If, however, the mythic figures sit atop their dueling perches, guarding the entry point to America’s political psyche, inside the sanctum lies the most sacred relic of all: the US Constitution. Yet that relic is not the guarantor of liberties that most Americans imagine. Rather, it’s the legal scaffolding of an elite-led counter-revolution — the same one that today lets tech billionaires drop power-guzzling data centers into communities that never asked for them.

In individualistic terms, America remains the most economically “free” country in the world, but also among the most atomized, alienated and unequal. Most Americans don’t realize, however, that it didn’t have to be this way. After all, how many have ever heard of Shays’s Rebellion — a massive class revolt led by ex-revolutionary soldiers, one that almost toppled the government and could have saved working people from 230-plus years of Constitutional tyranny?

To be clear, 1776 is nothing to be ashamed of. Indeed, the Revolution was arguably the greatest democratic uprising in world history. Much of that national mythos is worth preserving. Three cheers for the war against the Brits. Yet if the struggles from Lexington to Yorktown remain the quintessential Anglo-liberal uprising, a genuine David-and-Goliath triumph, selling that narrative has meant omitting what happened to the common foot soldiers of the Revolution itself.

The glorified writers of the Federalist Papers — John Jay, Alexander Hamilton, and James Madison — explicitly didn’t want mass democracy. During the Constitutional Convention, launched in spring 1787 and convened meant to hammer out the document’s details, Hamilton pushed for a president serving “during good behaviour”. In other words: an elected king enthroned for life, much like the Supreme Court. Hamilton and his friends also pushed for a congressional veto on all state legislation, in effect allowing for total national and elite-led control of local government. That was shadowed by other elitist institutions, notably the Senate and the Electoral College. Voting, too, was to be the preserve of the propertied few: discounting women, slaves, and poor white men, the franchise in the early US encompassed just 6% of the population.

The true heroes of the early US, then, were the Anti-Federalists. An everyman group of farmers, ex-soldiers, and small property holders — none of them have ever received Broadway hagiographies or had their faces plastered on dollar bills. Yet they were the families who fought and died for the Revolution, risking their lives to overthrow the British and who now expected government both by and for the people.

More from this author

America was never inclusive

By B. Duncan Moench

How did the wealthy merchants and bankers pushing for the Constitution respond? By economically destroying the little guy. Due to governmental dysfunction — and the fact the poor and propertyless were locked out of voting — a large percentage of veterans remained unpaid for years after the redcoats left. Even worse, many had mortgaged their homes and farms to finance the fight for independence, with the government promising repayment that never materialized. Little wonder these men rose up, under the former colonel Daniel Shays, to resist the injustices of debtors’ prisons and restore what they saw as the Revolution’s democratic spirit.

Not that Shays himself was some permanent rabble-rouser. Born not far from Boston, he fought at Lexington, Bunker Hill, and Saratoga, was wounded in action, and handed a ceremonial sword by none other than the Marquis de Lafayette. It’s a sword Shays was later forced to sell to cover his debts. By the autumn of 1786, the veterans and common folk of western Massachusetts had had enough. Armed bands of farmers — mostly veterans — marched on the county courthouses and shut them down by force, reasoning that a court that can’t convene also can’t foreclose on their neighbors and friends.

And so, for a few months, these insurgents effectively governed the western half of Massachusetts. The Commonwealth’s authority simply evaporated under popular pressure. Then, in January 1787, Shays led roughly 1,500 men against the federal arsenal at Springfield, aiming to seize its weapons and turn them against the state governments, which they believed had been captured by wealthy coastal merchants and big farmers. They never reached the gates. A militia — privately financed by a syndicate of Boston merchants, since the bankrupt state couldn’t afford one — met them with literal cannon fire. Four Shaysites fell dead in the snow. Upon seeing the ruthlessness with which these hired guns pursued them, some of the Shaysites are said to have died from fright. The rest scattered, before being hunted across the hills through a brutal winter.

What would Shays have done if he and his rebels had been able to take the arsenal at Springfield? In an interview with the Massachusetts Centinel, the colonel suggested that, once the rebels were armed to the teeth, they planned “to march directly to Boston, plunder it, and then destroy the nest of devils, who by their influence, make the Court enact what they please”. Given the scale of the betrayal of these revolutionary soldiers — and seeing how American business have dominated the country’s government since — it’s hard to argue against him.

More from this author

War is being hypernormalised

By B. Duncan Moench

In the end, though, the country’s greatest ever class rebellion ended in failure. Shays himself was eventually pardoned, though would later die in drunken poverty. But the fright it put into the propertied classes endured. Word of the uprising reached Mount Vernon, and a rattled George Washington was coaxed into running for the presidency. Meanwhile, the rebellion’s shock directly spurred the wealthy establishment’s drive for the new constitutional order, replacing the radically localist politics of the revolutionary era with a system designed to stabilize property relations and restrain popular democracy.

It worked. All the attention on slavery and race in American history overshadows the essential fact that, in most cases, the poor and propertyless were not allowed to vote until the Jacksonian era, some 40 years after the Constitution’s passage. Nor does the document’s malign influence, or the resonance of Shays’s Rebellion, end there. Far from being a quaint historical curiosity, the revolt’s failure was both the spur for today’s legal order and the decisive turning point in American political development: with the Constitution amounting to, essentially, an elite-led counter-revolution where the democratic energies of 1776 were deliberately caged to protect bankers, creditors, and commercial elites from popular pressure. The Presidency, the Senate, the Supreme Court — all these elements were explicitly designed to curb democratic energies and ensure that property holders were protected from the “factionalism” of the “mob”.

The anti-majoritarian architecture built in 1789 continues to imprison American governance to this day. Beside the absurdity of the Supreme Court’s Citizens United decision — which allows money to be treated as legally protected “speech” — nothing illustrates this better than the data-center boom. No one except tech billionaires wants these things: certainly not in their own communities. And yet they pop up everywhere, including the now-notorious “Stratos Project” in northern Utah, funded by investor Kevin O’Leary, and which would immediately require more power than the entire state uses in a year. Just like the spread of Walmart in earlier decades, often against the will of the communities the shopping centers invaded, the spread of data centers is enabled by precisely the tyranny of property holders the Constitution was built to make possible.

The shadow of the nation’s Constitutional counter-revolution extends to nearly all the great economic problems of American life. The same logic that crushed the Shaysites — creditor over debtor; centralized elite over localist self-rule; property rights over political rights — runs through American political economy to this day, from the Wall Street bailouts after 2008, to wars fought for corporate interests, to the relentless algorithmic extraction of the gig economy.

If the civics-touting Right remains in hock to the Constitution, the Left’s critique isn’t much better either. For all the supposed radicalism of the 1619 Project, Nikole Hannah-Jones’ undertaking was merely a continuation of the trend among elite storytellers and academicians who ignore class entirely, and instead seek to turn the Founding into a different kind of myth useful to their political project. For Hannah-Jones and rich readers of the New York Times, certainly, it’s useful to make race and gender — not class — the Founding’s dominant feature.

How, then, might we build a better tomorrow? In the first place, by recognizing that the Constitution wasn’t totally hopeless. The Bill of Rights, of course not pushed by Hamilton, Madison and the other Federalists, enshrined John Locke’s idea of limited government into law, and opened an eventual pathway for liberal democracy globally. In other words, then, the future rests not on the DSA socialism of Zohran Mamdani, nor on the Sanderistas, but on returning to the localist tradition Shays  tried to defend. It’s a tradition Anti-Federalists sought to preserve as much as possible: hence their insistence on an extensive list of governmental “thou shalt nots” throughout the Bill of Rights. Yet if this exists entirely in the realm of what political theorists call “negative rights” — in other words freedom from rather than freedom to — this is ultimately a mischaracterization of the Anti-Federalists and their politics. Without our Anti-Federalist strand, the fight to end property restrictions on the right to vote, which propelled Andrew Jackson into office, would never have been completed. Franklin Roosevelt’s New Deal probably wouldn’t have been possible either.

If, in other words, fighting the Constitution means encouraging “localism”, that’s less abstract than the term implies. For instance, it would mean turning antitrust law, mostly dormant for two generations, against the tech monopolies, just as trustbusters once stymied the railroad barons. It would also mean encouraging right-to-repair laws, letting people own the machines they buy outright, while keeping banks accountable to the towns they lend in — instead of hands-off regulation-haven states like Delaware.

Suggested Reading

American democracy was born in feudal Europe

By Leighton Woodhouse

More generally, reviving the American Revolution means reducing the power of the national government over the states: both the intention of the 1776 revolution and the only way a true democracy can function. Recall, again, that the revolutionaries were committed to small-“r” republican governance, which meant as many people as possible participating actively and often in the political process. Pretending that the system we have now is a “democracy” in line with the intentions of our 1776 founding is in itself a betrayal.

The time for change, in short, is now. Tech monopolies and their ruthless gaming of the legal system are gutting whatever’s left of the Revolution’s democratic spirit. The trillionaire class that AI’s rise will produce is the final boss stage of the elite-led counter-revolution that began in 1787. As we speak, the elite are exploiting the supremacy of property law provided by the Constitution to ensure technology serves no one but their makers, keeping the few rich and the many surveilled. Technology itself, though, remains neutral. The material conditions of the present — remote work, decentralized production, drone-assisted agriculture — may, practically for the first time since the Revolution itself, revive the localist, democratic spirit the Constitution was designed to suppress.

Whether this happens depends on something the localists have been trying to tell us for 40 years. In his 1985 book Habits of the Heart, Robert Bellah warned that a republic organized around private accumulation forgets the language of the common good — and loses the civic muscles self-government actually runs on. To paraphrase Michael Sandel, we have traded the citizen, who helps govern the forces that rule his life, for the consumer, who is merely ignored by them. That trade, in a sense, is the counter-revolution’s deepest victory: a whole people taught to mistake being unbothered for being “free”. The key question now is whether Americans can recognize their own revolutionary inheritance before the counter-revolution completes itself and all working-class children are illiterate, device-addicted serfs who own nothing and “like it”.

Startlingly, Lammy’s proposals go even further than the recommendations of Sir Brian Leveson in his controversial — and widely criticized — report on the future of the criminal courts. Where Leveson recommended removing the right to a jury trial for offenses with sentences of less than three years, Lammy’s proposals would restrict that right only to cases of rape, murder and manslaughter, vaguely accompanied by so-called “public interest” cases. While Leveson proposed that Crown Court cases not tried by juries would still have a judge and two magistrates, meanwhile, the new proposals suggest cases could be tried by single judges.

But even if the Government, as seems increasingly likely, retreats from Lammy’s scheme a return to Leveson’s plans is no victory. Consider, first, the legal principle supposedly underpinning jury-free trials. Both Leveson and Lammy claim that there is no “right” to a jury trial. Yet this assertion has been expertly dismantled by the criminal barrister and academic Alex Benn. Leveson, for his part, takes an approach to the concept of “constitutional” rights that has no place in the English legal tradition: in uncritically adopting Lord Justice Auld’s definition of “an entrenched right overriding all other legal instruments”, he sets the bar far too high.

More from this author

Starmer’s Chagos deal risks his life’s work

By Harry Gillow

As Benn explains, in a common law system without a codified constitution, “constitutionality” must mean more than Leveson’s narrow approach. Rather, it also represents the “fundamental values” of a country’s legal and social system. By this measure, jury trials are undoubtedly constitutional, with a pedigree stretching back even before Magna Carta. Levison notes that there is no right to a jury trial under Article 6 of the ECHR. But that is tilting at a straw man: as even Leveson concedes, there could hardly be such a right in an international system covering disparate legal systems with no history of jury trial.

Not that the Government seems to care about venerable historical principles. It’s especially galling, here, that Lammy’s justification for dumping jury trials is something as banal as a lack of capacity in criminal courts. Yes, the system is in crisis — years of underfunding, and the crippling Covid backlog, has left it on the verge of collapse. But as Leveson himself notes, 2023-4 spending on jury costs was a mere £36 million, a fraction of the total court budget of £2.5 billion. There’s another issue here too. As Benn notes, the justification of crisis implies that jury restrictions might be undone once the worst has passed. But there is no indication of that in Lammy’s proposals, and little realistic hope that a future government would devote the cash and inconvenience of bringing back juries.

More fundamentally, and as Leveson’s focus on the ECHR implies, the Government’s proposals give a depressing insight into what it actually thinks about the law — preferring to obsess over the dry, narrow letter above its spirit. When, for instance, the question involves surrendering British territory at the whim of a hostile court? Downing Street cheerfully hands over billions to smooth the deal. When it’s being asked to accept urgently needed recommendations on nuclear power, changes that might just stop us from tipping into a full-blown energy crisis? The government is far too worried about its international obligations.

Yet when it comes to abrogating cherished British rights — polled in 2011, the public ranked jury trials only second to (of course) the NHS as top choices for protection in a Bill of Rights — Starmer and his ministers are utterly insouciant. The unfortunate impression is of ministers far more concerned with the niceties of internationalism and bien-pensant progressive causes than ancient and vital traditions.

And they really are vital. Contrary to what some (often well-heeled) lawyers argue, the ability of juries to reach inconsistent verdicts is a feature, not a bug, of the system. It is the epitome of a model that prioritizes acquitting the innocent over condemning the guilty, where the very point of the process is to provide a safety valve for when things just feel wrong. As Leveson noted from Lammy’s own review into the treatment of minorities by the criminal justice system, jury verdicts are one area apparently unaffected by ethnicity. As any civil barrister will tell you, the identity and attitude of a particular judge can have a dramatic effect on the outcome of a case: the very fact that jury trials involve 12 random people avoids that precise problem.

The point is not — as sometimes argued — that judges from one background cannot sympathize with another. Nor is it that jury trials always reach the right verdict; there are undoubtedly cases where they don’t. Any jury system like our own will be prone to perverse outcomes, like the acquittal of the Colston protestors in Bristol. It is, rather, that it provides not only a vital safeguard against state power and dubious prosecutions, but also a superb mechanism for ensuring broad acceptance of an outcome across society. It isn’t some bewigged and distant judge descending from his chambers to condemn you, but 12 of your peers, plucked from obscurity to reach a verdict before returning to their workaday lives. It is, in a very real sense, society’s verdict — not the system’s.

Suggested reading

Britain’s free speech shame

By Adam King

It’s here, especially, that you might wonder if the Government has thought its plans through. We live in an age of judicial politicization, with the increasingly judiciary dragged into political matters — dragged, more often than not, by politicians reluctant to actually make decisions themselves. And yet this government, nominally so committed to the protection of the judiciary, led by a former director of prosecutions, sees no issue with individual judges being required to give their reasoned verdicts for acquittal or conviction. Nor is the carve out for “public interest” cases any answer. Who, for example, will decide what qualifies, and how will the Government answer the inevitable charges of two-tier justice when certain cases are granted a jury while comparable ones aren’t?

Either way, restricting juries represents a shift towards an increasingly technocratic and legalistic state, taking one of the fundamental questions in society — who gets to decide innocence and guilt — ever more out of the hands of the general population. It’s all too easy, here, to see the problems that might arise from removing, in the words of the judge and legal philosopher Lord Devlin, the “protection against laws which the ordinary man may regard as harsh and oppressive”. For Devlin, the “little parliament” that each jury represented was central to British democracy: he could not “see the one dying and the other surviving”.

And certainly, if, as Devlin states, the first objective of any would-be dictator would be to neuter Parliament, the next would be to diminish trial by jury. “For no tyrant,” as Devlin warned, “could afford to leave a subject’s freedom in the hands of twelve of his countrymen.” Indeed, the justifiable outrage at certain overzealous hate-speech prosecutions only shows that we can’t simply rely on the law being just. Juries, for close to 1,000 years, provide a key protection against the excesses of a state that will, by its nature, rarely be primarily concerned about the law’s effect on an individual. The security of a jury trial can be the difference between ruin and redemption. And one day, you might need 12 of your peers to judge you too.

The Protestant Reformation was ignited when accepted Catholic practices were carried to extremes that became abusive — most notably simony (selling church offices) and indulgences (pardons purchased to get out of purgatory), neither of which had any basis in scripture. Once begun, the Reformation was seized upon and accelerated by ambitious German princes who sought to free themselves from the financial and political influence of the pope. The Catholic Church eventually stopped selling bishoprics and forgiveness, but not before the fabric of European civilization had been torn asunder.

Much as 16th-century Europe was anchored by respect for religious institutions, the United States is today united by respect for its Constitution, a sacred document to which citizens, civil servants, and the military all regularly swear allegiance. Unlike the constitutions of France or Germany, which have changed with the political seasons, the American Constitution has functioned effectively for nearly 250 years.

Yet nowhere does the Constitution give any one of 677 unelected district-court judges the authority to block the policies of an elected president, as they’ve been doing regularly for the past decade by issuing nationwide injunctions. These injunctions cover everyone in the country, not just those who brought the case. Yet the use of sweeping injunctions is a manufactured practice created by legislation, but not found in the Constitution. And like simony and the sale of indulgences, it has been abused by excessive use. It needs to stop.

Do not scoff at the possibility of a constitutional reformation. For centuries, the pope was a powerful and respected figure throughout Europe, until one day he wasn’t. Today our judiciary is powerful, but there is a large element of faith and mystery upholding respect for the Supreme Court. The justices reside in a building designed to resemble a Roman temple. They appear in costumes resembling the robes of a high priest and inform us that, like oracles, only they are qualified to decipher the constitution. As with the papacy, faith in the Supreme Court will quickly evaporate if it is seen to endorse the widespread abuse of contrived practices not found in scripture.

The facts speak for themselves. Issuing nationwide injunctions to block executive orders has become a routine partisan tool. In Donald Trump’s first term, 64 nationwide injunctions were issued against him, of which 92% were granted by Democrat-appointed judges. In the first five months of his second term, 92% were granted have been issued against him — the overwhelming majority coming from just five judicial districts, all of which are located in liberal cities such as San Francisco and Boston. In many recent cases, the terms “arbitrary and capricious” were used to block any executive order the judge disagreed with, including policies many Americans strongly support such as deporting illegal aliens and reducing government waste.

Conservatives have played the same game: Republican judges issued all 14 of the injunctions against President Biden. As a result of all this, citizens are beginning to regard some judges as unelected politicians in robes rather than unbiased arbiters of justice. That should worry all Americans.

Last week, in a 6-3 decision, the Supreme Court dismissed three nationwide injunctions against President Trump. The significance of the verdict is not that it allowed his efforts to reinterpret birthright citizenship to proceed. That issue will return to the lower courts and be decided later. This was a landmark decision because it concluded that Congress never granted trial judges the authority to issue broad relief to individuals who had not actually brought a case before their court.

In the majority opinion, Justice Amy Coney Barrett indicated that nationwide injunctions do not align with accepted practice in either the United States or Britain. She wrote: “The universal injunction was conspicuously nonexistent for most of our nation’s history… Its absence from 18th and 19th century equity practice settles the question of judicial authority.”

It’s worth noting that the Supreme Court looked only at legislation governing court procedures. It did not address the fundamental constitutionality of nationwide injunctions. Therefore, Congress could quite easily pass new legislation reversing this decision.

Regrettably, the decision also undermined the credibility of the court’s three liberal justices. During the Biden administration, when Republican judges issued nationwide injunctions, Justice Elena Kagan stated: “It just can’t be right that one district judge can stop a national policy in its tracks.” Yet last week she voted against ending nationwide injunctions. Regardless of the legal reasoning behind her decision, it appeared to many as politically motivated hypocrisy.

Even more remarkable was Justice Barrett’s public rebuke of the court’s newest member, Justice Ketanji Brown Jackson. Justice Jackson called the majority decision of six more senior judges “an existential threat to the rule of law”. Justice Barrett, who has frequently sided with the liberal justices, essentially told Jackson that she needed to go back to law school, writing: “We will not dwell on Justice Jackson’s argument which is at odds with more than two centuries of precedent, not to mention the Constitution.” She added, pointedly: “We observe only this, that Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.”

Suggested reading

The case for birthright citizenship

By Ben Burgis

Such division is worrying given that faith in many civic institutions is already in decline. Reporting by the mainstream media is routinely dismissed as propaganda. Following Covid, scientific pronouncements are no longer accepted at face value. Congress is seen as promoting partisan excess rather than national interest. Even the judiciary is no longer immune from growing skepticism. Accurately or not, many Americans consider prosecutor Letitia James and judge Arthur Engoron to have been overtly partisan in Donald Trump’s real estate fraud trial. A Colorado state court actually sought to keep Trump off the ballot only to be overturned by the Supreme Court. As a result of these and similar incidents, a new and troubling phrase has crept into the American vocabulary, “weaponized lawfare”.

Even more significantly, while the Supreme Court decision limited the use of nationwide injunctions, it still allows “class certification” through which courts can issue injunctions affecting a very broad group of people. As Justice Samuel Alito noted, this is “a potentially significant loophole” in the decision. Is there any reason to doubt that judges who were lax in the use of nationwide injunctions will be any stricter in their use of class certification? The failed plaintiffs in last week’s decision have already sought a new injunction under this provision of the law.

The decision neither enhanced the Supreme Court’s legitimacy nor resolved the issue of judicial overreach. The potential for abuse remains. Once a tipping point in public trust is reached, partisan actors, like the German nobles, will seize the issue. They will twist legitimate reform efforts to their own immediate gain, potentially undermining the entire process of judicial review. Every law school professor will tell you the courts have the authority to declare laws unconstitutional. Every one of them also knows that this authority is not found anywhere in the Constitution. It was the self-aggrandizing brainchild of Chief Justice John Marshall who promulgated it in the 1803 case of Marbury v. Madison. It has been accepted because it is generally regarded as useful. So was papal infallibility.

The Protestant Reformation began on All Saints Day 1517 when Martin Luther nailed his 95 Theses to the cathedral door in Wittenberg and publicly declared that selling forgiveness of sins was a fraud. Yet Luther wanted to reform the Church, not dismember it. Pope Leo X could have defused the Reformation, and preserved the unifying stature of the Catholic Church, by ending practices many had come to regard as corrupt.

Luther’s Reformation became a political as much as a religious event. Today, the authority of district court judges has become a political as much as a legal issue. In “Federalist 47”, founding father and president James Madison noted that it is the concentration of power that defines tyranny, not the ends to which that power is used. The power of one unelected, junior trial-court judge to block the policies of a nationally elected president is an unwarranted concentration of power in the judiciary. Hopefully, last week’s decision will end the abuse of judge shopping to block executive orders, but it may not. We do not need a constitutional reformation. We need the Lutherans and Catholics on the Supreme Court to firmly rein in highly partisan district court judges from both parties before someone nails 95 Theses to their courthouse door.

Of course, these frantic proclamations make sense electorally: what better way of rallying the troops than monstering the enemy? Nor are they entirely wrong — whatever your politics, it’s clear that Harris and Trump represent, from economics to citizenship, two vastly different visions of the nation. Yet whatever happens over the next few days, I’d nonetheless argue that these scrambling attempts to save Americans from themselves are missing the point. For amid the ceaseless howls about guns or abortion, what everyone ignores is that our very Constitution is rotting at the roots. Until we pull it out, and start again, our democracy will continue to wither.

Until recently, Americans on both sides of the aisle wallowed in US exceptionalism, the idea that we represented the greatest democracy in the history of the world. Like most national myths, that inevitably involved some fudging. Yes, American democracy excluded a lot of people in the early days. But so did every other representative political system. Sure, America had seen its fair share of demagogues, from Huey Long to Dubya. But in the immortal words of Martin Luther King, this was also the country where the right to protest was sacred.

More from this author

Without socialism, liberalism will die

By Matt McManus

Seen from this angle, all that hand-wringing about our democratic discontent can feel like an aberration — or even shamefully un-American. The irony here is that these fears ignore the anti-democratic strain that’s thrived in our politics since the founding. As far back as 1776, after all, John Adams argued against expanding the franchise in his native Massachusetts, warning that it would eventually “prostrate” all ranks to a single level. Heaven forbid, Adams added for good measure, that children or even women should get the chance to vote.

Nor was he alone. In Federalist 10, for instance, James Madison rejected a “pure democracy” — by which he meant direct rule by citizens, claiming that such societies become “spectacles of turbulence and contention”. Like Adams, moreover, Madison expressed particular reservations about the dangers comprehensive democracy could pose to property. “Those who hold and those who are without property,” he says, “have ever formed distinct interests in society.” Even Thomas Jefferson, arguably the most democratic of the Founding Fathers, remained confident that there was a “natural aristocracy” which the best kind of government selected for high office.

These ideas endured long after the early republic of frock coats and periwigs vanished into history. From the mid-1820s, for instance, Vice President John C. Calhoun worried that an abolitionist populous North might one day wield excessive political power over the slaveholding South. And though these fears were clearly partly motivated by grubby sociopolitical realities — a South Carolinian, Calhoun owned some 50 slaves himself — he equally couched his concerns in the high-minded constitutional principle. In his A Disquisition on Government, for instance, he warned against the dangers of an “absolute democracy” which holds that a mere “numerical majority” should rule. This, in turn, would facilitate an egalitarian push, whereby the majority would attempt to “force the front rank back to the rear, or attempt to push forward the rear into line with the front” through the “interposition of government”.

There’s a risk, of course, of slipping into anachronism here. People in earlier centuries obviously believed plenty of things we’d disagree with now. Yet similar anti-democratic arguments have consistently reemerged into modern times. In a 1957 article, for instance, William F. Buckley argued that southerners were entitled to impose restrictions on black votes even “in areas where it does not predominate numerically” — because, Buckley claimed, whites for the time being represented “the advanced race”. In Suicide of a Superpower, published in 2011, Patrick Buchanan warned about how high levels of immigration threatened the “European” and “white” American majority. This, he explained, was because the “West worships at the altar of democracy, is deeply egalitarian, and has thrown open its doors to a Third World in which ethnonationalism is embedded”.

These days, a whole array of expressly anti-democratic thinkers have continued to carry Buckley’s torch. Adrian Vermeule makes appeals to the Nazi jurist Carl Schmitt, dismissing the alleged neutrality and toleration of liberalism and calling for an overtly theocratic politics. In Common Good Constitutionalism, Vermeule urges conservative jurists to abandon even the pretence of originalist neutrality, and simply issue decisions based on their own (reactionary) values. This may produce outcomes highly contrary to majority rule, but Vermeule doesn’t care: the “common good need not justify itself before the bar of democracy”. Not to be outdone, Peter Thiel, himself an anti-democrat, has long financed the work of Curtis Yarvin. A major influence on J.D. Vance, Yarvin argues that Edmund Burke’s swinish multitude “suck” and should be replaced by something like a monarchial CEO. Yarvin hopefully means someone less silly than Elon Musk — but he will presumably take who he can get.

This intellectual tumult is bad enough. But what’s really striking is that the Constitution’s anti-democratic legacy, traced right back to Madison and Adams, continues to have a desultory impact on American politics. Consider the Senate. The Constitution apportions senators on the basis of “state sovereignty” — a legal fiction — and guarantees that small states enjoy far more legislative heft than their larger neighbours. California and Wyoming both get two senators, despite the former having 80 times more people.

No less important, the Constitution also doesn’t guarantee any American citizen the right to vote, only preventing abridgement of an entitlement to vote on the basis of race or gender. Historically, even this thin shield has been easy to circumvent. States implemented a vast array of workarounds-literacy tests. They also restricted voting based on taxes paid — even as many freed slaves still had little or no income. Just as striking, the Supreme Court has often upheld such outrages. One example here is the infamous Williams v Mississippi case, where the court unanimously found that disenfranchising black people was actually fine.

In a sense, this is unremarkable: the judiciary has anti-democratic foundations too. Belying its reputation as a body of sober judgement, the Supreme Court has more often than not exercised that power on behalf of conservative causes even when they’re deeply unpopular. In the past few years, these have included the perennially unpopular Citizens United decision, giving corporations massive power to spend money to electioneer, and the Dobbs decision rolling backs women’s reproductive rights. As Erwin Chemerinsky has noted, meanwhile, the fact that Supreme Court judges are given life tenures thrusts a stake through the country’s democratic pretensions. “No other country in the world gives its judges life tenure,” the constitutional scholar says, “and that is for a good reason: individuals should not exercise such great power for such a long period of time.” As Chemerinsky adds, when the country was founded average life expectancy was much lower than it is now. These days, of course, you can have jurists making monumental decisions about the future of the republic well into their dotage.

Then there’s the Electoral College, despised by a majority of Americans and which has a long history of producing anti-majoritarian results, with small, rural states enjoying an outsized influence on American elections. This has twice benefitted Republicans in the 21st century, when their candidates won the 2000 and 2016 elections despite losing the popular vote. But it also nearly brought John Kerry to power in 2004, when he came very close to winning Ohio, and therefore the election, despite losing the popular vote to war criminal George W. Bush.

Suggested reading

The Constitution won't save America

By N.S. Lyons

All this has had a profound impact on the day-to-day practicalities of American democracy. Especially when dovetailed with the Constitution’s theoretical problems — and the way that promoted a reactionary intellectual tradition from Calhoun to Yarvin — America was prevented from becoming a genuine democracy well into the Sixties. Quite aside from the sufferings of African Americans, who were habitually disenfranchised right across the South, Asian and Native Americans have also battled for their rights deep into living memory. No wonder scholars have found that many foreigners now consider the US Constitution yesterday’s news, the political equivalent of Mahler in an age of brat summers.

Turning things around will mean confronting these realities directly, recognising that saving democracy will involve expanding it — and changing the existing constitutional order to eliminate its anti-democratic features. An obvious beginning would involve moving away from the electoral college towards a directly majoritarian system. This wouldn’t be easy, with smaller states unsurprisingly resenting such a move. But it isn’t impossible: several states have already aligned with the “National Popular Vote Interstate Compact” pledging to give their electors to whoever wins the popular vote. Reforming the Supreme Court wouldn’t be simple either. But legislative reform to impose term limits, and a popular push for the court to enact a more stringent ethics code, show that change is in the air.

It goes without saying that any reform will enrage those demagogues who exploit the constitution’s weak points, gaining power against the wishes of most voters. But two centuries on from the drafting of our anti-democratic constitution, it’s finally time to hand power to the people.

Given the ample evidence of the Biden administration’s sweeping censorship efforts in recent years, many legal observers assumed the case was a done deal. And yet, during the hearing, it quickly became apparent that a majority of the court’s justices were sympathetic to a counter-argument that, actually, it’s the Government who’s the real victim in this case — because what “free speech” really means is that the Government has a right to tell Facebook that you need to shut up.

The court’s newest and most innovative justice, Ketanji Brown Jackson, stole the headlines with comments about how she was “really worried” about “the First Amendment hamstringing the Government in significant ways in the most important time periods” — i.e. elections involving Donald Trump. But even some of the court’s allegedly more “conservative” justices such as Brett Kavanaugh and Amy Coney Barrett appeared openly sympathetic to the idea that it’s more important to preserve the national security state’s uninhibited power to bully platforms into silencing information they consider “harmful” than it is to preserve fundamental individual rights. In short, although a ruling on the issue won’t be released until this summer, as of now the Supreme Court seems poised to effectively enshrine the legality of mass state censorship and deliver what could be a mortal blow to America’s tradition of free speech.

Suggested reading

The dawn of America's monarchy

By Mary Harrington

Many conservative and classical-liberal American political commentators seem genuinely shocked by this development. They assumed this should be a pretty open-and-shut case, with the Federal Government’s behaviour — being a clear violation of the First Amendment of the Constitution — sure to be righteously smacked down by the conservative-leaning court. But this assumption was deeply naïve. In fact, their broader, rather quintessentially American faith in the Constitution’s ability to establish and protect foundational liberties was probably always badly misplaced.

Perhaps this unfortunate moment can at least offer an opportunity to induce some much-needed realism about the Constitution, and its relative impotence in the face of tyranny today. In the naïve schoolhouse view, the Constitution remains a sacred, quasi-magical text spelling out our rights and protecting them by limiting the powers of government. The words on its pages have been elevated to semi-transcendent status, as if they were a form of scripture endowed with their own sovereign authority. This authority sets the rules of what is permissible, and the robed wise men of our courts interpret, sola scriptura, these national tenets to determine if new laws and practices conform to or have overstepped the authority granted to them by the Constitution. In this sense, the Constitution forms the foundation for the rule of law.

Those still holding to this view may further believe that the words of the Constitution’s text also established the foundational character of the American nation, becoming the enduring wellspring of our unique national culture and way of life. Finally, they are likely to assume that it is precisely the fact that the American Founders took the step of codifying well-reasoned ground rules in writing that has made the United States an exceptional nation inherently more resistant to tyranny than those which failed to develop clear written constitutions.

Sadly, however, while this is a comforting myth, it is a myth nonetheless. Most obviously, the Constitution does not, of course, have any sovereign authority of its own. It doesn’t make its own decisions as could, say, a living monarch. And although officials may swear oaths to uphold and defend the Constitution, it cannot hold them accountable or enforce the rights and limitations it delineates. Only other people can do that; only individuals can rule. This is a rather simple point, but many Americans seem to want to actively ignore its reality, preferring to see power as something that flows from and is constrained by the Constitution, rather than as something which can determine its meaning and application. The Constitution has no more intrinsic power than any other piece of paper.

More from this author

How we appeased China's Zero-Covid regime

By N.S. Lyons

What is even more important to understand is that the Constitution isn’t actually our constitution. In fact, it has never been America’s true constitution. That’s because the Constitution (the written document) is only a representation of something real — or rather, in this case, something which used to be real. Its words were an attempt to encapsulate the Founders’ expression of the young Anglo-American nation’s implicit, unwritten constitution. By “constitution”, I mean — as most of Western history’s great philosophers would have understood that word — the unconscious, historically accumulated essence of the nation’s organic and fundamental collective character: its public spirit, way of life, and common understanding of authority and the moral laws of right and wrong. In this, the Founders succeeded wonderfully in their day. But the document they produced was and is a map, a symbolic representation of a cultural and spiritual territory; it is not the territory itself.

No one understood this distinction better than the political philosopher Joseph de Maistre. Writing in 1809, he scoffed at the idea that any document written by mortal hands could ever design and establish genuinely new foundational laws. The spirit of any such laws was invariably already written on the hearts of those men who attempted to crudely reduce them to mere lines on a piece of paper. “Precisely what is most fundamental and most essentially constitutional in the laws of a nation cannot be written,” he wrote. The true constitution of a strong and functional nation was always “that admirable, unique, and infallible public spirit, beyond all praise, which directs everything, which protects everything. What is written is nothing.”

“Only when the society is already constituted, without it being possible to saw how, it is possible to declare or to explain in writing certain particular articles” of a particular society’s true, unwritten constitution, he argued. But attempting to capture these principles in writing is largely pointless. In fact, he believed that such “writing is invariably a sign of weakness, ignorance, or danger”, in that “every written law is only a necessary evil” that “is of no authority at all unless it has received a previous and unwritten sanction”, and in “so far as an institution is perfect, it writes less”. (Here he echoes that famous motto of Tacitus, pessimae reipublicae plurimae leges: “the more numerous the laws, the more corrupt the state.”) He scorned the “profound imbecility” of “those poor folk who imagine that lawgivers are men, that laws are a piece of paper, and that nations can be comprised of ink”.

These days I suspect he was right, and that his insight can help explain a lot about the degeneration of society and governance that has since occurred in the United States (and various other Western nations as well). When the Founders drafted the Constitution, they were giving expression to an essential constitution of the American nation that already existed in unwritten form, and which continued to endure for a long while. But in time, even as the written Constitution continued to reign in official law, the spirit that governed the American people changed as they changed, and the corresponding unwritten constitution withered away and was replaced by a new intrinsic constitution. In fact, it’s probably accurate to say this happened multiple times, or in multiple stages. Yet in any case the unwritten constitution animating the American state today bears almost no resemblance at all to that preserved in the historical relic of the Constitution.

More from this author

The West and China share the same fate

By N.S. Lyons

What is America’s implicit constitution today? Naturally, it’s never been fully captured in writing, though some authors, such as Christopher Caldwell, have variously attempted to nail it down here and there. If pressed to summarise, I might say it is one that values safety and security over freedom; top-down control over self-governance; empty egalitarian posturing over excellence; material comfort over virtue; entitlement over responsibility; bureaucracy over accountability; narcissistic emotivism over duty; fantasy over reality; global ambitions over national loyalty; dreams of progress over eternal and transcendent truths — in short, the same spirit that animates our out-of-control managerial regime. It’s the spirit which saw that regime not hesitate to impose Covid lockdowns, or trash the rule of law and attempt to jail political opponents (and for half the country to view this as acceptable or even admirable); it’s what has produced Supreme Court justices who fret free speech would undermine the security state.

Much of what we’re seeing today in our seemingly revolutionary times is the outline of this new unwritten constitution becoming increasingly visible in law and government as the chasm of difference between it and the original American constitution becomes too wide to conceal any longer. More and more often now, the new regime fails to keep up appearances by successfully wrapping itself in the confining ritual pretences of the Constitution. Its mutated form is simply growing too hulking and twisted to fit.

It may be true that a remnant of the old constitution — the old American nation — remains alive in the hearts of some portion of the American people. But if so, it is now battered and bloody, struggling for breath as the new constitution seeks to finish it off once and for all. Perhaps this is the best way to describe the true cause and nature of the existential political and cultural clash that has riven the American body-politic and continues to grow fiercer by the day: it is indeed, as Joe Biden has put it, a final “battle for the soul of America”.

This is the real reason why the Constitution can’t and won’t save us now: in today’s struggle it no longer has any real power over men because it no longer corresponds to the unfortunate new inner reality of America’s unwritten constitution. The old “infallible public spirit, beyond all praise, which directs everything, which protects everything”, which the document once embodied, is no longer there to give it substance.

John Adams once warned that “our Constitution was made only for a moral and religious people”, and that, should that national moral character disappear, the resulting political passions “would break the strongest cords of our Constitution as a whale goes through a net”. Adams was of course referring primarily to Christianity and its system of moral order, and Maistre would have very much agreed. In his view, the origin of a strong, stable and legitimate constitution could rest only in God and what we might call the popular fear of God: a sincere (even if subconscious) belief that to transgress the constitution (written or unwritten) was in a way to transgress divine law, an act liable to be punished accordingly. Ultimate authority then effectively rested above any man or document. Without this source of higher authority, the constitution would crumble and only the whims of petty tyrants would remain.

It sure seems that this is what we’re witnessing today. Whether or not we attribute the key role to Christian belief or to some broader but less easily defined national moral character, it seems clear to me that the Constitution is no longer alive with any such frightful sacred authority; it has been thoroughly profaned, and therefore opened to abuse. Nor is there today even a shared national understanding of its meaning and unwritten spirit. Whereas once few people would have dared try to blatantly twist its words to mean something that all would know implicitly they could not mean, our rulers no longer hesitate to do so — and often succeed. They succeed because that implicit constitution has been replaced.

I know that for Americans, who put so much faith in our Constitutional tradition, this is probably a particularly difficult and demoralising reality to accept. But accept it we must. Otherwise, we won’t be able to grasp the nature and extent of the challenge facing us. No amount of legalistic quibbling about the details and original meaning of the Constitution will rescue us from our present situation; nor could the nation’s highest court, even if it weren’t full of quislings. Even if the Supreme Court were to strongly reaffirm the principle of free speech, it would provide at most only a temporary reprieve — a ruling which the regime and its institutions would in all likelihood simply proceed to ignore, knowing they could get away with it.

No court has the power to define America’s true, unwritten constitution. If we want to change that constitution, and so restore any substance to the Constitution, then what will be called for is nothing less than a sustained and determined national cultural, intellectual, religious, and political counter-revolution sufficient to re-mould the very animating spirit of the state. It would, in other words, require an effort just as sweeping as the long revolution which dismantled and subordinated our original constitution in the first place.

New Labour has long been a convenient scapegoat for Conservatives of a particular persuasion. But this time, the accusations may have merit. The backlash that followed last year’s Supreme Court ruling — which found the Rwanda policy to be unlawful — is a direct product of New Labour and Lord Derry Irvine’s rights-based judicial reforms. Those reforms, firstly, ensured all policy and legislation-making centred around a culture of rights-compatibility. This was to be given priority over debates regarding the merits and necessity of an elected government’s policy preferences and assessment of the public interest. Secondly, it encouraged the perception of the judiciary as being unchallengeable and hierarchically superior to other branches of the state. The result, as we’re now seeing, is the constraint of an elected government that commands a majority in Parliament.

For New Labour, the aim was to ensure that domestic policy and legislation was subject to, and heavily shaped by, the European Convention (ECHR) rights found in the Human Rights Act 1998 (HRA), regardless of whether the domestic public interest or common good, according to a democratically elected majority government, required otherwise. As such, governments of all stripes would be forced into designing and arguing for policy that sits within the HRA’s framework and adhered to decisions made by the European Court of Human Rights (ECtHR). Other pertinent questions about the need, validity, strengths, weaknesses and democratic support for these proposed measures would become secondary.

Lord Irvine was clear-eyed about the types of rights-based reforms he wanted to introduce. He unequivocally claimed that New Labour’s HRA sought to mould not only the content of law in a range of areas, but also the law-making process. As such, it was New Labour’s specific intention to ensure government policy and legislation was framed around individual rights. To this end, the requirement for ministers to make statements of compatibility when introducing a Bill into Parliament was vital; the “responsible minister” would have to justify their decision in the “full glare of parliamentary and public opinion”. Strikingly, “Sovereignty”, Lord Irvine wrote, “will in future have to be exercised within an environment highly sensitive to fundamental rights”.

Moreover, because the HRA ensures executive and public bodies carry out their work under the umbrella of rights compatibility, Lord Irvine claimed such bodies would be subject to “considerably more rigorous scrutiny” than before — and he conceded the “special arena of human rights” would entail high degrees of judicial intervention.

While Lord Irvine, and New Labour, maintained that parliamentary sovereignty would be preserved, and Parliament could continue to legislate as it wished, the intention was to reposition the terrain for legislating towards matters of compatibility and away from concerns about public interest. If Parliament sought to legislate against the HRA grain, the question would not be of sovereignty or public interest but of rights-compatibility. Further, the duty on domestic courts to read legislation in a HRA-compatible way has led to a wide range of British government policies being reduced to such debates. The results, as we have seen, include well-documented cases of IRA members claiming to suffer a breach of the right to life, and the blocked deportation of suspected terrorists. Even government policies concerning public ownership and late-night flights from London Heathrow airport have been subject to questions of compatibility.

Suggested reading

Jonathan Sumption on Gaza, lockdown and the ECHR

By Freddie Sayers

Of course, while these types of cases can and often have been decided in favour of the Government, the reduction of substantive policy proposals to discussions of ECHR-compatibility, and the resulting delays to their implementation, are debilitating for domestic legislative or public interest programmes. Adhering to basic minimums of rights is important. But to confine the legislative and policy-making process so that it only or disproportionately considers HRA compatibility distorts and significantly harms domestic deliberations about proposed measures. Such a bias also reduces the role of the unique customs and traditions of the country in informing policy programmes, and relegates the view of legitimate domestic actors, such as trade unions, who may have a role in influencing policy or legislation. Designing and implementing domestic measures requires some degree of political and legislative freedom, relatively free from compatibility measures that are premised on decisions made by the supranational voices of the ECtHR.

To make matters even more tiresome for any current or future government, New Labour’s HRA created the perception that the judiciary, and their judgments, were hierarchically superior to the elected majority government in Parliament. In other words, a false impression was created that framed Parliament, and the majority government within, as being unable to question or legislate against judicial decisions. Historically, the British constitution is no stranger to judicial checks on potential overreaches of power. But it is not through enforced judgments that Parliament complies with judicial decisions. Instead, it has always been through sovereign self-regulation, conventions of restraint and respect, and, where this fails, through parliamentary scrutiny and, ultimately, electoral assessment. Despite this, New Labour encouraged an Americanised feeling of judicial supremacy by, first, reframing the role of judges and, secondly, allowing them to enter more substantive discussions about the merits of any given policy or legislative measure.

Lord Irvine confidently asserted that the HRA’s reforms ushered in a new framework and prominence for judicial authority. He understood that the British system was not like that of the United States, with a written constitution, but he believed that the judiciary should be tasked with protecting both substantive rights and the content of those rights. Here, he argued that the success of the US constitution in achieving this was a result of the power given to the courts. Strikingly, in comments that would petrify Lord Chancellors of the Labour Party’s past, Lord Irvine also argued that characteristics of the US Supreme Court would underpin the new rights-protection model in the UK. By moving away from the Diceyean common law model, “the new legislation [HRA 1998] will allow the judges to fulfil a stronger constitutional role in a wholly constitutional way”. The HRA, he argued, gave the courts the “constitutional warrant” needed to uphold rights.

Suggested reading

How the judges took back control

By Thomas Fazi

Then, after recasting the British judiciary in the same light as the US Supreme Court, Lord Irvine explained that the introduction of New Labour’s rights-based reforms would kickstart a new process of justice based on the promotion of positive rights. As such, he believed the mechanics of the HRA changed the constitution to one in which citizens asserted a positive entitlement that was expressed in clear and principled terms. This meant that British judges, for the first time, were able to make their own distinctive contribution to the protection of rights. The judiciary would now be armed with a “catalogue of new rights” and “new tools” to uphold freedom. Despite New Labour arguing these reforms maintained the position of Parliament as the ultimate arbiter, Lord Irvine specifically claimed there would be great pressure to concede ground to any decision that the court has made. This would especially be the case if a “section 4(2) declaration of incompatibility” — in which legislative provisions went against the grain and values of the HRA — was made. For those unsure what this might entail, he explained:

“The issue of a declaration of incompatibility is very likely to prompt the amendment of defective legislation. Consequently, while British courts will not possess the power to strike down legislation which is incompatible with human rights, their power to issue a declaration of incompatibility is substantial, given that, in pragmatic terms, it very probably will lead to the amendment of defective legislation. In this practical sense, the Human Rights Act does introduce a limited form of constitutional review.”

Commentators broadly agree on the potency of such a declaration, despite Parliament, in a technical sense, having the ability to ignore it. Indeed, the political pressure created by a “Supreme” Court ruling against a government tends to be so enormous that, in practical terms, the court, not Parliament or the government within, is viewed as supreme. In effect, such a measure is tantamount to ordering the Government and Parliament itself to halt or change direction — something which, prior to 1998, was constitutionally improper.

Moreover, when ensuring the legislation or policy in question was compatible with the HRA, Lord Irvine claimed judges would also be able to conduct a more substantive review of human rights and policy. He argued that the domestic courts would be able to examine whether it was necessary to limit a right, and whether a proposed limitation was appropriate. Therefore a moral approach to judicial decision-making was created. The courts would now have to be satisfied that any interference with a protected right was justified in the public interest of a free democratic society. The result, Lord Irvine explained, would be judicial decisions based on the morality of government policy and legislation — not simply its compliance with the bare letter of the law.

Suggested reading

Why England hates incompetent tyrants

By Mary Harrington

Finally, although seemingly cosmetic, New Labour’s decision to disband the Appellate Committee of the House of Lords and create a new, relocated Supreme Court — via the Constitutional Reform Act 2005 — lent further weight to its aim of fostering feelings of judicial supremacy. Instead of adhering to the unique commixture of powers in the British constitution, the Department of Constitutional Affairs explained the intention was to redraw the relationship between the judiciary and other branches of the state — in addition to enhancing judicial independence. Overall, then, an image starts to emerge of New Labour and Lord Irvine’s responsibility for those in Britain who have spent the past two decades appealing to the paramountcy of the HRA and finality of judicial decisions. This can be clearly seen in the responses to the Rwanda policy from civil society, commentators in the media, and politicians.

Following the Supreme Court judgment, for example, third-sector organisations unequivocally called for the Government to abandon and draw a line under the measure. Others have also criticised the Government’s response  for “disapplying” aspects of the HRA and “disabling the courts”, while reporters have framed the Government’s response as one which “brushes the historic role of our country’s courts aside”. Similarly, among politicians, legislating against the Supreme Court has been described as “an affront to democracy”, with MPs expressing concern about “the possibility that, by effectively reversing through statute a Supreme Court judgment on the facts, the Bill could undermine the constitutional role of the judiciary”.

Of course, these responses do not form a complete picture — but they do provide a snapshot of the enthusiasm for judicial supremacy fostered by New Labour. The result, as the Rwanda policy has demonstrated, is a rights-based framework that can significantly obstruct an elected government’s policy or legislative agenda. While New Labour and Lord Irvine may feel like history, we are still stuck in the stranglehold of their reforms.

***

A version of this article was published on the UK Constitution Law Association website.

For years, critics of the ECHR have argued that the Convention and its handmaiden, the European Court of Human Rights, represent an unacceptable infringement on national sovereignty. Supporters of the ECHR, on the other hand, claim that it has been an important driver of social progress, helping to redress blind spots within the UK’s legal system.

In a way, both sides are correct. Consider the ECHR’s most important UK-related rulings — ranging from homosexual equality to journalistic freedom — and few would disagree that it has played an important role in strengthening the protection of citizens’ rights in Britain. Yet it is also true that the ECHR raises important issues over sovereignty and democratic legitimacy. Should a supranational court have the right to decide whether a certain bill, approved by an elected parliament, passes the ethical and moral litmus test?

It is, though, a mistake to treat the ECHR in isolation, as its critics do. For the same question could be asked of any national court, including the Supreme Court itself. The influence of the ECHR is only one part of a much bigger story: the wider judicialisation of our political and democratic systems.

Over the past few decades, an unprecedented amount of power has been transferred from representative institutions to judiciaries, transforming national and supranational courts into full-blooded political and decision-making bodies — and giving rise to a new type of political regime altogether: what some have called juristocracy. As legal scholar Ran Hirschl wrote as far back as 2004, from matters of national security to macroeconomics, “courts have become crucial for dealing with the most fundamental questions a democratic polity can contemplate”. The view that “nothing falls beyond the purview of judicial review”, as Aharon Barak, the former Chief Justice of the Supreme Court of Israel, said, has become widely accepted.

Suggested reading

The case for leaving the ECHR

By Richard Ekins

As a result, it has become standard practice for core political decisions relating to the very essence of public life — such as immigration policy — to be taken by courts and judges. Questions that ought to be resolved through public deliberation in the political sphere are increasingly being settled behind closed doors by a self-selecting judiciary elite. Power has been delegated away from elected bodies and towards technocratic institutions — not just courts but also quasi-autonomous administrative bodies within the state, as well as supranational political-economic institutions such as the European Union. This process of judicialisation has disrupted the equilibrium between the various branches of government, and the fundamental principle of the separation of powers, transforming judiciaries into de facto legislators, at the expense of democratic deliberation.

In this sense, critics of the ECHR are right to claim it usurps the functions of democratic institutions, just as the EU does. As the former Supreme Court judge Jonathan Sumption recently made clear: “The [European Court of Human Rights] is now much more than a judicial body. It is a great factory for making law, which has become a legislative and political authority for the whole of Europe… It is political because many of the issues which it decides are matters of political judgement on which states can legitimately differ.”

But the Convention is only one facet of a much bigger problem: the juristocratic regime. And this is more than just a scholarly issue — it is a matter of class and power.

The birth of today’s juristocracy dates back to the late 19th century, when the gradual establishment of universal suffrage led to growing anxiety among ruling proprietarian elites, including most liberals including Mill, about the entry of the lower classes into government. The fear was that the extension of the franchise would disrupt social stability and constitutional principles — and, more precisely, that the working classes would use their new-found political rights to challenge the dominant economic order.

Most governments responded to this threat by effectively restraining popular participation through a mixture of parliamentary sovereignty, rule of law and formal or informal constitutional conventions. In England, this came to be known as the Westminster system, a regime premised on the idea that Parliament was the only body with the authority to make laws, thus implying the subordination of the judiciary to the legislative.

More from this author

Why the West's elites invented a permacrisis

By Thomas Fazi

This form of political system became increasingly prevalent in Europe in the years after the First World War — and, in most cases, the power of the court to influence the legislative and political process was fairly limited. Indeed, as of 1942, only Norway had a constitutional court with the power to throw out laws adopted by the national legislature. Throughout the Forties and Fifties, however, several countries — including Germany, Italy, France and Austria — adopted constitutions that instituted courts with the power of judicial review: the power to examine, and eventually overturn, the decisions of the legislative and executive arms of government, if deemed in breach of the constitution.

This gave rise to the model of “constrained democracy” that was later emulated across most of Europe: one which possessed all the formal elements of democracy but where the ability of the masses to influence policy-making was subject to new sets of constraints. Though these constitutional courts were officially created as “guardians of the constitution”, they were in fact just as much guardians of the emerging US-led international order. Indeed, the early post-war years also saw the emergence of courts that were international or supranational in their own right, in Europe in particular, most notably the European Court of Justice and the European Court of Human Rights.

Westminster-style polities, such as the UK, were largely immune to this trend. But in the Seventies, the push towards judicialisation underwent a massive acceleration, including in the Anglosphere. Faced with growing pressure from an increasingly militant and politicised body politic, political elites resorted to various forms of depoliticisation — the removal of political decisions from the realm of popular-democratic contestation — in order to escape such pressures.

Judicialisation was one of the key tools — by either relying on the courts to challenge existing aspects of the social order that would have been hard to change through the normal channels of democracy, as Thatcher did, or by outright transferring power from majoritarian decision-making bodies, such as parliaments, to courts at the domestic and supranational level.

As Hirschl explained, even though this transfer of power might appear to run counter to the interests of political elites, in fact it served their interests very well. It allowed them to “scapegoat” the courts for policies they themselves wanted, safe in the knowledge that high judges tend to reflect the elite consensus on major cultural and political issues. “Deference to the judiciary, in other words, is derivative of political, not judicial, factors,” he wrote.

Suggested reading

Jonathan Sumption on Gaza, lockdown and the ECHR

By Freddie Sayers

For the UK, this journey largely accelerated with its entry into the EU in 1972, which over time transformed EU law into something akin to a higher law. The second big push towards judicialisation came in the late Nineties and early 2000s under New Labour, with the creation of the Human Rights Act and then the Constitutional Reform Act of 2005, which paved the way to the creation of the Supreme Court in 2009.

Yet for Britain’s political elites, judicialisation still carried a risk — namely, that the courts would start producing judgments that no longer reflected the ideological preferences of those who handed authority over to the judiciary in the first place. Hence, the Conservative Party finds itself unable to enforce its Rwanda policy.

So, when leading Conservatives claim that the ECHR represents an infringement on democracy and parliamentary sovereignty, and that leaving the ECHR is necessary to complete the “Brexit project”, they are not wrong. The problem, rather, is that these arguments ring hollow.

After their victory in the EU referendum, many hoped that Britain’s democratic rejuvenation was just beginning; instead, the Conservatives have gone out of their way to avoid democratic scrutiny. They have a Prime Minister who rules without a democratic mandate, and a party machine which seems more interested in internal squabbles than fulfilling its electoral promises.

Should we be surprised, then, that a majority of people, according to a recent poll, don’t want to leave the ECHR? Perhaps they realise that, for withdrawal to make sense, it needs to be part of a radical project of re-democratisation. But that would require the existence of a political class that believes in democracy. Even if the Tories somehow manage to conjure up a way to bypass the Rwanda ruling, that uninspiring reality is unlikely to change.

Regardless of recent private polling showing Labour’s “floor” to be at the uncomfortably high mark for the Tories of around 330 seats — a working majority for Starmer — some Conservatives hold out hope. But if history is to be our guide, there are more than a few reasons to believe that Keir Starmer really might be on course to join Attlee, Wilson and Blair in No 10.

Labour’s three watershed election victories came in 1945, 1964 and 1997. Each time, the Party won after long periods of Conservative rule or Conservative-dominated government: 14, 13 and 18 years respectively. Sometimes the country just demands change — and the Tories will have been in power for 14 years by the time the next election is called.

But in each of these victories for Labour, it wasn’t just that voters decided a change was needed — it was that the party was best placed for a world that had already changed. By 1945, after all, much of the economy had effectively been nationalised to fight the war, and all the main parties had endorsed the Beveridge Report calling for a dramatic expansion of the welfare state. Whether Labour won power or not, Britain was not going back to the discredited pre-war settlement. But in 1945, Labour was simply more closely aligned with this new Britain than the Tories, with or without Churchill. In foreign policy terms, too, Attlee offered almost complete continuity.

Something similar happened in 1964 and 1997. By 1964, the Tories had already begun the great corporatist experiment to run the economy that Labour would claim as their own. In 1961, Macmillan had initiated a form of centrist managerialism, with voluntary wage controls to combat inflation and national councils established to bring industry and trade unions together. Labour, under Wilson, did not reject the system, but offered a more dynamic and professionalised management of it.

Wilson looked the part for the job, too. Young, smart and committed to the task, he stood in contrast to his opposite number, Alec Douglas Home, who had been parachuted in from the Lords. This early incarnation of Wilson is strikingly similar to Blair, in 1997, when he swept to power demanding a more modern, professional approach to managing the state, maintaining the economic settlement which had been in place since Black Wednesday in 1992, but with more focus on public services.

More from this author

Labour is winning the Brexit revolution

By Tom McTague

In each of these elections, Labour was not so much offering radical change, as a policy programme that went with the grain of politics. And something similar is happening today. The pandemic, Net Zero and an ageing population have combined with the rise of China to create a world in which the state has become far more central to the success of an economy than before — a situation which fits far more comfortably into Labour’s economic philosophy than the Tories.

Since 2016, the Conservative Party has taken back regulatory control of the British economy by leaving the EU; it has increased taxes to their highest levels on record to pay for its interventions during the pandemic; and it has dramatically expanded the size of the state by offering to pay for childcare from the age of one (as well as end-of-life care). On top of this, the Government’s central policy idea, to level up the country, imagines a level of government intervention and redistribution on a scale previously deemed impossible, while the commitment to reach Net Zero by 2050 demands an even more transformative role for the state. All of this is happening, meanwhile, while the rest of the Western world begins the process of “de-risking” its supply chains from China, creating new manufacturing capacity outside of Beijing’s control largely by erecting new protective barriers. Not a single part of this economic landscape sits easily for a Conservative government led by a Thatcherite prime minister ostensibly committed to free trade, low taxes and a small state.

No party has ever won an election after presiding over a financial crisis — and the Conservatives actually caused this one. Wilson lost power after failing to stop the devaluation of sterling in 1967, Edward Heath after the oil crisis of 1973, James Callaghan after going to the IMF in 1976, John Major after Black Wednesday in 1992 and Gordon Brown after the great financial crash of 2008.

And yet, there is a socking great caveat to this rosy picture for Labour. Brexit.

Brexit is the one legacy of recent Conservative rule which Labour is not remotely comfortable with, least of all Starmer himself — the former shadow Brexit secretary who advocated a second referendum. Labour opposed the Brexit revolution and, quietly, continues to think it stupid, although cannot say so publicly. There is no precedent for this in the Party’s post-war history. Attlee believed that much of the economy could be run “in peace as in war” as he said in 1945; Wilson thought Macmillan’s corporatism was right but amateurish; Blair that Thatcher’s reforms had produced a better economy but needed better redistribution and professional management of public services. None was uncomfortable with the new settlement, and none would have reversed it — not that they could.

The one time Labour won an election after inheriting constitutional reform it did not support was in 1974, after Edward Heath took Britain into the Common Market. Yet, even here, Wilson was no longer the Eurosceptic he once was. Indeed, he had applied to join the Common Market himself, in 1967, and been rejected. The big difference between then and now, however, lies in how Labour handled this problem. Unlike today, the party was badly divided — split between the traditional Eurosceptic left and the pro-European right. Today, there is near unanimity in the parliamentary party that Brexit was wrong and continues to be harmful. In 1974, Wilson offered voters a referendum to ratify Britain’s accession to the EEC. Today, Starmer has ruled out a rejoin referendum.

More from this author

The political power of Deano

By Tom McTague

On Brexit, if anything, Starmer is following a traditional Conservative Party playbook, not a Labour one. The essential dilemma of conservatism, since 1834, has been how to respond to major constitutional change that Toryism has opposed. At what point does this sort of reform become something the Conservative Party should seek to conserve rather than overturn?

In his famous Tamworth Manifesto, effectively creating the modern Conservative Party, Robert Peel declared (wrongly as it turned out) that the Great Reform Act should be seen as the “final and irrevocable settlement of a great constitutional question — a settlement which no friend to the peace and welfare of this country would attempt to disturb, either by direct or by insidious means”. This is essentially Starmer’s position on Brexit today. He didn’t like it, but has accepted it. In so doing, he hopes to benefit, as Peel did in 1834, from being seen as a moderate national leader able to bridge old divides, while also being the person best suited to ending what Peel called the “perpetual vortex of agitation” of a great reform when its  radical supporters aren’t reined in. This is Labour’s essential pitch today: we accept Brexit but will not let its supporters agitate for endless new changes. Enough!  Historically, it is a popular stance.

Will it work this time? It worked for Peel and, eventually, for Disraeli after he reluctantly accepted free trade. It also worked for Churchill and Eden and Macmillan when they accepted Labour’s welfare state. Each reform was popular. Today, the big difference is that Brexit no longer is.

TSP Chairman Chen Yi-chi is diminutive, spritely, and much more youthful than his 50 years. Inspired by his time in the Netherlands, where he studied for a PhD in political economy, he sees the country’s “progressive, tolerant society” as a model for Taiwan. Resting on his desk is a plastic fan featuring the image of the TSP’s candidate in Saturday’s local elections. Wu Hsin-dai, a 35-year-old cardiovascular surgeon, is running in Taipei’s Nangang district. Chen is not optimistic about her chances. “It’s hard to break the grip of the two big parties,” he says, referring to the pro-China KMT and the ruling nationalist Democratic Progressive Party (DPP).

Attention for Saturday’s midterm vote is focussed on constituencies in the north, where the KMT hopes to wrest control from the DPP. Despite the prospect of a KMT reinvigoration, the vote largely seems insignificant to international observers. News about Taiwan is usually pegged to China’s sabre-rattling, particularly after outgoing US House Speaker Nancy Pelosi’s visit to Taipei in August. While they might give a sense of public attitudes towards Beijing ahead of the 2024 presidential election, these local polls are largely irrelevant to cross-strait relations.

However, amid the din of campaign-truck loudspeakers, news of a concurrent referendum to lower Taiwan’s voting age from 20 to 18 has been drowned out. And while an unfeasibly high threshold makes passage unlikely, the plebiscite highlights Taiwan’s ontological dilemma: the existence of an alien constitution, imposed by a colonising power.

Promulgated by Chiang Kai-shek’s Nationalist party (KMT) government in Nanjing in 1946, the Constitution of the Republic of China derives from the political philosophy of Sun Yat-sen. The teachings of the KMT founder and “Father of the Nation”, as he is known in Taiwan, are emphasised in the constitution’s preamble. To combat the corruption and lawlessness of early-20th century China, Sun espoused an enhanced separation of powers, into five branches — or yuan. In addition to the Legislative, Executive, and Judicial yuan, he proposed the creation of Control and Exam yuan modelled on China’s old imperial censorates. These latter two organs would be tasked with supervising official performance and overseeing civil service exams.

After he lost the Chinese Civil War to Mao Zedong’s Communists, Chiang, his KMT forces and roughly a million refugees fled to Taiwan, transplanting the ROC Constitution to the island in the process. The Taiwanese were given no say in this, and those who called for political participation were imprisoned or murdered.

Suggested reading

China can't afford to invade Taiwan

By George Magnus

Fast forward 75 years to a democratic country around 267 times smaller than China, with a population less than 4.5% the size of China’s back then, and it is obvious these supervisory bodies are unnecessary. Taiwanese politics may be plagued with corruption, but these extra layers of oversight don’t help. If anything, they’re part of the problem. Appointments to the Examination Yuan have been labelled “fat-cat patronage” by opponents, with academics vying for the exorbitant salaries of the positions they carry. Control yuan positions are similarly cushy: members are frequently friends with the politicians they should be monitoring. It’s hardly surprising cross-party support for the abolition of the two yuan has increased in recent years.

But there is a more fundamental problem with the constitution. Having remained intact during the KMT’s five-decade dictatorship in Taiwan, it has undergone minimal revision since the country’s democratisation. As such, it continues to enshrine the One-China principle in law, legitimising the CCP’s otherwise spurious claims over Taiwan.

Saturday marks the country’s first constitutional referendum since the 2005 abolition of the National Assembly — a detested symbol of KMT cronyism. Nicknamed the “old thieves”, the assemblymen nominally represented constituencies in China for decades, drawing huge salaries, and maintaining the fiction of the KMT’s continued authority over the “Mainland”. By the Nineties, a democratising Taiwan had had enough, and the “10,000-year assembly” was wound down.

Suggested reading

China has given up on the West

By Bill Hayton

Yet the amendment that abolished the assembly replaced one undemocratic element of the constitution with another, albeit less egregious, one. Until then, constitutional amendments were ratified by the assembly. Now, a bill must be initiated by 25% of Taiwan’s legislature. After that, approval from three-quarters of voters with a quorum of three-quarters of legislators is required. Finally, the amendment must be ratified within six months by an absolute majority of the eligible voting public. Before it even gets to the legislature, a proposal needs signatures from 1.5% of the eligible electorate — currently about 180,000 people.

It’s a credit to Taiwan’s civil society activism — particularly the efforts of youth NGOs — that we’ve got this far with the voting age amendment. Still, the prospect of its passage remains dim. And if this relatively uncontroversial amendment can’t be passed, what hope for root and branch reform?

“The constitution is both procedurally and substantively undemocratic,” says Lin Chien-chih, an associate research professor of jurisprudence at Academia Sinica, Taiwan’s preeminent research institute. “The hurdle to amending the constitution is unreasonably high — the highest among non-federalist countries.”

The procedural obstacles are even more disconcerting when considered alongside the constitution’s content. Article 11 of the additional articles from 2005 refers to the “rights and obligations between the people of the Chinese mainland area and those of the free area [Taiwan]”. National unification is also specified as a goal. “In other words,” says Lin, “our constitution still bizarrely argues that the PRC is part of the ROC or at least that the territory controlled by the PRC is part of the territory of the ROC.”

Suggested reading

China's broken promise of prosperity

By George Magnus

Not only is this “undemocratic in the sense that it defies what the Taiwanese people think or hope for”, but it also bolsters Beijing’s One-China narrative. Chinese officials regularly cite these provisions as confirmation of PRC sovereignty, a situation that Lin has described as “embarrassing and actually hard to gainsay”.

Does this mean the cause is lost? Not entirely. Social movements are one avenue to so-called “Taiwanisation” of the constitution. The 2014 Sunflower Student Movement was a notable success in this regard. After occupying the Legislative and Executive yuan, protestors managed to block the KMT government’s sleight-of-hand passage of a trade bill with China. But, as Lin notes, such protests cannot fundamentally alter the One-China bent of the constitution. The same goes for judicial review by Taiwan’s constitutional court, which avoids “the political thicket of controversies concerning national identity, operating at the margins rather than the centre”. A further possibility is constitutional desuetude — where provisions that fall into disuse are informally abandoned. With pro-unification politicians in Taiwan continuing to invoke the constitution’s One-China articles, Lin sees this as doubtful.

The best hope in the short term might be a return to the incrementalism that accompanied Taiwan’s democratisation. “This referendum could be a first step,” says Lin. “You start with less politically sensitive issues, and if successful, you move to things like the Control Yuan.”

Suggested reading

Is this British company arming China?

By David Rose

Despite a reputation as a radical with a penchant for hurling flip-flops at adversaries and paint at dead dictators, Chilly Chen agrees with this approach. From his 11th-floor office, a view onto the Control Yuan building is a daily reminder of everything he rejects. As director of the Taiwan Republic NGO, Chen agitates for an end to the ROC and independence for Taiwan under that name. But he is pragmatic. In the face of Chinese threats, Chen accepts international recognition under the ROC rubric as a temporary compromise. “The end goal is to build a country called Taiwan,” he says. “But we have to keep this island safe. We’re democratic. We follow the rules. Nobody wants a bloody revolution, and nobody wants to see a war. So, we’ll go step by step.”

Yet in a climate of heightened Chinese aggression, many analysts believe that wholesale constitutional overhaul must wait. Even the groups behind Saturday’s referendum share this view. “Most Taiwanese won’t accept just ending our constitution immediately,” says Michelle Wu, director of Taiwan Youth Association for Democracy. “It can be adjusted softly.” While Lin agrees that enactment of a new constitution is “neither feasible nor necessary in the near-future”, he fears that failure on Saturday could convince radicals that incrementalism is doomed. This, in turn, could destabilise Taiwanese politics. “I’m pessimistic, but I do hope it passes.”

Back at TSP headquarters, Chen Yi-chi expresses similar sentiments. As he escorts me to the elevator, we pass the wall of shame again. Shaking his head in frustration, Chen says Taiwanese have been reduced to “self-censorship” for fear of enraging China. The constitution, he believes, should never be sacrosanct. “Revising the constitution represents protection of democratic freedom,” Chen says. “If Taiwan wants to decide its future and China says ‘no’, they are attacking the practice of democracy.”

Decades ago I changed my position on the issue of “gun control”. Even though I still believe liberals are correct about the unfortunate predicament created by our founders, I now hold that we must tolerate privately held guns and all that comes with them. That may sound like a paradox, but once you understand the tensions internal to the mind of an armed American liberal, you will understand something fundamental about the American experiment.

Portland, where I live, is an absurdly progressive city on the compulsively liberal Pacific coast. But that isn’t the whole story. Washington, Oregon, and California, the three left-coast states, vote as a Democratic block. But that’s not because we lack for conservatives. We have lots of them. They are just consistently outnumbered and outvoted.

I should probably explain here that, although I believe that liberals are right about the unacceptable cost of our second amendment rights, conservatives are closer to correct, as I see it, about the governing of our cities — a fact that becomes glaringly obvious if you visit Los Angeles, Seattle or San Francisco and compare it to any major city in conservative Texas. American liberals don’t seem to understand that their values cannot simply be implemented locally. That’s partly why I’m armed like a conservative despite my liberal values. But I digress.

Suggested reading

Why anarchy has come to America

By Mary Harrington

That day at the gun shop, most of the people I stood in line with were conservatives who felt like they could use a bit more firepower. And I couldn’t fault them. So did I, apparently. I imagine they sized me up and read me as a liberal. I’m pretty sure I look like one. But I felt welcome, or at least as welcome as one can in an environment where there is a run on guns and ammo.

And there was indeed a run, as there always is when the population is on edge. When Americans worry, they buy guns. Some of that is irrational, as the guns they bought in previous panics are likely to last a good long time. Some of it is people arming themselves for the first time. And some of it is intuitive — the result of a somewhat vague reassessment of the level of need.

The gun shop was visibly strange in those early pandemic days. It looked like it had been stripped. The wall behind the counter that would normally display perhaps 100 different models of handgun had maybe 20 — guns no one really wanted but would eventually be reluctantly purchased by some Johnny-come-lately. But it was the state of the ammo that was most striking. In the major calibers there wasn’t any, a pattern that everyone in the shop knew was repeated all over town, and indeed across the entire country. Ammunition manufacturers couldn’t keep up. When a crate of ammo was occasionally delivered to the shop, it was target ammo, not ideal for self-defence, and it was rationed to one box per family, per week. Welcome to America.

In the gun shop, no one was troubled by novices, or even liberals. Explanations were patient. It’s a surprisingly courteous, agreeable, and highly technical culture: no one knows more than gun enthusiasts about the hazards that come with firearms, and such people take a very dim view of those who treat guns casually.

I suspect the notable courtesy was at least partly the natural result of the level of armament. The staff were surely all armed. So too, I would guess, were the clientele — it is legal in Oregon to have a concealed handgun given the proper, easily obtained permit. In such an environment heightened tensions are quickly noted, and de-escalation is an ever-present priority. It is, in some sense, the opposite of Twitter, where no one is armed and people are routinely terrible to each other.

There was one woman behind the counter, who had the unenviable task of running background checks for every firearm purchased. In most cases that meant she had to disappoint customers and tell them it would be days or weeks before they will be able to collect their weapons. She had been ringing up and disappointing people, non-stop for weeks. As I neared the front of the line I heard her say to the room: “I don’t get it. Do they think they’re going to shoot a virus?”

“It’s not the virus they’re worried about,” I offered. “It’s their neighbours if the food runs out.”

There was a general murmur of agreement, and I was glad to have brought something useful to the party. But looking back, I don’t think my explanation was complete. In fact, I’m sure it wasn’t.

Suggested reading

Kyle Rittenhouse could still tear America apart

By Park MacDougald

Most of those stocking up on guns and ammo belong to a culture, and like every other culture, it has its beliefs, suppositions and fears. That culture believes that tyranny may descend on us, even here in the freedom-loving United States of America, and that privately held guns are the key to fending it off. I’m not a member of this culture, but I believe they may well be right about this.

In a country where politicians are increasingly prone to withdraw or stand-down the police to curry favour with confused constituents, it is easy to see how things can quickly escalate as they did in Kenosha, Wisconsin the night Kyle Rittenhouse shot three men in self-defence at a riot. To be clear, I do not believe Rittenhouse, then 17-years-old, should have been there with his AR-15. But I also don’t believe the streets of American cities should ever be ceded to violent ideological bullies — a now familiar pattern that set the stage for Rittenhouse’s actions.

To understand why private guns may be decisive in a fight against tyranny, let’s take a moment to revisit what is assuredly the most inscrutable section of the United States Constitution, the Second Amendment: “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

It’s almost like a deliberate non-sequitur. In fact, after decades of pondering the question, I’m now fairly convinced that that is exactly what the founders gave us: an intentionally vague pronouncement designed to force the question into the future, to ensure it would be repeatedly reevaluated to keep up with changing weaponry and circumstances. Near as I can tell, it’s a place holder for a principle they could not tailor in advance.

They clearly didn’t want to give the legislature or the courts complete latitude. They tied our hands; our representatives are not allowed to disarm the public, even if a majority desires it. And the founders gave us a strong hint about why — something about the need to protect a “free state” from, you know… stuff. But they didn’t tell us how much firepower citizens should be allowed to have. And thank goodness they didn’t, because muzzle-loaded weapons are no better a model of modern weapons than a movable-type printing press is for an algorithmically personalised infinite scroll.

The second amendment contains two conundrums, one novel and one original. The modern trouble is relatively straightforward: What does it mean not to “infringe” on the right to bear arms? In the 18^th century that was far simpler because, although guns have always been a force multiplier for an individual, the factor by which an individual’s force was multiplied was so much lower. Back then, within reason, a person could be trusted to buy the guns they wanted to own.

More from this author

How anarchists captured Portland

By Bret Weinstein

On first glance, the original puzzle also seems uncomplicated: The state is going to need a fighting force if it is to remain free. But the longer one stares, the stranger this pronouncement seems. What militia, regulations and state were they even referring to? Is it a reference to the Army? No, the Army already existed and could have been referenced if that was their intent, having arisen first as the Continental Army that fought and won the revolution after it was formed in 1775, later to be re-founded as the United States Army in 1784 — seven years prior to the 1791 ratification of the Bill of Rights with its “well-regulated militia” riddle embedded in its second amendment. So if it wasn’t the Army protecting the “free state” they meant to invoke, then it must really have been the people — but against whom? And what is “a well-regulated militia” and where is it going to come from and in what way is it to be regulated other than “well”?

As a young man I regarded the second amendment as the founders’ biggest blunder. As we head into 2022, my position has flipped — I now believe history may well come to regard it as the most far-sighted thing the founders did, not in spite of its vagueness, but because of it. It’s like a mysterious passage from a sacred text that forces living people to interpret it in a modern context. The founders believed the people needed to be able to defend their free state — with deadly force — whether that refers to a geographical state, or a state of being, or both.

It’s not that I don’t see the terrible carnage which comes from ubiquitous guns. I do see it, and I detest it just like every other decent American. I know that a single deranged or careless person can rob us of anyone, at any time. No American is exempt. Not our families, nor our leaders. It is a terrifying realisation. With modern weapons an individual can kill dozens. It has happened many times, and it will happen again.

I find none of this remotely acceptable as a human, or an American. Remember, I said at the beginning that I believe that the liberals are basically right about the staggering cost of ubiquitous guns. Further, I don’t believe the net effect of ubiquitous guns during an average year, or decade, or century is a reduction in harm. It’s a complex picture, but many Western nations have managed crime as well or better than the US without the population being armed. On long timescales, however, I suspect this trend reverses. A nation’s descent into tyranny can kill millions, and it can drag continents, or the world as a whole, into war.

The terrifying carnage that derives from the right to bear arms must, in the end, be compared to the cost of not having that right, not only for the individual, but for the republic and its neighbours at a minimum. If you imagine that tyranny cannot happen in America due to some safeguard built into our system, or by virtue of some immunity residing in the population itself, then perhaps there is nothing left to discuss.

More from this author

The day American justice died

By Bret Weinstein

For my part, I don’t believe it. In fact, I believe I know better, both as a scholar and as someone who was falsely accused of racism and hunted in my own neighbourhood — with the police withdrawn in a foolish attempt to appease the mob. And I suspect that if we put the question to a vote, the fraction of the citizenry who believes tyranny could happen here is rising rapidly, even if we don’t necessarily agree on its most likely source. Of course, the fact that tyranny may happen anywhere is not sufficient counterweight to the unacceptable cost of ubiquitous modern firearms. To imagine that cost is outweighed, one must also believe that an armed population is in a position to fend off tyrants.

This, I admit, is by no means clear. Many will correctly point out that no matter how many semi-automatic weapons are in private hands, it will never be a match for the firepower of the guns — including fully automatic guns — in the publicly funded arsenals that, the argument goes, are in danger of finding themselves at the disposal of tyrants. When you add to that the incredible range of weapons and weapon-systems for which the public has no answer, it’s a slam dunk: in a head-to-head conflict between a treasonous, tyrant-led US military on the one hand, and freedom-loving Americans on the other, the military would trounce any number of militias, no matter how “well-regulated”.

But that isn’t really a persuasive argument, for two reasons. First, who decided this would be a fair fight? How many times will the US military have to find itself stalemated by inferior forces before we incorporate the lesson of asymmetric warfare into our national consciousness?

When our family lived in Olympia, Washington, we frequently saw foxes in our backyard. We learned not to worry about our cats because the foxes seemed to simply ignore them. Here in Portland, we have coyotes instead of foxes and neighbourhood cats are constantly disappearing. Does this imply that a wild fox can’t beat a housecat while a coyote can? As a mammalogist I’m sure that’s not it. A fox would almost always win a fight to the death with a domestic cat. But a house cat is capable of doing enough damage on the way out to dissuade anything but a desperate fox from trying it. An armed populace might not be able to defeat a tyrant’s army, but they could well punish it into retreat.

The second reason an armed population might succeed against the military-gone-rogue is that it is exceedingly unlikely the entire military would accept immoral orders. Either they would divide over the question, and the armed populace would end up fighting alongside the hopefully large portion of the military who remained loyal to the Constitution and their fellow citizens. Or those who would naturally resist immoral orders would have been purged from the uniformed ranks under some pretext that discovers and discharges those with independent minds, returning these non-compliant souls home to their well-armed families and neighbourhoods. Either way, private gun ownership might well prove decisive in a periodic contest between “patriots and tyrants”.

I expect this argument will prove unpopular. Are we really that near the brink of tyranny in America? I don’t know. I think it’s plausible enough that it would be irresponsible not to discuss what might happen.

Suggested reading

Would America survive a civil war?

By Malcom Kyeyune

I also think it is worth taking a brief look at Australia to discern whether it has any lessons for us. Australia is, after all, a nation with many similarities to the US: it had its own permissive gun ownership laws and culture until the 1996 massacre in Port Arthur, Tasmania, in which 35 people were killed. The alterations in Australia’s gun laws and the gun buyback programme that followed are frequently held up as a possible model for American gun reform. And they make a strong case that massacres and other gun violence can indeed be greatly reduced by such a programme. But at what price?

I have to tell you, I’m finding it very difficult to make full sense of events in Australia at the moment. I see things that look a lot like tyranny reported from there. I have friends — people I know personally and trust — fleeing Australia due to what looks to them and sounds to me like tyranny. And I have interviewed Australians who describe absolutely tyrannical encounters they are having with governmental authorities.

But I also see respected people assuring me the picture we are getting is distorted. Whatever the truth, as the ideals of the liberal West spread like wildfire during the 20^th century, I fear we Americans were lulled into a false sense of complacency as freedom caught on in region after region and appeared to become permanent. I don’t know if we will ever fully discern our founder’s intent with respect to the second amendment. But I strongly suspect their understanding of freedom, freshly won, was much more realistic than ours.

This is what gun ownership comes down to, whether you’re a liberal or a conservative. If there is a way to protect liberty from spasms of tyranny that does not condemn us to the spectacular cost of regular gun violence, I’d love to know it. But if the dynamism of the West, the productivity, the ingenuity, and the quest for fairness can only be protected from tyrants at the point of a gun, then so be it.

And that’s why people worry about Prince Charles. Our future king threatens to be a politically active monarch. “I simply can’t see what I see and do nothing about it. I could not live with myself,” he told his biographer, Jonathan Dimbleby. The Black Spider Memos were the most worrying of his interventions to date; they revealed him successfully pestering ministers for changes in policy and spending. It is impossible to imagine the Queen sending 27 notes to ministers in just over a year asking for, among other things, specific items of defence expenditure. Perhaps Dimbleby is right to say, “a quiet constitutional revolution is afoot.”

And maybe that’s no bad thing. The last monarch to have a major influence over modern politics staged a few vital interventions. As Jane Ridley, author of a new biography of George V, told me: “George’s role was not to change things politically, but to react to events and crises, which he did with aplomb. He enabled the appointment of prime ministers at times when, through war or through political realignment, the party system was not functioning to produce agreed candidates.”

The political system has matured and stabilised since then. But it’s certainly showing its age now. It’s not unreasonable to imagine that, in the coming years, it will become so dysfunctional that a monarch must stick his nose in. And if he is obliged to be a more political monarch than his mother — long may she live — Charles ought to read Ridley’s account of his great-grandfather’s life, which provides a blueprint for how a monarch might effectively and acceptably involve himself in politics.

But it could also help Charles learn from his great-grandfather’s mistakes. For one thing, he needs to keep his voice down. George was notorious for blurting out his country-squire opinions. (“Of course you said it, George,” his wife, Queen Mary, admonishes him at one point, “we all heard you.”) Neutrality did not come naturally. He was so obviously a Tory. Just after he became king, when the Liberal Party was in power, he told the Permanent Secretary to the Treasury, “I don’t know how you can go on serving that damned fellow Lloyd George.” These ministers weren’t exactly thrilled to be working with a rude, reactionary king who they thought was “a dunderhead”. Especially because the nation was in the middle of a constitutional crisis.

More from this author

When the Lords began to crumble

By Henry Oliver

The House of Lords had voted down a budget for the first time in centuries, and the Liberal government was threatening to neuter their lordships with the Parliament Bill, which would abolish the Lords’ veto of legislation. The Liberals prevailed — by manipulating the naïve new king. The PM, Asquith, bounced George V into a promise to create hundreds of new peers to vote through the Parliament Bill, if it didn’t get through the first time, by threatening a “King and Peers vs The People election”. George’s private secretary, Knollys, advised the king to make the promise — having not told him that if the Liberals resigned, the Tories would take over, avoiding the threatened election. (Knollys was rightly sacked for this low-grade duplicity.)

When the bill went to the Lords, it looked like Tory peers would defeat it. George couldn’t let that happen. If the Tory peers voted the Bill down, he would have to make good on his promise. And a supposedly neutral constitutional monarch would be in terrible trouble if he created hundreds of peers to favour one party over another. Talk about interfering.

His other private secretary, Lord Stamfordham, sprang to action. Ridley has been much praised for rescuing George from his reputation as a dullard. She ought to be celebrated, too, as a political historian: she has discovered that Stamfordham asked the Archbishop of Canterbury to get the bishops in the Lords to vote for the bill. A former Viceroy of India was summoned from Scotland to do the same. Lord St Aldwyn was “encouraged” to vote the right way, while Lord Rosebery was outright asked to do so. He did — and took 20 others into the lobby with him. The bill passed by 17 votes. There we have it: the palace’s interventions were decisive in a parliamentary vote.

Suggested reading

Prince Charles has finally won

By Will Lloyd

This is, supposedly, unthinkable. So strict is the non-interference principle, the monarch isn’t even allowed to go into the House of Commons, let alone have their flunkies tip the balance in a legislative vote. Imagine the uproar if it was revealed that Charles had persuaded enough of his aristocratic friends to squeeze a bill through Parliament. But George was dragged into politics by Asquith, and if the palace hadn’t interfered in the vote, he’d have ended up doing something even worse: making a load of new lords. Charles’s second lesson, then, is to keep out of things unless strictly necessary.

This was sharp work, especially from Stamfordham, one of the many supporting characters expertly handled by Ridley, who makes the page fizz, bristle, and shuffle with figures like the fantastically waspish Lady Geraldine Somerset, the heart-breaking Prince John, and the blinking but quietly effective Royal Librarian, Owen Morshead (you can practically hear him cough politely). Stamfordham is the best of them though: the king’s loyal retainer, darting around London, corralling politicians and producing clear, effective memos that kept the king better informed than his ministers. Like Jeeves, he always appears at the right moment with a solution to George’s woes.

Stamfordham’s advice kept George on the right side of the constitution. During the Irish Home Rule crisis, George drafted a crude letter threatening to veto a bill unless it was put to the electorate — something no monarch has done since 1708. The accepted wisdom is that the royal veto no longer exists. But Vernon Bogdanor, the constitutional expert, has said that the use of the veto in similar situations remains an open question. Imagine Parliament sent Charles III a bill to abolish civil liberties. We might well prefer him to copy his great-grandfather’s threatened intervention than his mother’s scrupulous impartiality.

More from this author

The snake who saved the monarchy

By Henry Oliver

It was the very real threat of civil war in Ireland — a threat the complacent Asquith met with endless rounds of champagne and bridge — that drove George to meddle. Sounding a lot like Charles in conversation with Dimbleby, he wrote to Asquith in 1914, “I cannot help feeling that the government is drifting and taking me with it.” And without George, Ulster might have been bloodier: he organised a non-partisan conference, for instance, and told Bonar Law, the Tory leader, to restrain his practically seditious rhetoric — which is more than we expect of the Queen, but less than we might get from Charles.

Although he liked to flex his fading prerogative — like when he outrageously tried to refuse Lloyd George an election in 1918 — George turned his role into an enabling one. When he was asked to open the new Parliament in Belfast, he insisted on giving a speech in favour of peace. The speech opened the way for talks, proposed by that quiet hero Lord Stamfordham, leading to the Anglo-Irish treaty. The palace were arbitrators, not partisans.

It took the same role when Bonar Law resigned as prime minister in 1923, he was too ill to nominate a successor. Commotion ensued. The choice was between the unknown Stanley Baldwin and the experienced Lord Curzon. Curzon was the obvious choice to almost everyone, especially himself. But he was a peer. And it was increasingly obvious that having a lord for PM was unacceptable in the new age of democracy. The Conservative party chairman was inundated with letters for Baldwin, but it took a royal intervention to sort out the kerfuffle. George, in consultation with the party’s biggest actors — including Balfour and Salisbury — picked Stanley.

Nowadays, the Queen waits for the party to appoint a leader, taking a purely ceremonial role (imagine if she’d weighed in on the choice between Boris and Hunt). But the systems we use for selecting leaders will be challenged on day. Charles might have to do what George did and make a neutral intervention to keep the system running. We might be grateful.

Suggested reading

It's the Queen or tyranny

By Mary Harrington

But Charles will have to learn to moderate himself. Ridley’s portrait is a of a deeply Tory, reactionary man, who learned from experience to rise above politics and intervene without prejudice. The same king who bellowed at a footman who dropped a tray, “That’s right, break up the bloody palace!”, sharply admonished a coal rich aristocrat who was bad mouthing the unions to “try living on their wages before judging the strikes.” When the government wanted to stop banks paying Russian money to unions during the General Strike, George intervened, furious at this attempt to “touch the pockets” of strikers. He had come a long way since the 1911 railway strike, when he wrote to Asquith proposing legislation to stop strikes spreading. At that point, he and Mary were worried about “encouraging socialism… and pandering to the Labour party”. Like our Queen, he moved with the times.

Unlike previous biographers, Ridley takes no superior pleasure in painting George as a philistine. She combines a historian’s rigour with even-handed admiration for George’s gruff and prickly character. He wasn’t cultured or metropolitan, but he well understood the way the country was changing and how politics needed to follow, despite the fact that he didn’t appreciate Cezanne.

It’s not uncommon for people to mock Charles, either. He’s no philistine, but he is a crank. There may be more acceptance of his views, but like George he seems to belong to another world. While the Queen is timeless, Charles is old-fashioned. Where she is restrained, he is amateurishly enthusiastic, passionately gathering causes. He isn’t known for his temper (George was almost constantly in a foul mood), but he has the air of being high maintenance. Let’s hope he finds himself a courtier as good Lord Stamfordham.

What might be more important, though, is Camilla. George’s Queen, the redoubtable Mary, has, until now, been undervalued as an effective consort; but Ridley shows her at George’s side, an essential part of the process. “George always used to tell me everything first”, Mary said as a dowager. If Charles has to be a politically active monarch, his success may well rely on his famously enduring bond with Camilla.

If you think we live in dramatic political times, this Act was the product of a much more febrile and rambunctious period. There was no single cause of the Lords crisis; it was a combination of inevitable changes in democratic politics, high cunning, and silly plots. If there was a single event that set things in motion, it was this: in December 1905, Arthur Balfour became the last Prime Minister to cede power to the leader of the opposition without having first been defeated in a general election. He thought the Liberals would disagree about Ireland and be unable to form a cabinet. Instead, they did the obvious thing: got themselves in order and called an election against a long-serving, increasingly out-of-touch government.

In early 1906, the Liberal Party won a whopping victory, increasing their seat count by 214. Balfour became another last: the last Prime Minister to lose his seat in an election. Defeat didn’t dent his belief that his party ought to be the ultimate arbiters, though. Balfour announced: “The great Unionist Party should still control, whether in power or in opposition, the destinies of this great Empire.” These Liberals weren’t the sort of chaps you want handling questions of empire and social reform. The Tories must remain in charge, one way or another.

Balfour’s statement might seem like the usual press release bluster. But the leader had a scheme. The Tories had a stonking majority of hereditary peers in the House of Lords. And so, having lost an election in the lower house, Balfour started running the country from the upper. He and Lord Lansdowne, Conservative leader in the Lords, thought they could take an approach of “caution and tact” to voting down government legislation in the Lords. It didn’t work. In 1907, the Liberal government passed nine measures in the Commons. The Lords rejected five of them. Lloyd George jibed that the peerage was Mr Balfour’s poodle.

More from this author

The snake who saved the monarchy

By Henry Oliver

Tory brass knew Lords reform was necessary. Balfour agreed in principle. But he ended up rejecting the idea, claiming that Lords reforming would weaken the Commons (this from the man using Earls and Marquesses to vote down government legislation!) Not that Balfour felt the need to demean himself with explanations; he was still Tory leader largely because no-one else could take over. He was too posh to push: “I am certainly not going to condescend to go about the country explaining that I am ‘honest and industrious’ like a second coachman out of place!”

Meanwhile Balfour saw opportunity in the threat of the growing German navy. He pushed the Liberals to accept that British ships had to be built. This neat distraction unified his grouchy party. New ships meant new taxes. The Tories preferred the indirect taxation of putting tariffs on imports — making food more expensive. The justification was that age-old Tory favourite: the alternative was the confiscation of private property, the thin end of the socialistic wedge. The Liberals, led by H. H. Asquith, stood for Free Trade and Cheap Bread — and had to accommodate themselves to the new class of Labour voters who had made themselves known in the 1906 election. In the 1909 budget, the Chancellor David Lloyd George proposed raising money via a “super-tax” on the wealthy, as well as other taxes designed to hit landowners.

Balfour and Lansdowne wanted to let the budget pass the Lords, although some peers threatened to sack their staff in protest at the new taxes. Then Lloyd George gave his Limehouse speech, throwing shade on the recalcitrant toffs: “What is the labour they are going to choose for dismissal? Are they going to threaten to devastate rural England by feeding and dressing themselves?” Tory peers frothed. Balfour schemed again. If the Lords voted down the budget, there would be a general election, and the Tories could promise tariffs that would protect British jobs. The peers rejected the budget. The first election of 1910 was held (with 92% turnout). The Liberals lost 123 seats.

Suggested reading

Bring on the People's Peers

By Richard Askwith

The brouhaha really got going at this point. The Liberals stayed in government with the support of Irish Nationalists and Labour, giving them a majority of over a hundred. The alliance complicated the game. Passing the budget was no longer sufficient. The Irish Nationalists insisted that the Lords must lose their veto, something Liberals had been talking about since the 1880s, so that a bill could be passed giving Home Rule to Ireland. To the Tory party, this was intensely unacceptable.

There followed months of protracted and frankly useless negotiations. As always with Lords reform, a slew of clever but unpopular proposals came and went like the tide. There were Tories who would have accepted a form of federal Home Rule, but Lansdowne was stubborn. This, you see, was the thin end of the imperial wedge. There was even a plan to mix life peerages and a select number of hereditaries. Ultimately, there was no compromise. The crisis was crystallising dividing lines in British politics that would continue for years.

A second 1910 election was held. Only this time, Asquith had a scheme worthy of Balfour. There was a new king, George V, and the Prime Minister had secretly got him to agree to create a mass of new peers that would vote for the legislation, if necessary. Edward VII had refused him this promise without a second election, but George, having been on the throne for less than seven months, was bounced into rather flustered agreement by the duplicitous Asquith. The game was up. Balfour had schemed his way into a ridiculous position. The King had been duped. The Tory peers had gained nothing by holding out for everything.

Suggested reading

The rot at the heart of Westminster

By Aris Roussinos

The Parliament Act 1911 passed the Commons five months after the second 1910 election. While Asquith drew up his list of potential new peers to swamp the Lords, Balfour was labouring under the strange idea that the king might take the Tory side. It was quite a shock when Asquith present the list in July. He spent half an hour at the dispatch box, his voice hardly audible as Tory MPs howled “Traitor! Traitor! Traitor!” Balfour caved and announced his shadow cabinet’s policy: to pass the bill. By November, he had resigned. Many Tory peers became “last ditchers,” opposing Asquith to the bitter end. Most, of course, flaked out.

The peers’ great fear, besides Irish Home Rule, was that the hereditary principle would be toppled. Life peerages, which would allow commoners to sit in the Lords, were mooted in this crisis. They weren’t introduced until the 1950s, though. And the hereditary peers weren’t removed from the House of Lords until 1999. Those negotiations ran much more smoothly thanks to the under rated Robert Gascoyne-Cecil, 7th Marquess of Salisbury. A master of High Politics who makes Peter Mandelson look like a playground gossip, Salisbury negotiated for 92 hereditary peers to retain their place in the Lords. Unlike Balfour, Salisbury knew the value of compromise. Those hereditary peers don’t seem to be going anywhere, anytime soon.

Still, every time a government is elected, more life peers are added to make sure the numbers even out. There are now nearly 800 members. Charles Moore described it as “an ermine slum.” It is the only upper chamber in the world that is bigger than the lower chamber. Many peers are useless. The Lords lingers on, but calls for reform and complaints of its wastefulness are frequent. As with the negotiations of 1910, there is a plethora of proposals about what to do with them. Most are convoluted, impractical, or simply haphazard (remember Nick Clegg’s Senate?). Robert Salisbury has proposed the simplest answer of anyone: “a directly elected federal parliament. It would sit in the chamber of the House of Lords. The House of Lords would be abolished… The chamber of the Commons would become the seat of the English parliament.”

It is hard to imagine an idea less favourable to the “last ditchers” who so passionately objected to the Parliament Act 1911 — which can only be another reason to implement it. If only someone with sufficient vision could persuade him back into politics: Lord Salisbury retired from the House of Lords in 2017, on the day of Theresa May’s snap general election. Her Brexit nightmare and Boris’s ineptitude have revived many of the conditions of the 1910 crisis. And the House of Lords is the unsolved problem of British democracy we always return to at such times. Many of the semi-redundant life peers are now just as keen to keep their place as the hereditaries used to be. They should worry about a new Balfour coming to defend them. Then their time really would be up.

I wrote two of them, both hugely optimistic about the place. One is literally called Have A Nice Day. I hailed Americans’ sobriety and the gentle virtues of their system of government. It was published in 2009. How was I to know they were about to get high on Fentanyl and elect Donald Trump?

Anyway, it is with some annoyance that I have to tell you my friend Nick Bryant, the BBC’s New York correspondent, has written the antidote to all these vapid takes, mine included. Nick comes across on the news as a bit of a lad — actually he is a bit of a lad — but he is also a historian with a deep understanding of what makes America tick. And When America Stopped Being Great is an absolutely belting achievement for a hack, and an Englishman to boot. It is, as the title suggests, an elegy for a lost nation and a lost cause. The Washington Post gave the book a long and favourable review, calling it, “riveting, often revelatory, crammed with facts, occasionally personal, and almost always depressing”.

It is also wrong.

Not in its description of modern-day America, which Bryant knows well and captures superbly. The inequality, the intellectual poverty, the extremism, the mass shootings, the end of civility in debates on abortion or guns or anything. But he is wrong about the constitution. He points out — rightly — that it’s under pressure from modernity. A good example: Democrats can win the popular vote in seven of the last eight presidential elections, but the Republicans have nominated 15 of the last 19 Supreme Court justices. “That is why,” Bryant writes, “talk of a reboot or a reset of the current obsolete operating system is so misplaced.”

Really? Tinkering could sort things for another hundred years or so. Fixing the Senate to reduce the impact of the rural minority won’t be decorous or easy, but is it impossible? Might an America that conquered the empty(ish) spaces in the first place not manage to reinvigorate them, repopulate them with businesses no longer tethered to coasts — or physical places at all — and so rebalance political power?

Others have also thought the place was going to the dogs. I mean properly believing the system to be broken. So perhaps the answer to the current crisis, as Dennis Rasmussen suggests in his thought-provoking book Fears of a Setting Sun, can be found in the fears of her founders. The men who invented America mostly thought their invention a disaster, a mess from the start. As Rasmussen points out, even in George Washington’s time hatred poisoned everything: “The two main parties saw and treated each other not just as opponents who advocated the wrong policies, but rather as enemies of the Constitution who actively sought to subvert the basic principles of the Revolution… Newspaper polemics included ‘some of the ripest vituperation in American literary history’, in the words of one scholar. Cries of treason entered virtually every political debate, fears of foreign plots abounded, and physical violence was lamentably commonplace.”

More from this author

The death of American dignity

By Justin Webb

Perhaps we became too used to the idea, in the post-Watergate era, of America as stable. A nation always there, indispensable, wise, mostly well run. But it was not in its early years and it has not been oftentimes in its history. Nevertheless: hey, it survives. And, with a few twists and turns, it prospers.

Rasmussen’s book is important because it reminds us not only that the founding fathers were disappointed with their creation but that they had reason to be. It really was a basket case (a “shithole country”, to use Trump’s terminology). With the notable exception of James Madison, Rasmussen writes, all of America’s early leaders, including Washington, John Adams, Thomas Jefferson, and Alexander Hamilton, were pessimistic that the American experiment in republican democracy would endure. They thought that Americans were too venal or stupid to cope with politics. They thought the federal system would buckle. They thought factions would bring the whole edifice down.

“The founders,” Rasmussen tells us, “frequently predicted that the republic that they had established would not last beyond their own generation — that the union would soon be sundered, that a new constitutional convention would have be to called, or that the government would gradually lapse into a hereditary monarchy.”

They also thought foreigners would interfere with American elections and affect the results. Ok, not Russia, but still, the idea of “intrigue” from abroad is not new. Nor is the idea of hereditary rule — of the kind that pits Trump children against Biden children or Clinton children or perhaps even Obama children into the distant decades. Adams predicted it; he thought it inevitable. He would not be delighted by the news that Rudy Giuliani’s son Andrew wants to be New York state’s next Governor, but he would not be surprised.

Suggested reading

Covid has exposed America as a failed state

By Aris Roussinos

And on and on the jeremiads go; down the ages they echo. Even Jefferson, the most optimistic of the founders, succumbs to disillusion in old age. Only Madison stands up for America and thinks it might work out alright, and he does so because, Rasmussen says, he compares the place to other regimes, not to some idealised perfect system of government.

Perhaps that is the key.

So how are they doing now, the Americans, post Trump? Better or worse than China on freedom; than Russia on state sponsored crime; than the EU on technological achievement? America is indeed badly governed and horribly divided, but is it moribund, as Nick Bryant argues, or merely troubled? Bryant suggests that if his young daughter wanted to see the most thrusting nation in the world, China might be the place to visit — though he hopes she would recognise the cruel authoritarianism of its system. Otherwise she could go to Australia for its lifestyle, an Asian mega-city for a glimpse of the future.

These places all have their strengths — though China will strike many as a pretty unconvincing role model — but none is anything like as vibrant as America, where everyone has come to play. America, where anything might happen — from a school shooting to the conquest of cancer. A nation that can combust with coronavirus but then invent and manufacture multiple vaccines and distribute them in huge numbers. A nation that can delegitimise government and then (perhaps, under Biden) rediscover its importance. A nation often deranged, but seldom stumped for long.

Madison’s other gift to modernity was a belief that politics could be a constant, unending argument without any shared understanding of the common good — but still work. He saw all America’s bipartisan talk as nice to have but unnecessary. Perhaps America was never meant to be united, free from factions, common in purpose. Perhaps it was always best seen as a herding of political cats, hissing and fissiparous from the start.

Suggested reading

Where the American Dream goes to die

By Ian Birrell

Seen through that lens, Donald Trump looks less frightening. As Rasmussen suggests of the modern era: “We no longer face repeated, serious threats of secession and civil war. Political violence is far less common today … No contemporary election can compare with the presidential election of 1800 — a contest between Jefferson and Adams, two of our most revered founders — in terms of sheer viciousness. Today’s much-maligned ‘mainstream media’ is in reality far more responsible and fact based than the newspapers of the 1790s.”

America’s problems are more intractable but less existentially threatening than many suppose. They were there from the start. They are there today. And tomorrow?

I am not betting against the place. Nick Bryant says he fears more American Carnage, to use Donald Trump’s memorable phrase from his inaugural speech. It is true that some on the American Right have given up on their fellow citizens — particularly those with darker skin who have more recently arrived. It is also true that plenty on the Left have done the same thing, with rural white folk, whose “deaths of despair” can feel rooted more in lost status than lost life chances. It is true, too, that too many people are shot — or shoot themselves — though you have to be careful here. Most American lives are free of violence and the number of households with guns — around 42% — is not much changed from decades ago: they just have more of them.

Neither Rasmussen nor Bryant reach firm conclusions. This is wise. There is no American denouement in the offing. Any properly terminal decline, or reset towards revivification, will be imperceptible at first, and argued over forever. That’s always been the point of the place. The argument about the best path to political progress is not always edifying but is always, and forever, worth having. And America, forever, will be the place to have it.

Rather, my rethink concerns the British constitution – and why, I’ve finally come to the conclusion, we need a written one. 

Further reading

The EU's soul-destroying rhetoric

By Giles Fraser

Technically, that’s what we’ve got already – our various bits of constitutional law are written down in various documents. However, it isn’t codified – i.e. drawn together into a single overarching document.

I’ve never thought we were less of a democracy for not having one of those. After all, history is littered with constitutions bearing the boot-prints of dictators. Like it or not, de facto power can squash de jure legitimacy. On that basis, one could argue that an all-over-the-place body of constitutional law is less vulnerable to tyrannical subversion than an easily amendable – or suspendable – codified constitution.

However, the events of the Boris Johnson premiership have convinced me that the make-it-up-as-we-go-along approach isn’t sustainable. I offer no comment on whether the Government was right to prorogue Parliament at this particular time; to me the real problem is that there should be any confusion as to the legality of the move.

It ought to be crystal clear what the rules are. Yes, there will be occasions when unforeseen developments – like America’s infamous hanging chads – present themselves, requiring a novel interpretation of the rules. But on something as basic as when parliament is or isn’t in session there’s no excuse for not knowing exactly where we stand.

There’s also no excuse for blatantly stupid provisions like the Fixed Term Parliament Act (FTPA) – which allows a government with no majority to be trapped in office by an opposition too frit to agree to an election.

The FTPA is an example of the way our existing constitutional arrangements have struggled to cope with this strange new era of hung parliaments, coalition governments, national referendums, asymmetric devolution, supranational institutions, and the botched reform of the House of Lords.

In short, it’s a mess, it’s getting worse and it’s time to sort it out.

*

Unfortunately, it’s often in the process of correction that one makes a fatal mistake. So, let me acknowledge the number one risk involved in codifying the constitution – which is that the enterprise would be hijacked by those keenest on the idea.

Further reading

Liberalism: the other God that failed

By John Gray

Advocates of a written constitution tend to be of a certain type – the we-know-best establishment liberal. Of course, liberalism is as legitimate a point of view as any other, but not one that should be privileged in a constitution to the extent of constraining democracy for decades to come. And, make no mistake, if the establishment take the lead on constitutional reform they will use it to entrench their power. To misquote George Orwell: “if you want to know what the future will be like, imagine Dominic Grieve and Harriet Harman stamping on the will of the people for ever.”

Now, you may be quite fond of Mr. Grieve and/or Ms. Harman. You may think the ‘will of the people’ a bogus concept. Fair enough. But, just like everyone else, you should have to fight for your beliefs at each and every election, not have them embedded in the body politic like an inoperable piece of shrapnel.

So if we’re to have a codified constitution for the whole country, we need some guiding principles. Here are five:

I. Continuity

From the outset it needs to be made plain that this new constitution is not a founding charter for the People’s Republic of Islington. The purpose of codification must be to organise and clarify the fundamental features of our existing constitutional arrangements – those tested by time and for which there is widespread popular support. So national sovereignty, constitutional monarchy, parliamentary democracy and so on and so forth. I’ll come on to a glaring exception below, but the general principle is this: if it ain’t broke, don’t fix it.

That said, codification shouldn’t mean fossilisation. Democracy is fundamental, of course – but if at some future point the voters wanted to, say, abolish the monarchy, they should be free to do so. Therefore we need a procedure for changing the constitution. In our current system, all that is usually required is a parliamentary majority. A codified constitution could replicate that, but, if it did, one would have ask why we’d bothered with codification at all.

Further reading

Look what happens when you ignore Parliament

By Diane Purkiss

Changing a constitution should require a higher hurdle – for instance a national referendum. Yes, the political establishment would hate that (which in itself recommends the idea). Referenda are also expensive, time-consuming and divisive. But that’s good too, because changing the constitution shouldn’t be cost free. In contrast to the Fixed Term Parliament Act, which was passed in a fit of absence of mind, the prospect of all future ‘reform’ must be sufficiently wince-inducing as to provoke forethought.

II: Rules not rights

If we want a ‘sticky constitution’ – i.e. one that can be changed, but not easily – then the fewer provisions it contains, the better. It’s therefore essential that codification doesn’t become overloaded with rights legislation – because you know what would happen: every single lobby group in the country would try to justify its existence by getting their trojan hobby horses into the final document.

Furthermore, this is how they’d make their demands – “if you don’t agree to X that we say is the only way of securing the rights of Y, then that shows you don’t care about Y – in fact, you’re probably Y-phobic, you bigot.”

Suggested reading

Our illiberal empire of rights

By John Gray

So, let’s not get bogged down in that. Codification must concentrate on rules not rights – settling the key questions about who governs in which circumstances as opposed to predetermining the government programme.

Of course, I’m aware that the 1998 Human Rights Act incorporates the European Convention of Human Rights into UK law. I’m not suggesting that a post-Brexit codification should reverse that, but it shouldn’t take Britain any further away from its homegrown legal tradition – which includes a long and impressive record of defending liberty.

III: Via negativa

Via negativa means ‘the negative way’. It isn’t a legal term, but refers to the old theological method of describing God by making statements about what God is not. More recently, Nassim Taleb has used the term to describe a method of approaching life generally – for instance, seeking to improve health not through unproven treatments of dubious worth, but by cutting out potential harms.

Further reading

Why Antifragile is the perfect read for today's turmoil

By Peter Franklin

We need a constitutional via negativa. Instead of relying on complicated innovations that may have unintended consequences – like the Fixed Term Parliament Act – we should first seek to make improvements by removing what we don’t need. In fact, repealing the FTPA would be an excellent place to start.

Admittedly, in deciding to codify the constitution we would have violated this principle, but it can still guide us. Instead of codifying to achieve positive outcomes that have so far not been attained (which, by definition, requires innovation) we should seek to avoid negative outcomes – relying on established precedent.

This doesn’t mean that government shouldn’t take risks or pursue progressive aims, just that it shouldn’t do so through the constitution – whose purpose is to serve as an anchor not a motor.

IV: Decentralisation

In any case, progress is best made from the bottom-up – through lots of local experiments. That way the successes can be copied and adapted for use elsewhere, while the failures are contained and learned from. This is what Taleb calls ‘optionality’.

However, optionality requires diversity and diversity requires decentralisation. One of the great failures of the British constitution in the modern age is that it did so little to hold back the over-centralisation of power. We should be proud of our long-established liberties – but their key weakness is that they go back to a time before the modern state, and thus provide scant defence against the top-down control made possible by the bureaucratic age.

More from this author

What's the point of central government?

By Peter Franklin

Codification would be an opportunity to put that right. Since 1997, we’ve seen power devolved to Scotland, Wales, Northern Ireland and London. Since 2010 there’s also been devolution to English cities and regions (though not to England as a whole). However, this is power given away by Westminster at its discretion, which it can choke-off or even take back altogether.

In his Confessions interview with Giles Fraser, the political philosopher Larry Siedentop makes the case that, post-Brexit, the United Kingdom must have a federal constitution. This means one in which all the power does not reside in one place (Westminster). Instead, a significant part of it would belong, inalienably, elsewhere: with national governments in Edinburgh, Cardiff and Belfast – and with a new English national government (in York) too. Within each home nation, there’d be further ‘deep devolution’, to cities and counties, and ultimately down to each community.

Don't let the liberals write our constitution

Subscribe:

V: Sovereignty

Brexit is ultimately about sovereignty. The will of the people – and I’m confident this includes many more than 52% of them – is that the United Kingdom of should remain an independent country.

One day that could change. Generations hence, we may wish to join a European superstate, a one world government, a federation of planets. But for now, and for the foreseeable future, we wish to govern ourselves. This is the most basic constitutional principle of them all and the foundation of our democracy. It is what a codified, written constitution must begin and end with.

At a time when they are under threat, the essentials of national sovereignty should be spelled out – if not exhaustively, then at least in terms of the most obvious and tangible components. Control of our borders, our currency, our armed forces: let these be written down – the pillars of an acquis Britannique.

If any or all are to be given away, let it be by one means and one means only – a direct vote of the British people.