The UK and the US both seem to be losing the spirit of constitutionalism, the sense of a game-within-a-game. This is not a phenomenon limited to the political classes. It reflects a broader change in attitude within the body politic.
It is often suggested that the UK doesn’t have a constitution. That is incorrect. The UK has legislation, case law, conventions, traditions and precedents that cumulatively set out the framework by which it is constituted. That framework represents the boundaries within which the day-to-day game of politics is played.
The US also has legislation, case law, conventions, traditions and precedents that cumulatively set out the framework by which it is constituted. In addition, however, it has The Constitution, a written document that sets out the key principles and that, crucially, takes precedence over any other source of law. It is the basic, normative idea by means of which all other constitutional propositions gain their coherence and legitimacy. The UK equivalent is the doctrine of parliamentary sovereignty.
Lacking the boundaries denoted by a written constitutional document of supreme legal status, Britain is acutely reliant on the self-restraint of those occupying positions of power. As nineteenth-century prime minister William Gladstone noted, the British constitution presumes “more boldly than any other the good sense and good faith of those who work it.”
It is not just countries without written constitutions that are reliant on good faith however, as is implicit within Gladstone’s remark. Those with written constitutions can succumb to a state in which their key players are contemptuous of or oblivious to the framework within which the game is being played. The UK is somewhat insulated from breaches of the boundaries of the game by its explicit and longstanding insistence upon what political historian Peter Hennessy has termed the “good chap theory of government.” The US is somewhat insulated from such breaches by the prominence and centrality of its written constitution. Both countries, however, are vulnerable to what the Chinese term the problem of the bad emperor, that is an emperor who fails to exercise self-restraint in the absence of effective checks and balances.
That vulnerability is not isolated to those exercising high political office. It is situated within the broader culture, for the rule of law is first and foremost a cultural idea. A culture that baulks at the idea of norms, precedent and the restraints of tradition is vulnerable to the erosion of the rule of law. When the sole focus is the short-term win, we undermine the broader framework within which the game can be iterative. We lose sight of the game-within-the-game. It is right to identify and address that kind of deterioration when it happens at the highest levels of political office. It is also important, however, to put it in the context of a broader social malaise and to note that, for example, norms of procedural justice are being forsaken in favor of trial by Twitter, and subjective experience favored over empiricism and objectivity. In such a climate, it is hard, without hypocrisy, to insist that others respect the norms and traditions we have inherited that enable us to co-exist as a peaceful and coherent political community.
A failure to recognize the game-within-the-game was arguably central to Boris Johnson’s recent historic loss in the UK Supreme Court. A prime minister undoubtedly has the power to advise the monarch to prorogue parliament. But he can’t do so in a way that undermines the broader framework in which subsequent rounds of the game can be played. The Supreme Court looked at written records of what was taken into consideration in advising the Queen and found that these considerations pertained solely to the immediate interests of the government: “Nowhere is there a hint that the Prime Minister, in giving advice to Her Majesty, is more than simply the leader of the Government seeking to promote its own policies.” In taking such a narrow and short term approach, Boris Johnson failed in his constitutional responsibility, “to have regard to all relevant interests, including the interests of Parliament.” A scorched earth approach to achieving Brexit, which damages the idea of parliamentary sovereignty and undermines the delicate but central role of the Crown, is a failure to respect the game-within-the-game.
Given the twists and turns of Donald Trump’s presidency, one might be forgiven for thinking that he is totally unaware of the framework of norms and tradition within which his presidency is being played out. That is not so, though—for he is quick to invoke that framework when it operates in his own favor. The recent letter from the White House to Nancy Pelosi on the impeachment inquiry notes (in italics) that “All of this violates the Constitution, the rule of law and every past precedent.” As a New York Times article insists, “the Democrats need to honor basic fairness.” That is so not least because the approach taken will be relevant to all impeachment investigations to come. There are many rounds to this game.
Rules and tradition are iterative by necessity. Consider the voting procedure for confirmation hearings of judicial and executive branch nominees in the Senate. Traditionally, a 60-vote majority had been required, to ensure some level of bi-partisan support for nominees, but bi-partisan support for anything has long been in short supply in American politics, and so, in 2013, the Democrats, led by Harry Reid, invoked the so-called nuclear option to eliminate the 60-vote rule for all but Supreme Court nominees. That meant that people could be confirmed by the Senate with only 51 votes. In 2017, Senate Republicans, led by Mitch McConnell, expanded that rule change to include nominees to the Supreme Court. That facilitated the confirmation of Neil Gorsuch and was the applicable precedent two years later during the highly controversial appointment of Brett Kavanaugh.
Chuck Schumer has indicated that he regrets Harry Reid’s invocation of the nuclear option, but support for and opposition to the nuclear option has flip flopped back and forth between the parties over the years, depending on who would realize an immediate gain from it. Rules and procedure should not be set in stone. There must be room for development. But that development must not be undertaken purely with reference to the immediate round of the game. When it comes to norms and tradition, what goes around comes around. Every impeachment, every confirmation hearing, every prorogation of parliament, every withdrawal of troops supporting allies in a war zone, every deplatforming, every online mobbing, every curtailment of free speech— all these things have effects on subsequent rounds of the game. As you sow, so shall you reap.
The impulse to work for the short-term win is very strong—particularly, perhaps, in politics—but it is misguided. This is game theory — classic prisoner’s dilemma stuff. Counterintuitively, mutual cooperation, rather than pure self-interest, produces the best outcome for all of us. In politics, this is particularly true: the framework for cooperation should be bequeathed, intact, to generations to come.
A cavalier attitude to the preservation of that framework is nevertheless much in evidence in our broader culture. Some of the oldest norms that frame how we agree, disagree and agree to disagree are falling out of favor. One example I have highlighted before is the increasing reluctance of lawyers to represent causes they perceive to be unpopular. For instance, lawyers were reluctant to argue against same-sex marriage when the issue came before the US Supreme Court in 2015. Another example of this is the treatment meted out to Professor Ronald S. Sullivan Jr. of Harvard University, for representing Harvey Weinstein. My point here isn’t that same-sex marriage ought to be illegal, or that Harvey Weinstein is innocent—it’s that the principle that both sides of an argument must be heard before a court is foundational to the adversarial legal system. It will remain foundational long after same-sex marriage is completely uncontroversial and Harvey Weinstein is dead and gone. We erode this principle at our peril, because we don’t know what rounds of the game it will be needed for in the coming years and centuries.
This attitude among some lawyers is a worrying development. Fearless representation of an unpopular cause used to be intrinsic to the archetype of a noble lawyer. Think Atticus Finch’s defence of Tom Robinson, or John Adams’ defence of British soldiers facing murder charges after the Boston Massacre. What was once noble is now ignoble. This is the result of a widespread failure to look beyond the particular round of the game being played.
That failure seems to have been aggravated by a shift in law, politics, academia—and perhaps even science—towards a teleological approach. The point of these disciplines is increasingly understood to be to move society toward the short-term goals of particular political or even ideological viewpoints. Nowadays, one is often an activist first, a lawyer second; an activist first, a scholar second; an activist first, a scientist second. This leads to a Machiavellian attitude towards the broader framework of rules and norms that define these disciplines and render the game iterative.
We all have our visions of ways in which the world can be improved, and of the role that law, politics, academia and science can play in realizing those improvements. But we must always be mindful of the game-within-the-game. We must not endanger all our tomorrows for today’s win. To have any hope of holding a bad emperor to the spirit of constitutionalism, we must first hold ourselves to it.
This article originally appeared in Areo Magazine on November 22nd 2019