Some observations about Brexit (and the relevance of constitutional theory)

[WHAT FOLLOWS HAS BEEN LIGHTLY EDITED SINCE ITS ORIGINAL PUBLICATION, PRINCIPALLY TO CORRECT SOME TYPOS, BUT ALSO TO CLARIFY A COUPLE OF POINTS.  NOTHING OF SUBSTANCE, HOWEVER, HAS BEEN CHANGED.]

[CORRECTION RE MICHAEL GOVE:  AN ATTENTIVE READER HAS POINTED OUT THAT MICHAEL GOVE DID NOT GO TO ETON, AS I MISTAKENLY WROTE.  INDEED, HIS WIKIPEDIA BIOGRAPHY SUGGESTS AN UNUSUAL BACKGROUND FOR A TORY LUMINARY:  HE WAS ADOPTED, IN ABERDEEN, SCOTLAND, BY A LABOUR-SUPPORTING FAMILY, WHERE HE GREW UP.  HE WAS, APPARENTLY, EDUCATED IN A STATE SCHOOL BEFORE ATTENDING WHAT IS DESCRIBED AS "THE INDEPENDENT ROBERT GORDON'S COLLEGE" ON SCHOLARSHIP.  HE THEN WENT ON TO LADY MARGARET HALL, OXFORD, WHERE HE SERVED AS PRESIDENT OF THE OXFORD UNION.  FOR BETTER OR WORSE, IT APPEARS THAT HIS BID TO BECOME PRIME MINISTER IS LANGUISHING, THOUGH, GIVEN CURRENT BRITISH POLITICS, ONE SHOULDN'T MAKE ANY STRONG ASSUMPTIONS.]]

There is much to say about Brexit, of course.  But one thing worth mentioning is that the Tory Party has now apparently become more radically democratic than even California.  Let me explain:  One of the ways that one traditionally distinguished the UK from, say, California is that the former was the standard example of parliamentary sovereignty.  That is, decisions were to be made entirely and exclusively by Parliament, though the fiction of course was that the Queen was part of this insofar as she signed legislation.  But no monarch has vetoed legislation since 1708, and no one believes (save the author of the excellent play Charles III) that any monarch will try to reinvigorate this practice.  “Direct democracy” of the type we stereotypically associate with California was anathema.  As with the Madisonian vision of the national US constitution, it was all representative democracy.  And the Brits never got tangled up in the metaphysics of “popular sovereignty,” as Madison had to do (see especially Federalist 63). 

To be sure, there is some precedent for referenda in the UK, beginning with the 1975 referendum on joining the EU and then a 2011 vote on whether to abandon the dreadful practice of first-past-the-post single member districts.  (Alas, it lost, placing the US and the UK in a tie for the worst voting systems of any major Western countries—but I digress.)  But, as is the way with Brits, there was little by way of a worked-out theory.  Was parliamentary sovereignty really being abandoned in favor of a more robust popular sovereignty?  Can the truly sovereign public vote if and only if the Parliament takes the lead and authorizes a referendum, as was true with Brexit?  Or, as in California (and Maine and Ohio, among other American states), can the popular sovereign in effect wrest control away from the legislature--now conceived as consisting only of the mere agents of their principles, i.e., the voting public--through some process of initiative and referendum?  In Maine and Ohio, the electorate can, by petition, place laws passed by state legislatures (and signed by the governor) on the ballot for what I call “citizen review” (instead of “judicial review,” limited to questions of constitutionality rather than wisdom or conformity with the wishes of the true sovereign—i.e., the public.) 

In California, of course, the electorate can bring about brand new legislation and even constitutional amendments.  However, t's worth noting that the California Supreme Court has notably held, in Raven v. Dukmajian, that the initiative and referendum procedure is unavailing if proposed changes would be truly transformative.  In that case, the principle of “republican government” apparently requires that the legislature be able to engage in collective deliberation.  I.e., even in California, “popular sovereignty” is limited, certainly in theory and even, on at least one notable occasion, in practice.  I 

I think there’s a lot to be said for these different forms of direct democracy as a complement to our insistence on representative democracy at the national level.  But, the point is that decisions on how best to design a constitutional order, including the mixture of "representative" and "direct" democracy, requires extended and engaged discussion   The Brits stumbled along without, so far as I can see, anything that merits the term.  Mark Graber has just published a typically excellent piece on constitution-drafting in American high schools:   There is likely to be more debate about drafting a constitution for Madison High than there was with regard to the actual mechanics and implications of the Brexit vote.   

            So then comes along David Cameron, surely the most inept British "leader” since George III.  That is, George III and Lord North provoked a Revolution (or, in fact, a secessionist movement from the British Empire) that was completely unnecessary if only they had displayed any capacity for pragmatic accommodation following the Boston Tea Party.  Interestingly enough, the central theoretical issue was parliamentary sovereignty, rejected by the Americans and insisted upon by his Majesty King George III even though the colonists were delighted to pledge continued loyalty to him so long as he (or, more to the point, Parliament) really didn’t insist on running things in America.  Today we call this the British Commonwealth and think of Canada, Australia, and New Zealand, all of whom, quite inexplicably from an American perspective, profess undying devotion to her Majesty Queen Elizabeth II, who otherwise plays no role whatsoever in the political affairs of her loyal subjects.  Cameron thought it would solve his problems within the Tory coalition if he agreed to a referendum on continued membership in the EU, never imagining, of course, that he would lose.  Surprise, surprise.

            But what was the status of the referendum?  It was simply advisory.  There appears, on the surface at least, no plausible argument that Parliament is legally obligated to accept the advice.  That’s the difference between a binding referendum and a merely advisory one.  Moreover, as is now widely recognized, one can scarcely view the 52% of those voting for exit as either fully informed or, more to the point, a strong majority.  As to the first, it is now crystal clear that many of the arguments made for exit were in consummate bad faith, offered by opportunistic charlatans.  But, hey, what's politics without charlatans?  So then we turn to the sanctity of the 52%.  It is, to be sure, a majority, and were there a British Constitution saying that a simple majority is entitled to make binding decisions, come what may, then that would be that.  But, as we are often taught, there is no canonical written British Constitution, and I’d be quite stunned if people who know more about the conventions that make up that constitution than I do would say that a one vote margin is enough to create a binding obligation, even for an advisory referendum, on the part of the members of Parliament, even if, no doubt, a one-vote victory in Parliament is enough to constitute a binding law within the UK.  Why would Parliamentary opinion ever differ from the majority opinion of the UK?  Putting the various vagaries of electoral systems to one side, so that the UK is regularly governed by parliamentary majorities who in no plausible sense "represent" majority opinion, there is also the fact that Edmund  Burke is regarded as a role model by some with regard to the duty of the legislator to be something other than the mirror of his/her constituents if the latter's views are deemed contrary to some overarching view of the public interest or common good.  But Cameron and other Tories seem to be behaving as if Edmund Burke had never lived and that members of Parliament are simply expected to mirror the views of their constituents, however ill-informed or potentially dangerous. 

            One might think that the proper response to Brexit, given that almost no one seems eager to follow the actual rules and to invoke Article 50 that triggers the divorce, is to vote a fully deserved no-confidence in the current government and move to a brand new election, in which we could find out, with utter clarity, who supports Brexit and who does not.  Perhaps the winners would be a potential grand coalition of Europeanist Tories and Labourites claiming a mandate to keep Britain in the EU.  If, on the other hand, the anti-European crowd wins, then there will be a more genuine mandate for that view.

            I note, for what it is worth, that the Canadian Supreme Court, when authoring its notable decision on Quebec secession, said that Canada would indeed be under a duty to negotiate with Quebec over the terms of secession if two things were true:  First, a referendum would have to be held that clearly set out the central proposition at issue.  (Perhaps the Brexit vote complied with that:  “Leave” or “remain” does seem quite clear, at least from one perspective.)  But the opinion rejected what might be called “simple democracy.”  I.e., anything so freighted for the entire Canadian union required some supermajority, the actual dimensions of which were left unexpressed by the Canadian Court.  But consider that the US requires (I think unwisely) three-quarters of the states to amend the Constitution or, for that matter, 2/3 of the Senate to ratify a treaty.  I obviously believe the US constitution to be outrageously anti-democratic, so I’m not prepared to defend all of its supermajoritarian features.  But I’ve never described myself as a “pure majoritarian.”  We have to try to delineate the “Goldilocks points” between “pure majority rule” (and the ubiquitous fear of “tyranny of the majority”) and such limits on majority rule as lead, in effect, to what we have in the U.S., which is a tyranny of the minorities benefitted by the status quo that we seem unable to escape.

            The current British ruling class seems totally feckless, not only in terms of basic ability to engage in sagacious politics, but to theorize their way out of a paper bag with regard to the meaning of “democracy” in the modern world.  I should think that Eton would be hanging its head in shame at contributing Cameron and Johnson to the UK ruling elite.  (Perhaps Wharton should be doing the same vis-à-vis Donald Trump!) Quite obviously, if the UK does choose to exit the EU, it is altogether likely that the UK itself will be destroyed via Scottish and possibly even Northern Irish secession, given that both are far better off in the EU than, in effect, ruled by "little Englanders" who would be in full control of a post-EU UK.

            The Labour Party, of course, presents its own fascinating dilemmas.  Its parliamentary “leader” is completely and thoroughly repudiated by those he professes to lead in Parliament.  One might think that as an honorable man, he should resign.  But I gather he wants to rely on the support he may continue to possess from “members” of the Party, who by paying three pounds were entitled to vote in the leadership elections last year.  In both the UK and the US, we need to have serious discussions about what, if anything, it means to be a “member” of a political party and, consequently, who gets to choose those who profess to lead in the name of that party.  Donald Trump has engaged in a hostile takeover of the GOP.  And Bernie Sanders has no apparent loyalty to the Democratic Party; in announcing that he will "vote for" but, apparently, at least not yet "endorse," Hillary Clinton, he is no better than those pathetic Republicans who say that they will “vote for” Donald Trump but not “endorse him.”    

            Never has there been a more exciting time to be a political scientist, either at home or abroad.  But, of course, was are all aware of the alleged Chinese curse about living in interesting (or exciting) times.