Category: Constitutionalism

Thinking about a revolution

5th March 2025

Some things are changing rather fundamentally and the way we think should perhaps change too

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There is that scene in Monty Python’s Quest for the Holy Grail where an armed knight crashes and easily wastes a wedding party.

 

And of course, this armed knight is able to cause so much damage at a wedding party – nobody would expect this to happen and so nobody would think to to stop him.

He shows that it is really not very difficult to move fast and break things.

The surviving gate guard outside just looks on bemused at this, and he says, “hey”.

This is pretty much what many are also doing as they watch what is happening in the United States.

They see what is happening, and their response is also a bemused “hey”.

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Students on university history courses often study historiography – the study of historians and how they write about history.

Sometimes this study of historiography includes a look at how different historians have used certain words and concepts, such as ‘revolution’.

And those students then find that such words and concepts have been used at different times and in different ways.

So, for example, students looking at ‘revolution’ may come across the so-called ‘diplomatic revolution’ of 1756.

In early 2025 we seem to be having a similar ‘diplomatic revolution’ – in real time, and this feels odd as in the United Kingdom we have not really had one for a long while.

When I mentioned this on social media, this was one insightful response:

The United States’ current deliberate alienation (and worse) of its long-term allies is a similarly fundamental – and, no doubt, similarly consequential – shift.

And although one should hesitate before saying anything as pointed as describing president Trump and Vice-President as Russian assets, their conduct is indistinguishable from them being so.

Everything they are doing appears to increase Russian power and to limit United States power.

There seems to be no other explanatory model that explains as much.

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This is not to say that they are necessarily actively corrupt: one is reminded of an old joke-poem about Fleet Street journalism:

You cannot hope
to bribe or twist,
thank God! the
British journalist.

But, seeing what
the man will do
unbribed, there’s
no occasion to.

In addition to any actual corruption, there seems to be also an ideological commitment to promote and protect Russia at the expense of everyone else.

Perhaps the ghost of Stalin is now kicking itself – had he only described his regime as Russian nationalist as opposed to communist, he may not have been bothered by American cold war policy and 1950s McCarthyism and so on.

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One thing about a (genuine) revolution, like a (genuine) crisis, is that they are unpredictable in their course and in their outcome.

And another thing about a (genuine) revolution is that it often requires there to be new concepts and new words, so as to describe things which are new.

Imagine living through the French Revolution without the benefit of hindsight: from the storming of the Bastille and the ending of the monarchy to the Terror, and from the Terror to the rise of Bonapartism, and from Bonapartism to a massive war and imperial conquest, and from a massive war and imperial conquest to a total defeat and the restoration of the monarchy.

And at each stage, nobody knowing what will happen and everything always confused and foggy and (frankly) terrifying.

Events unfold into things which were not only unexpected but also unprecedented.

Decades later, of course, the frenzy settles down to calm historical narratives.

But at the time, things did not seem like that.

As somebody once said of “realistic” war films, the only realistic war film would have bullets spraying out randomly from the cinema screen.

The same can be said about reading about social and political upheavals.

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Revolutions are thereby not often fun – despite (or because of) the enthusiasm of self-appointed revolutionaries.

Wise conservative once knew this. There is a good case that modern conservatism (at least in Europe) came out from the reaction to the French Revolution – with its philosophy articulated by Edmund Burke and its statecraft practiced by Metternich.

Constitutional arrangements and the international order were regarded as fragile things – to be, well, conserved.

(Hence, conservatism.)

Yes, one could (to be anarchistic) move fast and break things. But that was neither clever nor wise. One can imagine the looks at the faces of Burke and Metternich and others at the antics of Elon Musk and DOGE

And the reason and the motive to oppose liberals, progressives and radicals was for Burke and Metternich that in their demands for reform and progress the liberals, progressives and radicals risked the fragility of constitutional arrangements and the international order.

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One of the most remarkable features of current “conservatism” is that that it turns this conservatism of Burke and Metternich on its head.

It is almost as if the word and concept of conservatism has had its own revolution, and it has now become the very thing it once opposed.

The only common quality is that both old-style and new conservatism grasp the fragility of constitutional arrangements and the international order.

But instead of the caution of old-style conservatives, the new conservatives see that very fragility as an opportunity to trash and do damage.

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And so all sorts of things are now being unleashed.

Here are a couple of literary examples of horrors being unleashed in their giddy destructive excitement.

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In the words of Yeats:

“Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world,

The blood-dimmed tide is loosed, and everywhere

The ceremony of innocence is drowned;

The best lack all conviction, while the worst

Are full of passionate intensity.”

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Or in the words of C. S. Lewis:

“But such people! […] bull-headed men; spirits of evil trees and poisonous plants; and other creatures whom I won’t describe because if I did the grown-ups would probably not let you read this book—Cruels and Hags and Incubuses, Wraiths, Horrors, Efreets, Sprites, Orknies, Wooses, and Ettins. In fact here were all those who were on the Witch’s side […]”

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Alas, unlike the original literary texts from which those quotes are extracted, we are perhaps unlikely to be saved by a second coming, or even a first one.

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What has been done in the last few weeks by Trump and his cronies cannot – at least on a conceptual level – be undone.

They have shown just how fragile are their constitutional arrangements and the international order.

That cannot be un-invented.

Other countries would now be prudent to regulate their affairs so as to minimise or eliminate their dependency on the United States – it is no longer a question of waiting out until the next United States elections.

And other political systems would be wise to limit what can be done within their own constitutions by executive order, and to strengthen the roles of the legislature and the judiciary (and also of internal independent legal advice within government).

What is happening in the United States can happen elsewhere.

It can happen here.

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Any political culture has a stockpile of political anecdotes, precedents and other antecedents, examples and illustrations, fables and proverbs.

“Peel did this” and “Roosevelt did that” and “This is just like the 1930s”.

There is nothing wrong with this – indeed it is an inevitable part of any political culture, essentially it is a shared set of memes and gifs that help us make sense of what is going on around us.

The problem is that old categories and concepts often do not match the novelty of what is now unfolding.

We many need to think about things in a new way – so as to work out to defeat what is unwelcome.

We may need to have a revolution in our own minds.

And not just go “hey” instead.

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(And to my history tutors from the early 1990s, I am really sorry this historiography essay is thirty-five years too late.)

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The fog of lawlessness: what we can see – and what we cannot see – in the current confusions in the United States

25th February 2025
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“l’histoire […] [est] après tout qu’un ramas de tracasseries qu’on fait aux morts.”

[“History […] [is] an annoying trick we play upon the dead.”]

~ Voltaire

(See here regarding the translation.)

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A war or a revolution or a riot often makes little sense to contemporaries. There is a metaphorical fog, and there is confusion. Information is incomplete or unreliable. There is anxiety and excitement. Nobody really knows what is going on.

It is only in the later clear prose of a good historian, or the elegant prose of a confident judge, that the events seem to take some form of order: that what was messy and complex becomes a neat linear narrative, with reasoned conclusions based on tested evidence.

But it is not like that for those at the time.

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What is actually happening currently in the United States is unclear.

There is a metaphorical fog, and there is actual confusion. Information is incomplete or unreliable. There is anxiety and excitement. Nobody really knows what is going on.

Not even those instigating the chaos know what is going on: they are too busy moving fast and breaking (and taking) things.

They may have some vague ideas about what they will do next, but one suspects what they will do next will come down to opportunism and cunning more than anything more concrete.

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But in this fog there are certain things which can be made out.

For example, there are individuals who are insisting on being constitutionalist – despite the intense pressure and open threats to be otherwise.

There are the federal prosecutors who refused to apply for the prosecution of a politician to be dismissed:

There is the federal judge who appointed an independent lawyer to assist the court when nobbled prosecutors were found to apply for that dismissal:

There is the governor who said “see you in court” in the face of a president announcing that they were the federal law:

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“See you in court” is a phrase that conveys the essence of the rule of law: that there is a forum where assertions of power can be tested for their legality.

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And then there are things which are not being said.

Here is what seems to be the sound of constitutional silence:

Some are suggesting that the lawyers here are acting in bad faith, and that they do indeed know whether DOGE has an administrator.

Perhaps.

But what is more likely – and what would be far more significant – is that the lawyers do not actually know if DOGE has an administrator.

And here the word “know” is crucial – do they have knowledge?

They may have an understanding, a guess – or they may have heard somebody say something.

But if they do not know, they do not know.

And they are not going to mislead the court otherwise.

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Indeed, whether DOGE actually exists is becoming more of a question for a theologian or a philosopher than for a mere legal commentator.

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Perhaps soon all this will settle down, and the fog and confusion will clear, and we will see what has really happened.

The problem is that in fog and confusion a lot of things can happen which we cannot now know and maybe will never know.

It takes time to “see you in court” – and one does not know what one cannot see before one eventually gets to court.

By the time a court intervenes – and the adults stop the infantile antics – a lot of damage can be done – and certainly a lot of data and other material can be taken.

The law is sometimes not well placed to deal with what happens under the fog of war.

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Making sense of what is happening in the United States

18th February 2025

How can we make sense, from a constitutionalist perspective, of what is currently going on in the United States?

Perhaps it cannot make sense, perhaps it is senseless – and so there is nothing more to be said.

Or perhaps one day we can look back at what is happening, with glorious hindsight, and see that it makes perfect sense.

Perhaps.

This post, however, is an attempt to make some sense of what is happening, based on currently available information.

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First, there is not – yet – a constitutional crisis in the United States, though it seems from the outside that the United States is very close to one.

Yes, there is conflict – but constitutions exist to regulate conflict. It is only a constitutional crisis when a constitution fails to resolve that conflict: when tensions harden to contradictions, which in turn can even prompt civil discontent and even violence.

And yes, there seems to be defiance by the executive of court orders, though the picture here is not clear. There are court skirmishes and filed appeals, and it may be that the apparent defiance is bluster and not reality. It is too soon to tell.

But if the executive branch deliberately and openly (and brazenly) defy the orders of a federal court then, yes, that would be a crisis. It would be a serious contradiction the outcome of which is not clear. Such a crisis may not lead to civil strife, but it would still be an unstable, unpredictable situation.

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Second, it would appear that an attempt is being made to avoid Musk having any legal responsibility for what this DOGE entity is doing:

It will be (grimly) fascinating to see how this somewhat desperate tactic works out in court.

One would hope that such a tactic should fail before any objective judge looking at substance of matter, but it may work before partisan Trump appointed judges. ‪

And we should remember that Musk is no legal tactician or strategist, let alone 4D chess player when it comes to the courts.

He got himself in legal knots in his attempt to withdraw from buying Twitter, which he was then legally obliged to purchase:

And he could not even arrange his own pay-rise in the company he actually controls:

This is not masterful legal strategy or tactics, just loudly confident, well-resourced legal blundering.

Curiously Trump is a lot more legally cautious than Musk, and Trump is instinctively good at avoiding (evading) legal responsibility under a general air of plausible deniability.

Yes, he has not always succeeded – and he has criminal and civil findings against him – but these are very few compared to the sheer number of legal threats he has faced in his political and business careers.

Think about how he managed to get out of almost all the cases against him about 6 January 2021 – from impeachments to federal prosecutions.

Think about how he has always avoided personal bankruptcy – despite his many business failures.

One suspects Trump would never have ended up having to buy Twitter against his will because of legal blunders.

This reckless/cautious distinction is one key difference between Musk and Trump.

One suspect that after all this, Trump will deftly survive/avoid the legal consequences of DOGE shenanigans, and Musk and his cronies will not.

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Third, the three key legal protections for Trump’s administration may not apply to the civil (not criminal) liability that may be triggered by what DOGE is doing:

      • Presidential pardons do not apply to civil liability – if Musk and others involved with DOGE are sued, no presidential pardon will help them.
      • The recent Supreme Court ruling giving the president a certain immunity from criminal prosecution similarly does not apply to civil matters.
      • Control of the Department of Justice will not help when matters fall to be determined by the federal courts – not all of which are (yet) dominated by Trump appointees.

The civil exposure – from being sued rather than being prosecuted – of those involved in DOGE would seem eye-wateringly high.

All sorts of contractual, proprietary, data and other rights of individuals appear to have been freely disregarded.

And on the face of it, the presidential machine offers no protection from suit from those whose rights have been breached.

No wonder Musk and others are now trying to distance themselves from legal responsibility for DOGE.

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And fourth, and to return to an old theme of this blog: the legal form of a constitution – codified, “written” or otherwise – offers no protection in and of itself when key political actors care not for constitutionalism.

(Constitutionalism is when those with political power accord with organising rules and principles despite partisan or personal advantage.)

There is no formal impediment to determined unconstitutional behaviour.

The real problem is how one gets politicians – and voters – to care about constitutionalism.

And that is a problem which has no obvious answer.

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From constitutional drama to constitutional crisis?

1st February 2025

When do constitutional problems become incapable of constitutional solutions?

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What is a “constitutional crisis”?

There has certainly been a great deal of constitutional drama in recent years – in the United Kingdom, the United States, and elsewhere.

But some of this drama somehow resolved itself.

In the United Kingdom, for example, the breathless threats and press briefings that the government was to do unlawful things in respect of Brexit in the end came to very little, though some (impotent) legislation was passed.

The United Kingdom supreme court in the Miller cases and parliament, by means of the Benn Act, put the government back into its constitutional box – and the once intense political-media frenzy over the Northern Irish protocol came to a whimpering end with the Windsor framework.

But sometimes constitutional dramas do spill into constitutional crises – political tensions harden into political contradictions, and these in turn can result in bloody violence.

On the islands of Britain and Ireland this has happened at least four times since the 1620s: the civil wars and political violence of the 1630s and the 1640s; the succession and religious conflicts from 1685 to 1746; the Irish war of independence and the Irish civil war; and most recently, the Troubles.

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The execution of Charles I

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Constitutional crises are serious political conflicts where constitutional means are unable to resolve the conflict, and the ultimate outcome of the conflict then becomes uncertain.

Often the political actors involved in the crisis will resort to violence – or be prepared to do so.

At such times it may not matter that a constitution is codified or not. For what has failed is not the form of the constitution, but its substance. The real failure is that of constitutionalism.

What then is constitutionalism? It has many definitions, but one approach is to regard it as the acceptance that there political rules and principles that should apply, regardless of partisan or personal advantage.

In other words that there are rules of the game.

What has happened in the United States over the last few days looks like a determined and comprehensive attack on various political institutions, by and on behalf of the newly re-elected President Trump.

As there are well-grounded fears that neither the federal judicial benches nor Congress will check and balance this attack, then there are the makings of a genuine constitutional crisis.

And the ultimate cause of this is not so much the failure of their codified constitution, but a deeper and wider failure of constitutionalism – including but not limited to the licence given by the United States supreme court to the president to do unlawful acts, and the failure of the Senate to discharge its constitutional obligation to convict Trump on impeachment after the attempted insurrection of 2021.

From such things, other things have now followed.

Brace, brace.

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Looking critically at Trump’s flurry of Executive Orders: why we should watch what is done, and not to be distracted by what is said

21st January 2025

Around Westminster, the most useful guides to the nature of modern politics may not be the journalists and commentators, still less the ‘think tanks’ with their portentous names and solemn but flimsy ‘reports’.

They are perhaps instead the con-artist conjurers on Westminster Bridge – whose activities are detailed in this fine piece.

For it is these lowly tricksters that remind us that we should watch what is done, and not to be distracted by anything else.

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The Conjurer, painted by Hieronymus Bosch

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In the United States and the United Kingdom there is currently a lot of noise and a lot of misdirection.

As a famous chess player once observed:

“The point of modern propaganda isn’t only to misinform or push an agenda. It is to exhaust your critical thinking, to annihilate truth.”

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The constant noise and endless misdirections are indeed exhausting.

By the time any of the noise and misdirections are translated into action (or inaction), you are tired to notice and others will be too tired to care.

We will be onto the next outrage, and then the next, and the next.

The hard thing is to separate out what is done (and not done) from what is said.

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In the United States there has been a flurry of Executive Orders from the newly inaugurated President Donald Trump.

This sounds very impressive, and it sounds very scary.

But, an Executive Order is not a precise thing – it is a generic term to describe a range of documents that can come from the President.

As this US academic explains:

Some of these Executive Orders will be instruments provided for and envisaged by pre-exisiting enacted legislation: and these will usually have direct legal effect.

Others will have no legal framework and have no legal basis for having any effect.

Many will range between these two extremes.

All will be ‘Executive Orders’ put forward and signed by the President – but pretty much that is all they will have in common.

And according to another US observer, many of these Executive orders are not even of serviceable quality:

This is not surprising: competent legal drafting is not easy, and many of these “Executive Orders” are from pressure groups and professional antagonisers.

Like the Truss legal letter recently examined on this blog, what you have here are media-political devices disguised in the form of legal documents.

But it is a mask, and what we are seeing is essentially a masquerade.

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This is not to say that some – maybe many – of these Executive Orders are not going to have adverse effects for somebody – especially in the short term.

Indeed, given the many partisan conservative judges now on the federal bench, there will be energetic judicial exertions to give effect to otherwise shoddy Executive Orders.

But what it does mean is that we should be careful not to accept everything at face value.

For a flurry of Executive Orders may be little different from a flurry of Press Releases.

And we should be mindful that we are dealing with con-artist conjurers.

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Some of President Carter’s judges can still judge, 44 years later – and so we can see how long Trump’s new nominees will be on the bench

New year’s eve, 2024

The former US President Jimmy Carter, who has just died, left office in January 1981 – just under 44 years ago.

Yet one of his many bench nominees was still actively serving as a federal judge as recently as 2021:

And that list also indicates that about 29 of those judges – while not on active service – have the semi-retired “senior status” and so can still serve as judges if required.

This shows the significant lingering power of every US President on the shape of the judiciary.

A 100 year-old president former president has died who left office over 40 years ago, and yet his appointments can still decide cases.

Bringing this around to today: the newly re-elected Donald Trump and the Republican Senate will be appointing a raft of young conservative judges to the judicial benches, in addition to those which were appointed during his first term.

And some of these will still be judging (or able to judge) in 40 or 50 years – long after many of you reading this post may be here.

The lingering effect of the two Trumpite moments will last for political generations. Some appointed judges may see out ten or more presidential terms and still be judging.

And judicial time limits are now more unlikely than ever: Trump and the Republican senators have no interest whatsoever in limiting the enduring power of their nominees. And presumably as and when (or if) the Democrats ever regain power, they will have no interest in limiting the terms of their appointees.

This is a practical effect of how what some say (or hope) may only be short-term political surges can have consequences that will last decades.

(See also: Brexit.)

We are not dealing only with the politics of the here and now, but about the law and government of the hereafter.

Perhaps things will one day get better for liberals and progressives.

Perhaps.

But it is going to be a long haul.

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Happy new year to the readers of this blog.

Thank you for your ongoing support.

There is going to be a lot to write about in the new year – and I am also going to explore the law and policy of AI, following my Candlemas story.

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Supporting Donald Trump is too much for Richard Cheney

7th September 2024

This week’s skirmish between the European Commission and X

17th August 2024
Law and politics are ultimately about how power is allocated and exercised within a given complex society. In particular, law and politics are about how such power is legitimised and about how it is checked and balanced.

And from time to time you will have visible contests between those with different types of power. The job of law and politics is then to regulate such contests so as to ensure that tensions do not harden into the contradictions that undermine the health of a polity.

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These contests of power, when they happen, are fascinating.

Over at Prospect I have written a post about one such contest: the European Commission v X.

The latter has considerable media power: so much so that the content of its platform can often have a considerable real-world impact.

But the former also has considerable power – in the formulation of the laws that apply to the platform in the European Union and in the application of those laws in particular circumstances.

It is quite the stand-off.

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When the European Commissioner responsible for the Single Market tweeted a letter last week, it reminded me of an earlier stand-off.

It evoked the stand-off in 1930-31 between the then government of the United Kingdom and the then popular press over tariff reform and imperial preference (the Brexit issue of its day).

That was a stand-off which, at least in the short-term, the government won.

(Tariffs were introduced later in the 1930s, though not directly because of media pressure.)

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Often these tensions are hidden and managed out of public view, and so it is always interesting – and instructive – when they are done in public.

Something is up.

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Seven changes for a better constitution? Some interesting proposals from some good people.

24th June 2024

In the Times today there is a letter published from various good sorts putting forward seven practical and easy-to-make steps for a better constitution.

One of the signatories, David Anderson, helpfully posted the letter on Twitter:

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Of course, changes to form and structure can only take us so far. The biggest problem of recent years has been an underlying lack of constitutionalism from government ministers (cheered and clapped by their political supporters). And until attitudes change, then rules will always be gamed or ignored and discretions abused.

But, there has to be a start somewhere to repair the damage, and these are interesting proposals.

The suggestions appear to be:

  • independent enforcement of a new ministerial code;

  • establishing new systems for managing conflicts of interest;
  • ditto, for lobbying;
  • improving regulation of post-government employment;
  • ensuring appointments to the Lords are only made on merit;
  • ensuring other public appointments are rigorous and transparent; and

  • strengthening the independence of the honours system, including by ending prime ministerial patronage.

The worthies aver that legislation is not necessary for most of these changes but a short bill would create the necessary powers and embed the independence of the ethics and integrity system.

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Some may say that these proposals are a little “apple pie” – but they would be a move in the right direction, the least that can be done.

Words like “ensuring” and “strengthening” are easy to type – and they are almost as easy to put at the start of a sterling bullet point.

But what is the actual check on misuse? Who in practice will have the power and authority to say “No” to a trespass by a minister of the crown (or by a former minister of the crown)?

The robustness of any regulatory system is not so much in the rules being themselves commendable, but in the rigorous enforcement of those rules and in the ready and realistic availability of sanctions for breach.

In a word: there needs to be tension.

And in our constitutional arrangements, as they stand, only parliament and the courts – rather than third party agencies – have the strength and the legitimacy to check the executive on an ongoing basis, and so for each of these seven laudable aims, one question is how they can be enforced against the government’s will by other strong and permanent elements of the state.

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Of majorities and “super-majorities”

21st June 2024

The greatest prize that the constitution of the United Kingdom can bestow is a substantial parliamentary majority at a general election.

With such a majority you can be confident to pass major legislation, not worry too much about backbench opposition, and even face down the House of Lords.

And so one of the most remarkable things about the current government – which brought about its own emphatic general election victory in December 2019 by (among other things) “Getting Brexit Done” is how little use it has made of this great prize.

Some people are suggesting that after this next general election (in less than two weeks now) the Conservative may now be out of government for a very long time. Who knows? But if so, that will be a lengthy period for the politically-right-of-centre to kick themselves for not having used their chance to drive through fundamental reforms when they had it.

Many people would find it difficult to name – other than Brexit – one fundamental reform which current government has driven through with primary legislation. The last few Queen’s and now King’s speeches have been limp affairs.

All that political and legislative power – as close to absolute power that our constitutional arrangements can admit – and nothing, or close to nothing.

Given that part of the reason for the Brexit referendum and for then “getting Brexit done” was for the political advantage of the Conservatives, it seems odd. What was the (party political) point? All that chaos and dislocation, for this?

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In the early 1990s the Conservatives lost their overall majority under John Major and then were out of office from 1997 – and in a long haul, and via a coalition, they eventually gained an overall majority only in 2015.

They promptly threw that away in 2017.

They then exploited an exceptional political situation in December 2019 and got that majority back, and then did nothing much with it.

And now that second chance at an overall majority is about to end.

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Over at Prospect – please click here to read – I have done a post on the fears of a Labour “super majority”.

But what Tories should fear is not the use of a “super majority” but just the effective use of a sustainable and substantial parliamentary majority.

And that can be quite the forceful thing, not that the outgoing government ever really cared to use it.

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