The history of the constitution offers clues about the kind of Europe that Britain might hope to lead, rather than leaveby / September 15, 2016 / Leave a comment
Published in October 2016 issue of Prospect Magazine
In the constitutional tumult of 250 years ago, the time of Tom Paine, Edmund Burke and Thomas Jefferson, an idea was born: that the atom of sovereignty could be split, allowing a single nation to be forged from multiple states without those component parts being swallowed up by the new whole. This was nation-building without Leviathan—a new order indeed. Its architects called it federalism, from the Latin foedus (meaning covenant): new world government-by-compact to replace old world rulership-by-conquest.
In a Britain rendered anxious once again about its territorial coherence following June’s European Union referendum vote, in which England and Wales voted to leave the EU while Scotland and Northern Ireland voted to remain, federalism is offered by some as a solution that can hold the UK together while letting each of the four home nations plot its own path.
It won’t work. A single state with two different relationships with the EU? With two foreign policies and two different laws of citizenship? There is no such thing. Scotland and Northern Ireland can run their own domestic politics—health, education, justice, social security—but even in today’s complex and multipolar polities there are some things that only states can do. Home rule within a single state can be taken only so far, and both Scotland and Northern Ireland are perilously close to the limit already. There is a tipping point, when “devolution max” becomes “independence lite.”
In any event, federalism is an idea whose time has come—and gone. The leave vote was a clear sign that the British people did not want to be part of a federal Europe—just as the other European peoples had voted in previous referendums to reject further dilution of their sovereignty. Even our most Europhile governments have held back from adopting the full menu of integration, and the next items in preparation for that menu hold no appeal in Britain. Even if we had voted to stay we would have had nothing to do with any European army and as little as possible to do with a fiscal union.
In its birthplace, federalism is dying. The 21st-century United States would be not merely unrecognisable, but anathema, to the 18th-century federalists who founded it. They wanted a national government far more powerful than anything assembled under the Articles of Confederation (which the US Constitution replaced) but even the Constitution’s foremost advocates thought that the powers of the federal government would be “few and defined” whereas those remaining with the states would be “numerous and indefinite,” as James Madison put it in the Federalist No 45. Perhaps the erosion of federalism—in the US and also now in the EU—was baked in from the beginning, because the federal centre can never resist the temptation of over-reach.
The Federalist papers, authored principally by James Madison and Alexander Hamilton in the winter of 1787 and spring of 1788, remain not only the foremost guide to the meaning and, as lawyers put it, “original intent” of those who wrote the US Constitution: they are also one of the greatest works of constitutional theory in the English language. Their purpose was to persuade. Specifically, their aim was to coax the state of New York into ratifying the Constitution. They did this by identifying the powers to be delegated to the new federal government and by painstakingly justifying why each such power is appropriately exercised at that level and not left to the states. Why should the US have powers over national defence and security? Why should it have powers to tax? How could states be sure that such powers would be exercised cautiously, respecting the rights and interests of the states, and not recklessly or imperiously?
The Federalist’s answers lay much emphasis on devices that may have been new to the 1780s but which we have come to take for granted as core components of a functioning constitution: the separation of powers, limited legislative competence and judicial review. American government was nothing to fear, wrote Madison, because it would not be powerful. Not only was power divided between the executive and legislative branches (the presidency and the US Congress) but each branch of government would have the means to check and balance the other. Moreover, added Hamilton, both branches would be subject to the supervision of the Supreme Court, who would ensure that the limits of the Constitution were adhered to, thereby adding to the safeguards accorded to the states.
To anyone with a knowledge of 21st-century American government, what is most striking about reading the Federalist papers now—indeed, what is most striking about the text of the US Constitution itself—is how misleading they have become. Anyone using Madison as a map to navigate today’s American government would be utterly lost, for the modern reality is the very reverse of his dictum in Federalist No 45. It is central government whose powers are “numerous and indefinite”; those of the states have withered to the “few.”
This is not because Madison was disingenuous. It is because American federalism has failed. Or, at least, it has failed as a means of constraining the centralisation of power. Madison’s portrayal of what the US Constitution says was not wrong in Federalist No 45. The legislative powers conferred on the US Congress are indeed limited. Lest there be any doubt about that, the Tenth Amendment to the US Constitution (added in 1791) provides that “The powers not delegated to the United States by the Constitution…are reserved to the States respectively…” The constitutional scheme of American government is exactly as Madison described. Congress has only those powers as are conferred on it by the Constitution: all other powers remain with the states individually.
Yet, the shortlist of Congressional powers provided in Article 1 Section 8 of the US Constitution bears no relation to the vast panoply of power now wielded from Washington DC. There is no conferral in the Constitution of powers relating to education, housing or health, for example (so, under the Tenth Amendment, these powers should have remained with the states). Yet the federal government’s Department of Health and Human Services now has an annual budget of more than $1 trillion and, despite President Ronald Reagan’s pledge to abolish it, there has been a US Department of Education since 1979. Both health and education have been key issues in recent US presidential elections, despite the inconvenient fact that, constitutionally speaking, they are properly matters for the states and not for the federal government at all.
How has this been allowed to occur? First, the US Constitution uses a number of open-ended provisions to seek to constrain federal power. Congress has the power “to provide for the… general welfare of the United States,” for example. This provision has been used to justify congressional spending—and taxation—that extends far beyond the federal government’s strict law-making capabilities. Obamacare is just one example. Secondly, the Supreme Court has been remarkably lax about the interpretation of some of Congress’s powers. The commerce clause—that is, the constitutional power “to regulate commerce with foreign nations and among the several states”—has been interpreted since the 1940s as a power not only to regulate commerce between the states, but as a general power to regulate economic activity within each state. The Great Depression of the 1930s triggered President Franklin Roosevelt’s New Deal, which rebooted the American economy along avowedly national lines. Whereas the Supreme Court was initially critical, striking down aspects of Roosevelt’s plan as being in breach of the commerce clause, a presidential threat to “pack” the Court led to a sharp about-turn in American jurisprudence. It was to be more than 60 years before the Supreme Court would rely on the commerce clause again to invalidate congressional legislation. Thirdly, like all enduring written constitutions, the US Constitution includes a number of flexibility clauses that have allowed its scope to ebb and flow as the ages have required. In addition to its “enumerated” powers, Congress may make all laws “necessary and proper for carrying into execution” its powers. This provision, like the commerce clause, has been interpreted generously by the Supreme Court, further eroding the Constitution’s ability effectively to police the limits of federal power.
More interesting is why this has happened. Part of the answer has already been given. The early American economy crashed. The great depression collapsed not only the economy but the constitutional foundations on which it rested, including the federalists’ insistence that the federal government would be focused “principally on external objects, as war, peace, negotiation and foreign commerce” and that “the powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people” according to Federalist No 45.
“The federal US Constitution would eventually be used to eviscerate the states, and thus destroy the federal ideal”
Roosevelt’s reconstruction of the American economy may have been economically necessary, but it did greater damage to the fabric of the US Constitution than anything that predated it—the Civil War included. It was the New Deal, not Lincoln’s triumph 80 years earlier, which marked the decisive victory over those who had championed “states’ rights” as a principal hallmark of American constitutionalism. After the Second World War “states’ rights” became mired in the ugly and violent politics of race, being associated for a generation with Jim Crow segregation. But Reagan was elected on a platform of seeking to breathe fresh respectability into the idea of states’ rights. Two of his three nominees to the US Supreme Court, Justices Sandra Day O’Connor and the late Antonin Scalia, spent much of their time on the Court endeavouring to do just that, but their achievements were limited. The reach of American government into not only the economy but social policy continued to grow, not shrink. From abortion to gay marriage, from Obamacare to the American government’s controversial “no child left behind” and “every student succeeds” education policies, there is less and less for the states to do. Arizona cannot control its long border with Mexico even when the immigration controls it enacts are held to be consistent with federal law: it is pre-empted from doing so by the fact that Congress has “occupied the field.”
Scalia’s dissent on that issue was a magnificently defiant, but ultimately futile, essay on the once cherished but now quaint notion of state sovereignty. Indeed, some influential American policy-makers think now that states are little more than a relic from the past, and that it is clusters of cities and city-regions that are the economic powerhouses. If these clusters transcend state boundaries, so be it. Can the states survive? And can they survive with anything meaningful to do? These are now live questions in American politics.
The Jim Crow era casts a long shadow. It has obscured from modern view an honourable tradition of American political thought—anti-federalism. The anti-federalists of the 1780s thought that the move from the Articles of Confederation to the US Constitution was a mistake. They did not want the centralisation of power and the loss of state sovereignty that the new Constitution would entail. They distrusted both government and power; they wanted the former to be small and the latter to be closely guarded, kept as near to home as possible. They were localist, rural, non-commercial, small property holders and farmers. They considered themselves to be democrats. Their federalist opponents were more cosmopolitan, more urban, more commercial, often wealthier and considered that participation in strong central government was far preferable to purer forms of democracy. This sounds familiar: the contemporary divide between the “metropolitan liberal elite” and the rest is nothing new.
The anti-federalists lost: the Constitution was adopted. But the anti-federalists were right: the Constitution would eviscerate the states, would centralise power across a continent and would fail to constrain the extraordinary scope of American government, and thereby destroy the federal ideal.
If in Reagan’s day it was the right who were more concerned about this, it’s now progressive voices proclaiming the lost virtues of state sovereignty. With the Republican Party having adopted as their presidential candidate a man who can seem wilfully ignorant of the Constitution, perhaps this should not surprise us. After all, Donald Trump has said that, as president, he could get a foreign country to pay for a border wall, he could disregard the Bill of Rights and, that, despite having neither a plan nor a strategy, he could “replace Obamacare with something really good.” Trump’s sense of the reach of presidential power is truly terrifying.
In that respect, it may be argued, he has something in common with the last Republican President, George W Bush, who used the “war on terror” as a basis for a vast expansion of Washington’s executive power. Democrats turned to federalist theory, which allows for devolved power, as a source of protection, resisting co-operation with Bush’s new Department of Homeland Security. An avowedly liberal group of professors at Yale Law School named the new school of thought “uncooperative federalism.”
“Welcome to the dark side,” one of America’s leading scholars of states’ rights quipped, amused by the left’s conversion to what had been the domain of Reaganites for a generation or more. Perhaps the most notorious example of uncooperative federalism is the legalisation of marijuana in Colorado, despite possession of more than eight ounces of that drug being a federal offence. When nine out of every 10 law enforcement officers in the US are state or local employees (only 10 per cent being federal agents), one can see why Washington DC can find it difficult to enforce its laws without state co-operation.
If the US has become a unitary political order under a constitution that is federal in form, has the UK made the opposite move? To a degree, yes. But only to a degree. A century ago the British constitution elevated one rule above all others: that the Westminster parliament could make or unmake any law whatsoever, no court or tribunal having the power to override or set aside its legislation. This rule was named by the great Victorian jurist, AV Dicey. He called it the sovereignty of parliament.
Modern Britain is as different from Dicey’s portrayal of the constitution as modern-day America is from Madison’s. Parliament cannot make any law it likes. Even after Brexit, Westminster will be constrained by international law, by European human rights law and by the fact that it has devolved significant law-making power to Holyrood, Cardiff Bay and Stormont. Britain has become a multi-polar and multi-level polity. To understand British politics now, one has to comprehend much more than Westminster alone. The climax of this year’s EU referendum campaign was a striking example. In the showpiece Wembley debate a few days before the vote, the “Remain” camp fielded not a single Westminster politician. Its team comprised of Ruth Davidson MSP (leader of the Scottish Conservatives), Sadiq Khan (Mayor of London) and Frances O’Grady (General Secretary of the Trades Union Congress). Vote Leave fielded three MPs, but none who (at that stage) had ever served as a Cabinet Minister. Even half a decade ago, this would have been unthinkable.
The decentralisation of power and politics in the UK is an unambiguously good thing—except, perhaps, for lazy lobby correspondents who still think that political journalism consists of nothing more complex than reporting Commons tea-room gossip. That Nicola Sturgeon, the First Minister of Scotland, appears so frequently on the flagship Sunday morning politics television shows is healthy, even for those of us whose job it is to oppose her. That the Labour Party’s two most powerful politicians are away from Westminster—Khan in City Hall and Carwyn Jones in Wales—may be an indicator of the ill-health of the parliamentary party but, rather more importantly, it underscores the fact that in today’s Britain you do not have to be based in London SW1 to have a successful political career. That Theresa May has a chief of staff whose political idol is Joseph Chamberlain (May launched her short-lived campaign for the leadership of the Conservative Party in Chamberlain’s city of Birmingham, let us not forget) and that her first visit as prime minister was to Edinburgh speak to the strong sense the Tories have, too, that governing the country requires much more than merely commanding the House of Commons. The confidence of the Commons is a pre-requisite—a necessary first step—but on its own it is far from sufficient.
None of this means that the UK is a federal country. The atom of sovereignty may be split in Britain, but not along federal lines. It is much messier than that. We still speak of Dicey’s parliamentary sovereignty, but we no longer know what we mean by it. The EU referendum was an exercise not in parliamentary power (there was no majority for Brexit in either house) but in the sovereignty of the people. Scotland’s fate rested on 18th September 2014 in the hands not of the British people, but of people living in Scotland: that the independence referendum was lawful, however, required Westminster’s consent, as well as an Act of the Scottish Parliament. Where lies sovereignty in this mosaic? With the British people, with Scots, with Westminster, or—divided—with all of them?
These untidy and fluid arrangements, with the relations between the centre, the nations and the regions a matter of ongoing negotiation, are what makes our “union state,” neither federal nor unitary, so attractive—yet so difficult to pin down. Constitutional settlement it is not. Writing it all down has never been the British way. But the very fact that we must more or less permanently keep our governing arrangements under review adds to both the vibrancy and the poignancy of our politics. It requires shrewd management. The stability of Britain’s territorial order can never be taken for granted—certainly not while there are governments in some parts of these islands whose “dream” of breaking the country up “shall never die” (to quote from the title of Alex Salmond’s memoirs). Stewardship of the constitution is now a core component of British statesmanship. Our most successful political leaders are those whose grasp of this is sure and true.
Brexit is but the most recent challenge. At first sight the shock result of June’s referendum was pregnant with risk: not because of the verdict itself, but because of the starkness of the contrast of the result in Scotland and Northern Ireland when compared with that in England and Wales. All 32 of Scotland’s local authorities voted to remain, whereas all nine standard regions of England except London voted to leave. For a nationalist whose mission it is to convince Scots that England is a foreign country, this was gold dust.
Or so it seemed. Only a small few months later, and the picture is much changed. The spike in support for Scottish independence the SNP hoped Brexit would trigger has failed to materialise. That more than one million Scots voted to leave, despite there being no effective referendum campaign in Scotland, was already salutary. But when it is realised that the majority of these votes came from SNP supporters, one can see why Nicola Sturgeon spent the summer dampening down, and not ramping up, expectations that “indyref2” is just around the corner. The truth is, only a minority of Scots care all that much either way about EU membership. And even for those who do, there is plenty of opportunity, as well as threat, in Brexit.
For one thing, Brexit will mean yet another re-think of the devolution of powers in the UK. If agriculture, fisheries and environmental policy are no longer to be ruled from Brussels, it does not follow that it will fall to Westminster to “take back control” of them: in Scotland, Wales and Northern Ireland, it will be the devolved administrations that assume new powers in these fields, not Whitehall.
“Freed of federalism, a European Union of sovereign states is something Britain could lead, and not leave”
June’s referendum result can be interpreted in many ways, but of one thing we can be clear. It was a firm rejection of the federalist model for Europe. Britain has never been in the vanguard of European federalism.
It will be fascinating to watch the EU’s reaction to Brexit—the latest in a long line of crises to befall it. Its responses to the eurozone and migrant crises have been disastrous. The former resulted in unprecedented centralisation of fiscal control—perhaps the gravest single incursion into national sovereignty in the EU’s 58 years. The latter produced bewilderment, revealing chronic dysfunction in the relations between the EU and its member states. The impression given is that the only solution the EU has to offer is more EU—more centralisation of control—the federalists’ answer. The sole alternative, as in the migrant crisis, is confusion and inaction.
A decade ago, the EU was in search of a new constitution. Echoing Philadelphia in 1787, a constitutional convention was convened, and a Constitutional Treaty was produced. It failed: voters in two of the EU’s founding states rejected it in referendums in 2005. Scholars at the time bemoaned the fact that, unlike in the new world in the 18th century, Europe had no Madisons. But it wasn’t a Madisonian federalist the EU needed: it was a sceptical anti-federalist. A voice to remind Europe’s leaders of the importance of state sovereignty and of the basic political truth (which the Americans understood so well) that you can take government only as far as the people will allow. When a government’s reach outstrips what the people will accept authority to govern is lost.
The EU’s response to the failure of the Constitutional Treaty was typical of the institution’s stubborn refusal to respect this basic truth. After a short pause, the deal was repackaged, renamed the Lisbon Treaty, and adopted as European law. Were the lessons of the 2005 French and Dutch referendums learnt? They were not: Europe’s leaders marched on, despite the fact that the French and Dutch people had told them not to. The demands of the project—ever closer union—overrode the brake the people had tried to apply. When Denmark rejected the Maastricht Treaty in a referendum in 1992 it did not stop the European project: it led merely to a few tweaks and to Denmark being asked the question again (having got the answer wrong the first time around). Likewise in Ireland in 2001.
This is the European context in which the UK’s decision to leave the EU should be seen. The result on 23rd June was not a one-off, but the latest in a long line of opportunities taken by voters in diverse member states to say to their leaders that the European project does not have their consent.
The tragedy is that it did not have to be like this. Had the federalists listened, whether in 1992, 2001 or 2005, June’s referendum would not even have taken place, never mind delivered its devastating result. Had the EU developed after Maastricht along anti-federalist lines, it would not have achieved ever closer union, but it would have delivered prosperity and stability across the continent and, moreover, it would have endured. Imagine an EU law that said this: “Each state retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not…expressly delegated.” Not my words, but those of the 1781 Articles of Confederation—the arrangements the anti-federalists wanted to keep instead of surrendering state sovereignty to the US Constitution. No one reads the Articles of Confederation any more. But we should. They are beautiful.
And they are what the EU needs. They talk of states that “severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other.” They acknowledge that free movement is necessary “to secure and perpetuate mutual friendship” and they provide that “the people of each state shall have free ingress and regress to and from any other state, and shall enjoy therein all the privileges of trade and commerce.”
An EU along these lines would be one the UK would be leading, not leaving. It would be a union of sovereign states—a confederation forged in friendship and mutual self-interest, not a federal superstructure founded on the coercive rule of a supranational law no one ever voted for. Europe has much to learn from the American constitutional experience. But for half a century we have been looking in the wrong place and drawing the wrong conclusions. It’s not federalism Europe needs: it’s a good old-fashioned, democratic dose of anti-federalism.