are reports of fatalities and injuries.

This was not a peaceful protest or an exercise in civil disobedience.

*

So a group (a) used force to (b) disrupt an essential constitutional process (c) at the behest of (or in the interests of) a politician – and if that disruption had succeeded, the inauguration of a new president would have been rendered uncertain.

That was an attempt at a coup.

*

One significant detail in what happened yesterday was that the order to deploy the national guard came from the vice president, not the president.

As Sherlock Holmes would have said, this was a ‘curious incident‘.

This means that, left to the president, there would have been insufficient coercive power to disperse the mob.

As any A-level history student knows – or should know – for a rebellion to succeed requires not only rebels, but also a weakness in the regime that is being rebelled against.

Usually the weaknesses of the regime are not deliberate.

But here the president seems to have wanted to maximise the disruptive power of the mob.

*

Another significant detail is how light-touch the policing was generally.

As a liberal, I am all in favour in light-touch policing.

The priority in such a situation should be public safety rather than the use of brutal – or lethal – force.

Yet the contrast with the policing of, say, the Black Lives Matter protest is stark – and telling.

If those who rioted yesterday had different colour skins then they would have been no doubt arrested or shot by police officers dressed up like Robocops.

Instead, there were hardly any arrests, and the rioters were just allowed to go home.

The photographs of some of the rioters – posing here and there in the Capitol – would be unthinkable if they were not white.

What happened yesterday was an expression of white privilege.

*

This attempted coup is what you get when politicians play with the monster of populist nationalist authoritarianism.

So often in history, politicians believe they can tame this beast, and that the beast will serve them.

And those politicians usually end up being devoured by the creature.

*

Today, it look like the attempt at a coup failed, and that the new president will be inaugurated on 20th January 2021.

Yesterday was a contest between constitutionalism and violent populism.

It was not inevitable that constitutionalism would always win this contest.

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How the Trump experience both weakens and strengthens the case for a ‘written constitution’

6th January 2021

Imagine – just for the sake of this post – that the United States did not have a written constitution.

And now imagine that there had been a president like Donald Trump in office over the last four years who had pretty much done what Trump had done – every outrage, every attack on a minority, every sacking and every appointment, every manipulative or threatening telephone call, every high crime and misdemeanour, and so on.

There would be pundits who, when presented with such a catalogue of wrongful conduct, would assert confidently: ‘you see, this shows the need for a written constitution!’

But the thing is: there was a written constitution, and all these bad things happened anyway.

*

Back in November 2020 – and more in hope than expectation – my column at Prospect magazine was entitled ‘Why we need to stop talking about a written constitution’.

My three main contentions were as follows.

First, a written constitution (that is, for the purpose of discussion, a codified constitution) is inherently neither a good nor a bad thing – and, indeed, such a constitution can either entrench or mask illiberalism or tyranny.

Accordingly, the knee-jerk demand for a written constitution at every constitutional trespass is misconceived, as such a constitution is not a panacea.

Second, in England (and, as presently constituted, the United Kingdom) there is no plausible path to entrenching any constitutional code, regardless of any theoretical attractions.

And third, the demands for a written constitution whenever there is a constitutional trespass are too often a substitute for attempting any actual constitutional improvement.

All a pundit will announce is ‘you see, this shows the need for a written constitution!’ and nothing else will be said.

And this insistence on an absolute ideal in any conversation about the constitution, instead of any practical suggestions, was and is (in my view) part of the problem.

*

But.

Regardless of the (provocative) title of that column, there are times to revisit the debate about the merits and otherwise of a codified constitution.

This morning, the news reports from the United States are that the Democrats may have won both Georgia senate seats – and, if so, that would mean the Republicans will lose control of the senate.

Today the United States congress will meet and it is expected that the electoral college vote will be certified, meaning Donald Trump has lost and Joseph Biden has won.

The Trump presidency will thereby end, and the Biden presidency will begin, on 20 January 2021 by automatic operation of law.

These are welcome political developments for anyone opposed to the nasty authoritarian nationalist populism of Trump and his Republican supporters.

They have lost.

So surely: this shows the merits of a written constitution?

*

Tony Benn famously posited the five questions of any democracy:

‘What power have you got?’

‘Where did you get it from?’

‘In whose interests do you use it?’

‘To whom are you accountable?’

‘How do we get rid of you?’

Of these five questions, the one which (in my view) has the most power is the last one: ‘How do we get rid of you?’

And applying this question to the Trump experience, the answer is stark and indeed unavoidable.

Donald Trump has been got rid of because of the provisions of the constitution of the United States.

As the events since his election defeat have shown, there is nothing he would not resort to doing so as to keep office.

In an extraordinary and significant intervention, all living former United States defense secretaries wrote in the Washington Post warned against the armed services being used to affect the result of elections.

The same newspaper also released a similarly extraordinary and significant telephone conversation where Donald Trump was placing illegitimate pressure on the Georgia secretary of state to overturn an election result.

The grim reality is that if Donald Trump could find a way to stay in office he would use it.

And if this grim reality is accepted, then it must also be conceded that the only reason he has not stayed in office is because there was something more powerful in his way.

And that thing which is more powerful is the (codified) constitution of the United States.

*

Being, on one hand, critical of constitutional trespasses and abuses and, on the other hand, sceptical of the claims made for codified constitutions, has the merits of being an independent and (I hope) intellectually consistent point of view – even if it appears not to have the benefit of also being a popular one.

The Trump experience does not show (at least to me) the merits of a written constitution – every single bad thing that has happened over the last four years has happened despite there being a written constitution in place.

Every single one.

And this evidences, if not proves, that a written constitution is not a panacea – and those in favour of codification should stop pretending otherwise.

But.

Taking the last of Tony Benn’s questions seriously, it also has to be admitted that codification, in certain extreme situations, can help in getting rid of those in power who seek to abuse power.

(Of course, the tyrant can seek to amend such a constitutional provision – but at least it provides an additional high hurdle.)

The outstanding constitutional question, however is not about how Donald Trump was finally removed from office, but how he was allowed to get away with so many wrongs in the meantime?

And that is a far more difficult question for supporters of codification to answer.

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Another national lockdown – but what is needed more than laws and their enforcement is credibility, sound policy, and for voters to care that ministers now get it right

5th January 2021

Another lockdown in England and the other constituent nations of the United Kingdom.

Another dollop of regulations containing restrictions backed by criminal sanctions, and another dollop of governmental guidance and ministerial exhortations.

This is the third national lockdown in England, and the sound of the official starting whistle is now familiar.

Will it work?

And if not, why not?

*

If the lockdown is to work, it will not be by law alone.

As this blog has previously averred, law is not magic, and regulations are not spells.

It does not matter how solemn the law-making ceremony is, and how solemnly the laws are then pronounced. 

To have effect any laws need to be clear, comprehensible, and accessible.

And this has been the fault now, for over a year, with the coronavirus regulations – they are difficult to find, at least in their up-to-date and consolidated form, and impossible for a non-lawyer to follow.

Indeed, it is rumoured that there is only one person – Adam Wagner, a barrister in London – who has read and understood all the legal instruments enacted over the last year in England.

(I happen to be an experienced former government lawyer, trained in drafting statutory instruments, and with a speciality in public law and an understanding of emergency legislation – and I gave up trying to keep on top of the ever-changing increasingly complicated lump of coronavirus legislation last Autumn.)

And if the laws are not clear, comprehensible, and accessible, then – regardless of any other factor – law-making is a futile exercise.

More than mere law is needed.

*

The second thing that is needed is enforcement.

Criminal laws that are not enforced are official fictions.

They are nothing more than the sort of item you get on those lists you see from time to time, of ridiculous laws from yesteryear that are still nominally in force but ignored.

And for criminal laws to be enforced, there needs to be be resources and an understanding of the law by those entrusted to enforce the law.

There also needs to be a working criminal justice system.

And there is little evidence of there being resources in place for laws to be enforced either by by police or by the courts.

Without credible enforcement, it does not matter if you keep increasing the supposed penalties to incredible amounts – like some Dr Evil boasting of a ransom of one million dollars. 

https://www.youtube.com/watch?v=M63C14437rQ

 

But more than enforcement is needed.

With a challenge of the sheer scale of a pandemic, only a totalitarian state could perhaps rely on laws and enforcement alone

*

For the lockdown to work in a modern non-totalitarian society, there needs to be consent.

In essence: laws and sanctions should only have any effect at the margins, because the mass of the people will do the ‘right thing’ anyway.

And this engages the normative issues of legitimacy, accountability, fairness, and credibility.

There cannot be one law for the many, and another for those who go on day trips to Barnard Castle.

There cannot be one law on a Monday, allowing children to go back to school after the Christmas vacation, and then suddenly another law on the Tuesday.

There cannot be a demand for schools to be closed, just days after the government was – literally – threatening a council with a High Court mandatory injunction so as to keep schools open.

There cannot be many things – that is if a government genuinely wants to be taken seriously in imposing a lockdown.

*

But even laws and sanctions, resources and enforcement, and consent and credibility, are not enough if the underlying policy is not sound – or seen to be sound.

And this is also a challenge for this government.

The fundamental mistake with government policy on coronavirus, as with Brexit, is that it has approached something complex as if it were quick and easy, and ministers have kept preferring crowd-pleasing gestures to dealing with the problems that they put-off.

Most of the problems of Brexit policy, and many of the problems in coronavirus policy, were foreseeable and foreseen.

Ministers were told at the time.

But ministers shrugged, and made the mistakes anyway.

Unless there is sound policy in place, blowing the official whistle for another lockdown – with all the paraphernalia of laws and guidance, and ministerial broadcasts – will not work, and cannot work.

Ministers need to get policy right – and then other benefits will follow.

This is the rub – ministers keep shrugging and crowd-pleasing and getting policy wrong, because they know they can get away with it.

In other words: ministers know that a sufficient number of voters do not care enough whether politicians are candid and competent on coronavirus, as with other things.

And so until a sufficient number of voters do care that politicians are candid and competent, we are likely to keep on hearing the whistle sound of bad policy-making and implementation, and for as long as the pandemic persists.

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The real origin of the European Union ‘supranationalist’ state – and why it still matters

4th January 2021

There is a view held by many in the United Kingdom that the European Union – and its predecessors – was not always a ‘supranational’ organisation.

That it was not always an entity which routinely transcended national boundaries.

The view is that it was once a mere innocent trading association and an international organisation – and that it was only after the United Kingdom joined in 1973 that it corrupted into a supranational organisation, which took rule-making and decision-making out of the hands of member states.

*

Some will know this is not true and will point, say, to the Treaty of Rome of 1957, which established the European Economic Community, with its express determination that the treaty would lay the “foundations of an ever closer union among the peoples of Europe”.

Others will point to the 1960s caselaw of the European Court of Justice, such as the Costa v ENEL judgment of 1964 that made it as plain as a pikestaff (the lawyers’ equivalent of ‘absolutely clear’) that the domestic law of a member state was subordinate to the provisions of both the Treaty of Rome and the legal instruments made thereunder.

The United Kingdom thereby knew exactly what it was joining in 1973, and only a fool or knave could (and did) pretend otherwise.

*

Yet the supranational essence of what the United Kingdom joined in 1973 was older than the Costa case of 1964, and was even older than the Treaty of Rome of 1957.

Here it is important that the United Kingdom did not just join the European Economic Community in 1973 but also another community, the deceptively unglamorous-sounding, and older, European Coal and Steel Community (ECSC) of 1952.

For some, the historical fact that the United Kingdom joined more than one community in 1973 is nothing more than an answer to a quiz question, or the reason why the European Communities Act 1973 employs the plural form of community.

But it was a lot more significant than that.

*

To understand why, we have to go back to the years after the second world war and the problem of what should be done about Germany – in particular, the industrial areas of Rhineland and Saarland.

In 1944 the plan was to eliminate much of this industrial capacity; and in 1946 another plan was to give France control.

But by the late 1940s neither of these strident approaches seemed sustainable, especially in view of the need to not de-stabilise (what was then) West Germany, and so another approach was needed.

In 1950, a suggestion was made that there be a ‘high authority’ be put in place, overseeing French and German coal and steel production.

And by 1951 – with the Treaty of Paris – this idea had developed into an array of supervisory institutions – not only a high authority, but also an assembly, a council of ministers and – significantly – a dedicated court, with these further institutions balancing the executive power of the high authority.

The high authority furthermore had the power to issue decisions and recommendations binding the signatories – France, West Germany, Italy and the three Benelux countries (who were already heading towards economic unity).

*

So we have in 1952 the establishment of the ECSC – with a supranational group of institutions in place and with the power to make law and adjudicate disputes, ensuring adherence to shared treaty obligations.

And the key element of this arrangement was not that it was aspirational – notwithstanding the heady language of integration that accompanied it – but that it was a solidly, deeply practical solution to a problem – of what should be done in respect of the post-war industrial relationship of France and Germany.

Just as, say the Good Friday Agreement used an imaginative cross-border approach to a thorny cross-border problem, so did the Treaty of Paris.

What the Spaak Report of 1956 and the Treaty of Rome of 1957 then did was to employ this supranational approach (with shared institutions and shared law-making) on wider economic questions, as it was seen as an approach that would work.

So when the United Kingdom joined the communities in 1973, the fact that it was joining a practical supranational enterprise had been – well – as plain as a pikestaff for over twenty years.

*

What makes this ‘pre-history’ significant is that it is often the view of critics of the European Union that its supranational nature is somehow airy-fairy – that it is impractical and unrealistic.

And this is seen as a contrast to rugged Anglo-Saxon empiricism and practical common sense.

The reality is that the European Union, as with its predecessor organisations the European Economic Community and ECSC, regards its supranational nature as eminently practical, as was as embodying certain ideals of European unity.

That it works.

Supranationalism is thereby an approach which has worked since 1952 – and not just somehow inflicted by surprise on the united Kingdom after 1973.

It is not as if the debate is between an unrealistic pro-European Union camp and a realistic band of critics.

The problem that the United Kingdom had for a long time when a member of the European Union is that it rarely wanted to work within a supranational organisation.

Supranationalism was, it seemed, for other people.

The United Kingdom regarded supranationalism as a bug of the European Union, and not as a feature.

So the United Kingdom sought – and obtained – opt-out after opt-out, until 2015-16 when it sought a ‘re-negotiation’ only to find the European Union could and would shift no further.

*

The supranationalism of the European Union is seventy years old.

The United Kingdom in its modern form as a collection of four nation states has only existed since 1922 – and so is a mere thirty years older than the first of the European communities. 

As this blog has previously averred, political unions come and go – and no political union can be seen as eternal.

And given that the supranationalism of the European Union is regarded as practical as well as an ideal, there is no inherent reason why the European Union will not last longer than the United Kingdom as a union of nation states.

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