Monday, August 19, 2019

Brexit, Boris, Trump, and the Relative Virtues and Vices of Constitutional Entrenchment

by Michael C. Dorf

In both the US and the UK, serious people now worry that the leaders of government could attempt to retain power after being voted out of office. DoL blogger Neil Buchanan has repeatedly explained (e.g., here) why we have reason to fear that Donald Trump could lose the 2020 election yet receive enough support from Republicans in Congress and elsewhere to claim a fig leaf of legitimacy for staying on while claiming voter fraud or the like. Meanwhile, last week the NY Times reported on a looming scenario in which Boris Johnson could lose a parliamentary vote of no confidence yet defy convention and the tacit assumption behind the Fixed-Term Parliaments Act that a sitting PM should yield power to a new PM capable of forming a government pending a new general election; instead, Johnson might call a new election but remain in office pending its outcome, even after the no-confidence vote. And all of that would happen as the UK crashed out of the EU.

The Times article points to a similarity between the US and the UK, indeed, to a similarity among all constitutional democracy: given the impossibility of anticipating and constraining every opportunity for amoral would-be tyrants to seek advantage, no politico-legal system can operate without some degree of good faith by a critical mass of key officials. Perhaps in the US that would mean the Supreme Court and in the UK the Queen stepping in to block the de facto coups of Trump and Johnson, respectively.

However, in both countries there are reasons to doubt that the deus ex machine would come to the rescue: here the Republican-majority Court's willingness to appear (some might say to be) partisan could lead to invocation of the political question doctrine (see this past Term's political gerrymandering case) or some substantive basis (see Bush v. Gore) for sustaining Trump's coup. In the UK, the Queen might well adhere to the longstanding norm of royal political neutrality, even as Johnson was flouting other longstanding democratic norms.

I agree with the observation that democracy everywhere depends on norms and some measure of good faith. But just as the similarities in appearance, repugnance, and buffoonery between Trump and Johnson mask key differences (as explored recently by John Oliver), so too the differences between the US and the UK may be important in how and perhaps even whether each country survives an attempted coup by its respective clown-tyrant.
I'll begin by setting aside a commonly invoked account of the essential differences between the US and the UK. While the US has a written Constitution, it is sometimes said that the UK has an unwritten one. That is not entirely accurate. What people mean by the UK's "unwritten constitution" is a collection of longstanding practices and written laws that are understood to be foundational. What distinguishes the UK's constitution from the US Constitution and from constitutions in nearly all other constitutional democracies is that the UK constitution is not formally collected into a single document and is in principle easy to change.

A.V. Dicey, the great late 19th/early 20th century theorist of English/British/UK constitutionalism, described a system of parliamentary supremacy in which the power to make or unmake any law rested in parliament, by which he meant the King or Queen and both the House of Lords and the House of Commons. Recognizing some contestation around the edges, that more or less remains a fair description today, but both the monarch and the Lords have seen their power eroded over time, so that if push comes to shove, now the House of Commons gets its way and does so by a simple majority.

Legislative supremacy in what is at the end of the day essentially a unicameral parliamentary system means that in principle the constitution of the UK can be changed by a simple and relatively small electoral swing if the majority are sufficiently determined to act. Contrast that system with the sclerotic system in the US, in which the Constitution is entrenched against change by the requirement of 2/3 majorities in each house of Congress and ratification by 3/4 of state legislatures. In the US, a relatively small minority can block popular constitutional change. And even very popular ordinary legislation can be blocked by multiple so-called veto-gates (bicameralism, the Senate cloture rule, presidential veto power) and is then reviewable on many grounds by our Supreme Court; by contrast, UK courts rarely issue declarations of incompatibility, they are only authorized to do so for violations of the Human Rights Act and the European Convention on Human Rights, and even when they do, their judgments have no effect unless ratified by parliament.

Accordingly, the UK is substantially more majoritarian than the US. Other things being equal, that ought to make the UK susceptible to larger shifts in policy between one government and another. A simple election means that Tories can undo Labour policies or vice-versa, whereas in the US, staggered terms for the Senate and separation of powers more broadly make the ship of state harder to turn.

At least that's the way the systems differ in principle. But at the end of the day, norms may in fact be more important than formal structures. In principle, parliament could simply cancel Brexit by ordinary legislation. Indeed, the original authorization for the Brexit referendum did not guarantee Brexit absent further parliamentary action. But again, because the Queen in Parliament (and thus effectively the House of Commons) can make any law, a simple majority vote is all it would take to prevent Brexit.

That won't happen, partly for political reasons (any Tory MPs who vote to cancel Brexit would face the wrath of pro-Brexit voters) but also because of the extra-legal norm favoring majoritarianism. The UK has not only a more majoritarian formal constitutional structure than does the US; it has stronger informal majoritarian norms that constrain even strongly majoritarian institutions like the House of Commons.

To an American, that formulation might sound odd. We are accustomed to thinking about counter-majoritarian institutions (like the Supreme Court) as the means of constraining majoritarian institutions. But we shouldn't think it that odd. John Hart Ely rationalized the ostensibly countermajoritarian work of the Warren Court as representation-reinforcing. Although using a different mechanism, we can think of Ely's theory of judicial review as a kind of democratic check on ostensibly majoritarian institutions.

Moreover, we might even take inspiration from the UK example. Some MPs who oppose Brexit on policy grounds nonetheless feel compelled to make it happen because they feel constrained by the democratic norm to respect the referendum. Imagine if American politicians were guided by a similar norm, so that, say, presidential candidates who lost the popular vote by nearly 3 million votes conceded to the winner of the popular vote. Or imagine if a presidential candidate who lost the popular vote and who clearly would have lost the electoral college vote but for a confusing ballot design conceded. Strong extra-constitutional democratic norms can be harmful, as with Brexit, but as this painful little thought experiment shows, in other circumstances they could do some considerable good.