15th September 2025
Our polity is there for the taking
There are only so many ways of saying that the United States polity is broken.
There is a lot going on over there, and what is going on requires explanation, but there is little or nothing that can now be usefully said from a United Kingdom constitutionalist blog.
This is because looking at it from a constitutionalist perspective is – at least for now – a redundant exercise.
Indeed, one could go so far to say that their constitution is no longer even in crisis. It is instead damaged, perhaps irrecoverably so.
It is post-crisis.
It is almost as if their constitution is no longer there.
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The important thing – crucial thing – is to ensure the United Kingdom’s polity does not follow suit.
For – as I set out in Prospect recently – the United Kingdom constitution is perhaps more vulnerable to an illiberal radical takeover than the United States one.
Our doctrine of parliamentary supremacy, together with the royal prerogative and the legion of “Henry VIII” powers already in legislation, mean that an incoming government with a firm majority will have near-absolute legal power.
The prospect of such a possibility should, of course, make our current government and parliament want to repair the constitutional roof before a radical illiberal storm arrives.
(House of Lords reform, electoral reform, reforming statutory instruments, placing the remaining prerogative powers on a statutory basis, and so on.)
But, of course, they will not.
And, also of course, many constitutional reforms could be undone in a couple of years by a government with a firm majority: no parliament can bind its successor.
But at least an incoming radical illiberal government in the United Kingdom would be prevented from doing at speed and at scale what is happening in the United States.
There is going to be a concerted effort to bounce the United Kingdom into an early general election. But even if this parliament runs its normal course, our polity is simply there for the taking.
Brace, brace.
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This post originally had the title “The pointlessness of UK constitutional commentary on US events – why there is little or nothing useful now to say on US constitutional events from a UK perspective”
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And yet various Parliaments have bound their successors. The various decolonisation acts (Canada Act, Dominion Act, Australia Act, Ireland Act) are simply the most obvious examples.
The UK could give itself a constitution that bound Parliament by setting rules for lawmaking and constraints on what even Parliament could do. I’m just not sure that the UK could do that before the next election, because the process should probably begin with a government being elected with such a constitution as an explicit manifesto promise.
I had, you would be glad to know, taken all these points into account in how I worded my post.
Surely the most obvious one is Brexit!
Actually, I think you may have given us the right example but the wrong way around.
The UK’s decision to leave the European Union is technically, though perhaps not politically, reversible.
However, consider the inverse: what would be required for a “full member” state – one which had no domestic central bank, no native fiat currency, which had adopted the practice of regionalised administration (for example by devolving more powers to regional parliaments) to leave? It would be *far* more difficult to disentagle a nation from EU membership than to join.
Had the nation voted to Remain – or if the nation were to vote to re-join – then that decision would almost certainly be irreversible. Not, perhaps, because a national parliament would be barred from creating such a law, but because of sheer logistical complexity – not simply because a “re-joined” UK would of course not be given the same opt-out rights we previously enjoyed, or the retention of our own fiat currency.
It would be about as possible as the UK deciding to switch from driving on the left side of the road to the right side, tomorrow.
I’m straying a bit off-topic with my examples, but the basic point stands: a decision by the UK to join the EU would to all intents and purposes be irreversible.
Sadly, I think this sedimented legacy of alarming legal powers will be amplified by the UK’s accelerationist embrace of AI, which is nothing if not an anti-democratic technology at its very core (and I say that as a scholar of critical computing). If readers are interested, I have related pieces in Computer Weekly about Labour’s AI Action Plan and about the implications of the Horizon IT scandal for future AI harms.
People seem to forget that the UK constitution albeit not a cherished document, but Parliamentary sovereignty as a principle of law, almost disappeared in 2019 with the attempt of Boris Johnson to prorogue Parliament. It was absolutely appalling and helped win him a landslide victory in December. Course that victory was in large part due to the Brexit party standing down and not contesting any seat, but the optics of an appalling overthrow of the principle of law proved to be quite popular come election day and no amount of refrigerated distractions could take that away.
It is a staple of Science Fiction, of time travel stories, that a stitch in time saves nine, that the earlier an edit is made, the smaller it can be to prevent some future horror.
I am not sure it makes a great deal of difference. All the checks and balances in the American constitution have proved to be of no weight. Two of its three branches – Congress, the legislature – and the Supreme Court – have abdicated their role. You can have all the constitutional arrangements you want and they will not stop a determined presidential figure who has the soft support of his party. The practical difference between a written constitution and an unwritten one one based on precedent and on the belief that we are all good eggs, from a narrow range of schools and universities, with a mutual understanding how how things should be done (and a tacit agreement that the other side will occasionally get to play), might turn out to be very small.
As Ralph Cox doesn’t quite say in his comment (above), the prorogation of the Commons in 2019 proved that we cannot expect the monarch to act as a restraint. Of course, one would be condemned for speaking ill of the late Queen, but she did not acquit herself well over that.
Incidentally, if the Democrats are returned in 2029, which is not impossible but seems a bit unlikely at the moment, what do they do about the US Supreme Court? I suspect that it will reverse its position and show that up is now down in order to hobble a Democratic government.
Agree, and at the risk of repeating what I said in a previous comment, surely it is the US Supreme Court which is most to blame. The lower courts in the US are constantly striking down Trump and his lackeys, only to see SCOTUS undermine their efforts to preserve legality, and these lower courts have now to their credit sent a message of complaint to SCOTUS. America never had genuine separation of powers, and we now see the result
Most to blame is the US Congress for not impeachment Trump after Jan 6.
Until the Civil War, the size of the Supreme Court was determined by the number of Appeals Court Circuits. As there were then 9, the Court had grown to 9 justices. During the war, a 10th was added both as a circuit and as a Justice. Because the Republic Majority in Congress didn’t want Andrew Johnson having the ability to nominate, the number of Justices was reduced to 9 and decoupled from the number of Circuits. There are now 13 (12regional+the Federal Circuit). Clearly the original intent (current Rs are big on originalism – haha)was to have the number of Justices align with the number of circuits with each assigned to one in a supervisory role (they no longer ride circuit). Currently, it is only ‘conservative’ justices who have multiple assignments. The case is overwhelming that the Dems can add 4 new positions to the Court. 9 is not a significant number it is just an artifact.
It will likely be unpopular, but one way of looking at the relationship of the UK to the US is to accept that, to a certain extent, the UK – and other nations – have become vassal states. Economically, the US market is so vast, it’s per capita wealth so comparatively strong, that the economic fortunes of all smaller economies – well, western ones, at any extent, are inexorably tied. Militarily, the US is one of two super-powers – the other, of course, being China – to the extent that the UK is reliant upon defence treaties with European neighbours – as well as via NATO. Culturally, one only has to look at the amount of US music, cinema, and television to understand how ubiquitous and influential it has become.
Finally – perhaps most influentially – so much of what comes to influence America as a nation migrates eastward and reaches our shores sooner or later.
Which leads me to to believe that whilst it is almost certainly pointless to critique transAtlantic developments from a UK perspective, it is critical to try and understand them in a global context. Whether benign or malignant, the US is the 800lb gorilla in the room. Foolish indeed is the fellow occupant of that space who disregards the moods or interests of that particular primate.
Perhaps, however, there is a more pressing reason for our continued attention. The change in the temperature, worldview and temperament of the United States has changed so drastically in the last 8 months… and we would be deluding ourselves if we think that it cannot happen here, just as quickly.
Speaking of which… In previous comments to earlier posts I have referenced the brief parliamentary career of Martin Bell, the former BBC journalist and “Man in the White Suit”, who displaced the disgraced Tory MP Neil Hamilton. His victory was at least in part to the tactical decisions of Labour and the Liberal Democrat’s to not stand candidates in the Tatton constituency, making it a straight fight.
If as a nation we’re faced with a surging extremist party, perhaps we might need to return to similar tactics.
The one thing which might stop this coming to pass is electoral reform to ensure that no party could in future ever game the (FPTP) system to obtain the unlimited executive power you refer to with the support of a minority of the electorate. FPTP is now almost certainly incapable of stopping an extremist party coming to power which has traditionally been one of the main arguments for it.
Yours is primarily a commentary on constitutional law, but I’d be interested to hear your thoughts on what appears to be extra judicial killings of foreign civilians by the US in international waters.
I am against it.
The obvious course of action, if the present government was minded to act to prevent an unfortunate turn of events, which sadly it doesn’t seem to be, would be to legislate now so that the next general election is conducted under a proportional electoral system. This could prevent a radical right wing government achieving the kind of majority that would enable them to overturn our democracy.
It wasn’t in their manifesto. For some reason that is regarded by any government’s opponents, but especially this one’s, as an insuperable obstacle. There have been exceptions, in the form of emergency legislation. The Dangerous Dogs Act was a fine example. A “Governance by Mad Dogs (Prevention) Act” seems perfectly reasonable in present circumstances.
It would be absurd for governments to be constrained to only legislate on things that were in their manifestos, and clearly they are not.
There is an inherent problem with governments legislating outside of their manifesto and that is the fact that no one signed up to it. The media tend to focus on the fact that the electorate didn’t sign up to it but the real challenge with implementing legislation is that the MPs didn’t sign up to it. How many governments have brought in 3 line whips on fly by night policies which have made far too many headlines and caused irreparable damage?
Most important are the “we will not…” Pledges in manifestoes which are regarded in the civil service as red lines and any changes need to come from ministers and will not be offered by the civil service even if it is a solution to a problem unless not doing so contravene some law which is then dependent on ministers to forcibly overturn through changes in legislation.
Successive parties in power has been reluctant to legislate for PR because that precludes them on winning the “absolute power” that David Allen Green sets out in this article.
This seems like there is no hope for the USA.
Surely one can create a law which may only be amended or repealed via an enhanced majority rather than a simple majority? And/or indeed with a delaying clause or requirement for a referendum? They do that in the US with the constitution, so why not here?
Is that not the point of the Human Rights Act and the supervening jurisdiction of the European Court of Human Rights? Two benefits that the USA does not have. I appreciate that the process is cumbersome but isn’t that often the case with Constitutional Law? The Supreme Court did a magnificent job re the unlawful proroguing of Parliament, so I am not entirely without hope. Of course our Supreme Court Justices are not political appointees, either. Another difference that the USA doesn’t benefit from.
Am I right in thinking that prorogation of Parliament is a direct action on the part of the monarch, as distinct from an action on the part of the Prime Minister for which the monarch has given consent? I have a notion that if the monarch were, with good cause on a particular occasion, to refuse to prorogue, the resulting “constitutional crisis” would be relatively mild compared with, say, withholding the Royal Assent from an Act of Parliament.
How is an ordinary citizen like me supposed to do anything about it?!
Congress started the rot in the USSC, by refusing to approve any nominee put forward by Obama towards the end of his second term.