Comment by dofm
17 days ago
One of the things I find really interesting as a Brit is hard to put into words:
Americans tell us that we don't have a constitution — when we do, it is just not wholly written down. (It is in part).
We have a constitution that is flexible and precedent-based, but pretty stable, and it has emerged on top of the bits that are written down, and has amended them over time (for example, it is built in part on Magna Carta, but only two or three of its principles remain in law.) Notably a bit more of it got written when we agreed to be bound by the ECHR, but that was mostly absorbed into our understanding.
It has taken us hundreds of years to get to this stability, and it is defended from attack from pretty much all sides; every government risks changing it and there is pushback each time, because you can't govern if there aren't rules. The rules are precedent and convention, and there are various authorities and archives that are consulted to work out what they are if people think they are at risk.
We are regularly told by Americans that this is an intolerable thing; we need a written constitution or we can't know what our rights are!
But those same Americans, right now, are engaged in exactly this process. You have a set of written rules that give Congress power over things, and you are currently evolving a set of precedents that suggest that the executive can simply wander past them and Congress somehow shows deference or refuses to assert its power in some situations.
You're right at the start of building an uncodified constitution on top of the old one just as we did on top of Magna Carta.
It's not entirely new to Trump; every President in my lifetime has pushed on this except maybe Carter. And sometimes they push back (Roe v. Wade was part of this uncodified constitution and probably needed to be a written amendment.)
It could work out but it's important to understand that is what you're doing. And it's not just Unitary Executive theory or presidential immunity; the emergence of the Supreme Court's "shadow docket" is emblematic of the same process.
(Am British expat, btw fwiw)
We had Boris Johnson and Liz Truss; the fact they happened at all demonstrates our system still has vulnerabilities.
I’m no fan of venerating a written constitution either, but I have an anxiety about parliamentary-sovereignty: events like Brexit and BoJo demonstrate a need for something to bind parliament, lest we get a 21st century Oswald Mosley. Right now we have… decorum and monarchy: a firewall made of damp serviettes.
Prior to Brexit, I feel there was some (if vague) kind of accountability from parliament to the EU - which is why/how Brexit revealed the fault-line in the Tories that split the proto-fash types from the amoral-business types to give us Reform/Restore today, and they’re uncomfortably popular. So what I’m saying is that Brexit weakened our accountability mechanisms more than people realize as the national-conversation focused only on economic impact and immigration.
In summary: do not convince yourself that “it cannot happen here”; nor that current safeguards (if any) are sufficient.
Oh I am not convincing myself at all. Like I say, every government ultimately ends up risking it and getting yanked back by the Commons (or the Lords in the case of e.g. 42 day detention of terror suspects, various other bad overconfident schemes like ID cards).
It's a pattern, a cycle. It is always under a sort of measured level of threat. But it is largely stable because at any time the party in power always has an iconoclast (Heseltine, Cook, Davies etc.) who is willing to get in the way, and there is essentially a Commons (or Lords) tradition of making sure that person gets heard.
And because the Prime Minister isn't really that special — just the loudest voice in his party, subject to its back-stabbing — there is a pattern to their failure, too.
(There is a bit of a concern that we're getting too used to them not lasting more than a couple of years, but I do get rather frustrated at the both-sidesing that is including Starmer with a run of utter inadequates from the other side)
Again the point I was making was only that the USA is getting a little further down the line towards wrapping up the clarity of the written Constitution with a layer of yes-but convention... It gets a lot more difficult from here.
There is a narrow window to pull it back, but as much as I think they are for the rule of law, I don't think the Democrats, even with potential rule-of-law-asshole injections like George Conway, are truly prepared to hew that close to the Constitution themselves.