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Constitutional Hacks
By Nicholas Reed Langen

The constitutions underpinning modern nation-states have proven to be necessary for the proper functioning of liberal democracy. But if a codified structure for the exercise of power were enough, liberal democracy would not be in crisis today.

It is the crucible of war, Linda Colley argues, that forges constitutions. This claim raises an important question: What will today’s belligerent, combative politics in many countries mean for the future of liberal democracy, whose principles and values are arguably under siege like never before.

In The Gun, the Ship, and the Pen, Colley describes how the modern nation-state – and modern constitutionalism – emerged from the smoke of the cannon fire that engulfed the world in the seventeenth and eighteenth centuries. Even Great Britain, long fabled as the country without a codified constitution, was not immune to the “warlike pressure” of this period. It was ravaged by civil war in the mid-1600s, leading to the adoption of the Instrument of Government and the installation of Oliver Cromwell as Lord Protector in 1653. That, along with its successor, the Humble Petition and Advice, undergirded Britain’s government throughout Cromwell’s Lord Protectorship, until Charles II’s restoration to the throne brought an end to Britain’s experiment with republicanism – and with formal constitutions.

In her illuminating and wide-ranging book, Colley weaves a historical web that draws in countries from almost every continent. She reminds us that the act of drafting constitutions was hardly the exclusive preserve of Western industrializing nation-states. Moving adroitly from the familiar cases of the American and French post-revolutionary constitutions, she examines more unfamiliar cases such as the constitutions of Papua New Guinea and the Pitcairn Islands, and how they even pioneered rights we are only now coming to recognize. In 1838, the Pitcairn Islands constitution recognized the right to a safe environment – a principle that the United Nations did not officially adopt until this October.

Colley, a historian at Princeton University, focuses less on the values and principles underpinning these constitutions than a political philosopher might have done. Instead, her goal is to show how citizens in modernizing nation-states set out to create coherent, responsive, and effective systems of government. The key, in each case, was both to empower and impose limits on the executive, the legislature, and the judiciary. That, after all, is what constitutions are fundamentally supposed to do.

Quoting Hannah Arendt, Colley observes that a constitution is “a written document, an endurable objective thing” that distributes power throughout the branches of government, often (but not always) in pursuit of ensuring a democratic system. Failing that, it should at least “bind the sovereign,” as the French Encyclopedist Denis Diderot told Russia’s Catherine the Great.

For many of the Enlightenment-era monarchs who sought to prove their liberalizing credentials, the tension between novel principles and absolute powers proved irreconcilable. Seeking acclaim from philosophes such as Diderot and Voltaire, sovereigns like Catherine II and Frederick the Great of Prussia were eager to engage in the modern art of constitution-making (and of mythmaking for themselves, of course). But, in the face of sacrificing their “absolute powers,” their aspirations were confounded.

While documents like Catherine’s Nakaz (Instruction) – an early attempt at constitution-drafting that never came to fruition – formalized certain benevolent values, the sovereigns too often remained “free to alter them.” “The sovereign is absolute,” Catherine wrote, “for no other than absolute powers vested in one person, can be suitable to… [govern] so vast an empire.”

Rare were rulers like Sweden’s Gustav III, who willingly ceded his authority to a “fixed and sacred fundamental law” requiring that both he and his people be “bound to the law.” But regardless of whether monarchs gave up or clung to power, most were overtaken by events. In Colley’s account, wars were usually what brought monarchies to the “tipping point” of constitutional change. Examining France’s involvement in the Seven Years’ War, she reflects on Louis XV’s “determination to restore French national prestige” following the “shocks and shame” of defeat that drove the regime into “financial and political meltdown” and paved the way for a “constitutional and social revolution.”

But French rejection of the monarchy (at least at the outset of the Revolution) was not universally shared. While many revolutionaries were united in their desire for constitutional, political, and social transformation, they were divided over the form it should take. Some, particularly those early to the constitutional movement, preferred the comfort and familiarity of a monarch over more directly accountable heads of government. Indeed, even the revolutionaries of the English Civil War eventually offered Cromwell the crown – which he refused – and then appointed his son, Richard, as Lord Protector after his death.

Not all constitutions forged during this period were motivated by noble principle. Back in France, Napoleon’s 1799 constitution contained no declaration of rights. And though it delegated executive power to three consuls, “actual power” was “exercised by the First Consul, Napoleon himself, who declared himself ‘Emperor of the French’” in 1804, Colley writes.

As constitutionalism spread around the world (disseminated by “the ship” in Colley’s title), the debate over forms of government became for many a “private pursuit, as much a mode of literary and cultural creativity as writing a poem, a play … or a novel.” Colley tells us that drafting a constitution became a hobby for “any literate person with sufficient time, blank paper, enthusiasm and confidence.” Constitutions and the ideas that drove them were the stuff of conversation in coffee houses and literary salons, debated and discussed from London to Mumbai.

CONSTITUTIONAL CODES

Colley’s book is particularly well-timed. Not since this first era of mass constitution-drafting (with the possible exception of the immediate post-World War II period) have constitutions and the institutions they empower spurred so much debate. That debate is particularly pertinent in Britain, which is now reckoning with the political, economic, and constitutional consequences of its abrupt departure from the European Union.

Colley reminds us that Britain long served as a nexus for many would-be constitutional authors. Revolutionaries were drawn to London to visit the gardens of the “white-haired, trim and restless” Jeremy Bentham, who considered himself “qualified to advise on and draft constitutions … for any society anywhere in the world.” Among the historical figures entertained by Bentham were Simón Bolívar and Aaron Burr, on the run after his fatal duel with Alexander Hamilton. Burr, ironically, presented Bentham with a copy of Hamilton’s Federalist Papers, and then sought to “carve out an independent territory for himself in Mexico.”

If there was one country on which Bentham notably failed to make a meaningful constitutional mark, it was his own. Britain’s own constitution remained static through this period, defiantly upholding the notion that Parliament was sovereign, with all the consequences that this arrangement entailed. According to the Victorian legal scholar A.V. Dicey, there was nothing that Parliament could not do. As Leslie Stephen famously put it, were it to will a Herod-like execution of all blue-eyed babies, the law could not stop it.

But the idea of parliamentary sovereignty is no longer as sacrosanct as it was. From the beginning of the twentieth century onward, the courts gradually eroded this once-absolute principle, leaving a doctrine that appears to be crumbling – much like the Palace of Westminster. Yet while Britons today can be confident that there are some things that Parliament almost certainly may not do (such as abolish judicial review), there remain questions as to where exactly the power of the legislature or the executive ends, and where that of the constitution begins.

In most constitutional systems, final authority to say what the constitution means falls to the courts, with the executive and legislature expected to accept the highest court’s rulings. This convention has largely held in recent years, in the sense that no prime minister has dared to emulate Alabama Governor George Wallace, who responded to the US Supreme Court’s Brown v. Board of Education decision by personally blocking the doors to a school to prevent black students from registering. But nor have government ministers shown the principle is quite so unquestioned as supporters of liberal democratic values might desire.

After the United Kingdom voted to leave the EU, the UK Supreme Court forced then-Prime Minister Theresa May to seek Parliament’s blessing for her Brexit plan. It then provided a check on her successor, Boris Johnson, when he tried to prorogue, or dissolve, Parliament for five weeks to run out the clock on his own Brexit agenda. But while the government acquiesced in both cases, it did so in bad faith. May’s government barely challenged the accusation, issued by pro-Brexit tabloids, that the judges were “enemies of the people.” And members of Johnson’s cabinet, not least Jacob Rees-Mogg, the Leader of the House of Commons, openly questioned the merit of the Court’s decision.

A THIN REED

A lingering attachment to the principle of parliamentary sovereignty underpins such skepticism of judicial authority. According to some commentators, it is the legislature that should hold the government in check when it exceeds its authority, even if that means a vote of no confidence. Included in this group (at least at times) is the current president of the UK Supreme Court, Lord Reed, who has frequently deferred to the government rather than take what others might view as a more assertive position on human rights or constitutional principles.

This has meant that, in some of its recent rulings, the Court has contorted itself to uphold the government’s approach. For example, in a case involving the denationalization of a British citizen who traveled to Syria to become an Islamic State bride, the Court concluded that the “right to a fair trial” is not a “trump card.” And in a decision challenging the limit to child benefits, it ruled that a policy’s fiscal implications can justify indirect discrimination against women.

Does this mean that Britain should draft its own constitution? After all, almost every other Western democracy adheres to one, with only New Zealand joining the UK in splendid constitutional isolation. (Even Israel, which Colley sees as a fellow traveler, has the Basic Law, which is at least constitution-adjacent).

In these democracies, the courts’ final say on the constitution’s meaning is accepted almost without exception. Even Lord Reed acknowledged in a recent article for The Parliamentarian that the UK Supreme Court “is the ultimate interpreter of the laws that Parliament enacts,” though he added the caveat that the Court is “far from being a constitutional court” and must show “deep respect for Parliament.”

But the absence of a codified document means that it is not clear where “ultimate interpretation” ends and “deep respect” begins. In addition to offering clarity on that question, a written constitution would provide some textual restraint. That would be welcome to those who bemoan the UK’s departure from the EU on the back of a razor-thin referendum result, or worry what the current government’s ongoing hostility to human rights portends for the future of the UK’s Human Rights Act or even its membership of the European Court of Human Rights.

But constitutions are not a quick fix. They are neither a sword to slice through all political and legal conundrums, nor a shield to prevent the rise of autocrats or dictators. Colley acknowledges this from the outset, writing that constitutions “are the frail, paper creations of fallible human beings.” They have as “much to do with enabling varieties of power as … with restricting power.” Anyone who thinks otherwise need only glance at the United States, where Donald Trump showed how much an uninhibited, unhinged president with the support of Congress and a fanatical electoral base can undermine a written constitution.

IMMUNIZING LIBERAL DEMOCRACY

To this end, in Democracy Rules, Jan-Werner Mueller, a political scientist at Princeton University and The New Institute in Hamburg, considers how liberal democracies should respond to the emergence of the “authoritarian-populist art of governance” that now plagues much of the world. As in his previous book, What Is Populism?, Mueller maintains – accurately – that what binds today’s populists is the insistence that “their rivals are corrupt and simply fail to serve the interests of the people,” and, “more insidiously,” that there is such a thing as “the people” in the first place.

Mueller shows that populists need to divide society in order to secure electoral victories. Whether this involves delegitimizing sections of the population, attacking the media, or – crucially – manipulating the political system, the key is to justify the claim to be the authentic representative of the people by “taking as much uncertainty out of elections as possible.”

The element of uncertainty, Mueller argues, is fundamental to any real liberal democracy. The “loyal opposition” must have a genuine prospect of success for democracy to be more than kabuki theater. But what happens to societies that have already fallen prey to populist authoritarianism? Even in the US, where the current president respects liberal democratic norms, right-wing state governments are interfering wholesale with the electoral process through gerrymandering and voter-suppression laws. Their express aim is to maximize the electoral chances of Trump or one of his acolytes in the 2024 presidential vote.

Against this backdrop, many of Mueller’s proposals are intriguing but not particularly inspiring. He considers models from some of the world’s better-functioning democracies, such as Ireland’s use of citizen assemblies to determine its approach to abortion. But the viability of these ideas seems to rest more on blind faith than on anything substantive. Ultimately, one is left with a sense of helplessness after reading Mueller’s analyses of the failings of political parties (which are too big to be truly representative), the media (which has lost its local roots), and social media (which is too unmoored from facts to be beneficial).

Mueller is aware of the scale of the challenge, conceding that any technical reforms will need to be matched with efforts to address Western society’s more fundamental problems, not least inequality. But he doesn’t delve into how this might be done. “There is no particular reason to be optimistic about democracy,” he writes.

Instead, we must hope that “someone” will take us down the right path, perhaps by following philosopher John Rawls’s theory of civil disobedience, according to which “distinctly uncivil forms of confrontation aim at changing the minds of audiences.” But even here, Mueller cautions that while “nonviolent but still tough and confrontational strategies have been remarkably successful” historically, past movements did not have to compete with such a “fragmented” public sphere, where all appeals to justice now risk being “drowned in info-feces.”

OUT OF TOUCH, OUT OF TIME

One institution that Mueller pointedly dismisses as a solution to the current crisis is the courts. We ought to have learned by now, he writes, that the “courts will not necessarily save us.” And for anyone who reads US Supreme Court Justice Stephen Breyer’s willfully oblivious new book, The Authority of the Court and the Peril of Politics, it is difficult not to share Mueller’s sense of futility and foreboding.

Breyer is a thoughtful and learned jurist, but he seems determined to tarnish his own legacy by squatting on the Court instead of retiring now and allowing President Joe Biden to fill his seat. By remaining, Breyer is opening the door for Republicans to secure yet another appointment if he dies while they hold the White House once again, or to hold his seat vacant – as Senator Mitch McConnell did to Merrick Garland in 2016.

Such stubbornness, one presumes, is motivated by the same wishful thinking that leads Breyer to insist that Supreme Court justices are apolitical, when they quite obviously are not. “I cannot prove this assertion,” Breyer concedes, “but I fervently believe it.” His book – really more a pamphlet – provides a consistent drip-feed of this trite, Panglossian sentiment. Several of his fellow justices have also recently felt a need to proclaim their nonpartisanship, even as they hand down decisions that veritably scream the opposite.

For example, Amy Coney Barrett, the Court’s newest justice, recently insisted that she and her colleagues are “not a bunch of partisan hacks.” Having accepted her nomination to the Court with an appearance on the White House balcony that was more Eva Perón than Ruth Bader Ginsburg, she made this statement at the University of Louisville’s McConnell Center, named for McConnell, who rammed through her nomination just days before Trump’s electoral defeat.

Likewise, Justice Samuel Alito spent much of a recent lecture at Notre Dame, the Roman Catholic university where Barrett was a professor, castigating a journalist for challenging the neutrality of his judgments. Insisting on his respect for precedent, Alito’s complaints came just after the Court had used its “shadow docket” to let stand a Texas law effectively nullifying the 48-year-old Roe v. Wade decision, which recognized women’s constitutional right to abortion.

Breyer’s book is premised on the philosophy that the justices, lacking the “power of the sword or the purse,” need the public’s respect in order to serve their constitutional purpose. Although this premise is not flawed, Breyer’s argument for it most certainly is.

Breyer embarks on a whistle-stop tour of some of the Court’s greatest democratic hits. He argues that cases like Brown have contributed to “acceptance of the Court’s decisions” becoming “virtually habitual,” thus allowing for the “rule of law to persist and flourish.” Even in the face of infamous decisions – such as Dred Scott v. Sandford (excluding people of African ancestry from citizenship) and Korematsu v. US (upholding the internment of US citizens of Japanese descent during World War II) – “the public seems to have maintained its confidence in the court,” Breyer writes. On that basis alone, he seems to believe that the Court should be left to get on with it.

Breyer thinks it is dangerous to view the court as “political,” claiming that his experience has taught him that “all [judges] studiously try to avoid deciding cases on the basis of ideology rather than law.” But while Breyer himself might “fervently believe” this, it is a claim that most others would consider increasingly implausible. One need only consider the efforts by McConnell – who singlehandedly prevented President Barak Obama from appointing a justice in the last year of his term – and the conservative Federalist Society to ensure that only the most ideologically pure right-wing judges make it onto America’s highest court.

DEMOCRACY IN PERIL

Breyer might more profitably have explored what a 7-2 conservative majority would do to the court’s legitimacy in the eyes of the American public. That, after all, is a likely outcome of his own selfish decision not to retire while Democrats control both the White House and the Senate. In his desperate attempt to portray the Court as a non-partisan body, Breyer closes his eyes to the political inferno that is licking at its door. He begs his readers to “remember the constitutional need for … cooperation and compromise,” apparently expecting them to ignore reality as much as he does.

A court more cognizant of the need to preserve and protect its core values would have been more engaged in challenging Republicans’ outright assault on the constitution and liberal democratic principles in recent years. The broader history of constitutions shows us that while values can be allowed to wax and wane, fundamental principles like human dignity, the separation of powers, or executive accountability must be vigilantly guarded. The current political moment is one of those infrequent instances when we can see constitutions being degraded before our eyes. They increasingly are being used to guarantee particular parties or groups disproportionate political power, at the expense of democracy itself.

How, then, to reanimate the principles that undergird democratic constitutions in the first place? Mueller is on the right track with many of his solutions. But his proposals depend on there being a sympathetic government rooted in loyalty to the constitutional order and rule of law. Those values are precisely what is lacking in too many “democratic” politicians today. With a hostile executive, a compliant legislature, and a self-interested media, the courts may well be the last pro-democratic institution standing. If so, we will need the Court to demonstrate the courage of a Ruth Bader Ginsburg, not the fecklessness of a Justice Breyer or a Lord Reed.

(Stephen Breyer, The Authority of the Court and the Peril of Politics, Harvard University Press, 2021, Linda Colley, The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World, Liveright, 2021 and Jan-Werner Mueller, Democracy Rules, Allen Lane, London, 2021; Farrar, Straus and Giroux, New York, 2021.)

Nicholas Reed Langen, a 2021 re:constitution fellow, edits the LSE Public Policy Review and writes on the British constitution for The Justice Gap.
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