Tuesday, September 6, 2022

Part I

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What Happens Across the Atlantic Matters: Britain Gets New Prime Minister in the Midst of Much Tumult — The U.S. Better Watch Closely

Few issues are more politically fundamental than constitutional issues, and constitutional issues are right in the forefront of headlines this week. Recent events, not only in the United States but indeed, most importantly in the last several days, elsewhere, we’re going to be looking to Great Britain. Then we’re going to be looking to Chile.

The big news coming out of Great Britain is that the nation has a new prime minister, a new head of government. In this case, it is Liz Truss. She was formerly the foreign minister. She has been in a succession of more than 10 cabinet posts over the course of the last several years of the Conservative Party government there in Great Britain. Most recently, she did serve as Britain’s foreign minister under the administration of the outgoing prime minister, Boris Johnson, a very popular, indeed populist figure who had reshaped much of British politics, won a landslide election in Parliament, but then went down to a personal defeat. Found to have broken party rules and COVID rules, and to have lied about it to the people, he eventually undermined his own political credibility, and the party basically decided that he had to go.

Now, immediately using that language points out, this is a very different system than the American constitutional system of government. More about that in just a moment. The big news is that Liz Truss becomes the new prime minister today, after meeting with the queen in Scotland. The outgoing prime minister, Boris Johnson, will have his audience with the queen who is the head of state, then the audience will be given to the incoming prime minister, and eventually Queen Elizabeth II will ask Liz Truss during that meeting today if she will take the reins of government and to become in effect the queen’s first minister. That is why you have the title prime minister. It means first minister. But before giving further detail to the prime minister’s role, let’s just consider the constitutional issues that are revealed even in just the vocabulary we have been using.

First of all, in the United States, the head of government and the head of state are the same person, the president of the United States, elected officially by the Electoral College, but elected by the votes of the American people translated through the Electoral College. As you are looking at the selection of Liz Truss as the new British prime minister, by the way, the third woman in Britain’s history to serve in that role, the fact is that less than one half of 1% of all British voters voted for her. That’s because we’re looking at a very, very different system, but Liz Truss as the new British prime minister is the head of government. She is decidedly not the head of state. Those roles are combined in the presidency under the United States constitution, but in Great Britain, there is no question that it is the sovereign, the monarch. In this case, Queen Elizabeth II, who is the head of state.

Indeed, she is so much the head of state that government constitutionally meets under her authority. The legitimacy of the British government is not found in elections. At least in historical terms, the legitimacy of the British government, indeed of the British state is located in the Crown, in the reigning monarch and the legitimacy of the monarchy. Now, this leads to some very interesting diplomatic situations in the United States. Our president is head of state and head of government, but when the president goes to Great Britain, he basically almost always has to meet with two different heads, with the head of state, Queen Elizabeth II, and with the head of government, whoever is then the British prime minister. When the prime minister of Britain comes to the United States, the prime minister is generally not met at the landing by the president of the United States because the prime minister is not the head of state, rather someone else does. In many cases, the vice president of the United States.

Well, almost immediately, you might ask the question, well, how old is the British constitution? They claim in many ways that it’s the oldest and longest running constitution in the history of Western nations. Does it go back to say the 13th century, the 1215, and the signing of the Magna Carta by King John? Well, it might, but we actually don’t know because there is no copy. No one has a copy of the British constitution. The queen doesn’t have a copy. Parliament doesn’t have a copy. Nobody has a copy because it has never been written down. The British constitution is basically a very long and ongoing tradition of custom law, statutes, all kinds of developments, and at times there have been summaries suggested as to how the British constitution works, or sometimes referred to as the English constitution in a more archaic form, but the reality is there just is no written constitution in Britain.

The head of government, however, fulfills an extremely important role because even as the queen, the current sovereign in the United Kingdom is the head of state, and even as government meets under the authority and legitimacy of the Crown, the Crown incredibly rarely actually intervenes in political affairs. That’s the way the British constitutional tradition would have it. The head of government is in some ways, in the government, more powerful internally than the president of the United States, who is both head of government and head of state. Why? It is because under Britain’s parliamentary system, the majority party, and that means the prime minister, is at least by custom the leader of the majority party. The majority party cannot lose a vote if it’s a party-line vote, thus the prime minister of Great Britain is in the position of being something like a prime minister and the Speaker of the U.S. House rolled together.

When the parliamentary system works, it is extremely efficient, but it’s efficient in one direction. Whichever party gains the majority of seats in the parliament or can put together a winning majority coalition, basically can push its agenda all the way through the government, in the House of Commons, and particularly in Britain’s administrative state. It was by the way, in response to the British system that the founders and framers of the United States constitution put together three different branches of government. Lots of similarity, so much so that it’s often referred to as the British, American constitutional continuity. But putting head of government and head of state in an elected office as the chief executive of the nation resolved a host of problems in the American mind, as looking to the operation of the British government. Furthermore, it made very clear that the legitimacy of the American government would be in the political system and in the vote of the people, not in say, a hereditary monarchy.

By the way, another interesting facet is that there is nothing. Remember, the constitution isn’t written down. There is nothing that requires the monarch to choose the leader of the party with the majority in parliament as the prime minister, but that has been the custom, and frankly, it’s just about the only way the system would work. But let’s go back to the vote. I mentioned that less than half of 1% of British voters had anything to say in the selection of Liz Truss as the new prime minister, as the new leader of the Conservative Party. Now, why was that the case? Well, it is because it was not a question presented to the British people. It wasn’t a vote presented to the British people at all. It was instead presented to the members of the Conservative Party who met in conference, and that meant that the total votes are something like 160,000 out of a total population of 67 million people.

Now, oddly enough, there were some people saying, “Look, how legitimate is this if less than one half of 1% chose the head of government?” But that’s the point. The British people do not directly choose the head of government, nor do they directly choose, to state the obvious, the head of state, the monarch. Furthermore, and here’s another wrinkle, Liz Truss was not the first choice of the Conservative Party members in parliament itself. That means that even as she starts out with a win at the Conservative Party conference, and even as the queen ask her to take the reins of government as her prime minister or first minister, the fact is she is in a significant political challenge, a huge challenge, and it’s not just within her own party. It has to do with huge issues that Britain is now facing.

Some of them are the fault of Conservative leaders before Liz Truss. Most importantly, the fact that since David Cameron, almost now a half generation ago, Britain’s Conservatives had basically been running from conservatism. Liz Truss, perhaps seeking to emulate the first woman prime minister of Great Britain that would be Margaret Thatcher, has sought to identify in a very clearly conservative direction. Now, there’s some ironies here. One of them is that she comes from a liberal family and that she had identified as a liberal Democrat during her adolescence, and at least during her college years, even calling for the abolition of the monarchy. Now, in one sense, that means that the meeting between the queen and the new first minister might be just a little tinged with irony there in Scotland today. But nonetheless, for her adult life, Liz Truss has been a decided conservative, basically converted to conservative ideas, even as she was confronted with the arguments back even as she was then a university student.

Under the succession of the prime ministers immediately before her of her own party, the Conservative Party, as I said, departed from conservative ideals and began to be the party of just a little less economic redistribution, than the formerly Socialist Labor Party, which still has very socialist temptations. But looking at this, you realize the structural challenges are massive. Britain is facing ongoing recession and the threat of years of stagnation. That is a stagnant economy matched with inflation. That’s a very bad combination and Britain remembers it very bitterly from the 1970s, but you also have other complications.

One of them has to do with Brexit, the vote by the British people to leave the European Union, but the fact is even as the vote was decisive, even Britain’s Conservative government has not moved very fast to capitalize on the vote. Furthermore, you have the war in Ukraine and the war in Ukraine is bringing about an energy crisis throughout all of Europe and estimates are that the British people may face no less than an 80% increase in energy costs going into the winter season. That is going to provide an enormous amount of political headwind for any politician, much less, an entirely new prime minister handed the baton and handed a host of problems in the middle of a very difficult political season.

But one thing Americans had better keep in mind, it’s not just that we share so much of a common heritage and a common language with Great Britain. We share a great deal more. And over the course of the last 200 years, there have been few allies so close to the United States as Great Britain, thus what happens in Great Britain really does matter here. What happens to them matters to us. One final very odd twist, political developments there often happen just a few years before similar patterns show up here. That raises another very interesting questions for Americans as we look, as they say, across the pond to our friends and allies in Britain.

Part II

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Not Even a Close Count: Chile Overwhelmingly Votes Down Proposed New (And Leftist) Constitution

But next, the scene is going to shift to another constitutional headline. This one coming from the nation of Chile in South America. This headline, the voters in Chile turned down a proposed new constitution. With 99.9% of the ballot boxes counted, 62% of voters had rejected the proposed leftist constitution, while 38% approved it. Now, here’s what’s so shocking. Just a matter of about two to three years ago, the Chilean people elected a new rather leftist government, and that government was elected with the promise of proposing a new constitution for the nation, but the constitution that was proposed was so liberal, so leftist, so out of step with Chilean society, that the very people who had just briefly before elected a government to rewrite the constitution, turned down the constitution that was brought them. Now, just about all observers recognize that the constitution failed because it was so radically leftist.

Now, there’s an interesting history behind all of this, and it has to do with the fact that throughout much of South America, there have been radical left, right swings in terms of the governments of many nations. Furthermore, in some of those nations, constitutions haven’t had a very long shelf life. One observer recently noted that the average written constitution last only about 17 years. Now, just compare that with the United States Constitution. Go back to 1789. You see the picture. That’s why even as Britain made claim the longest constitutional history, but no one has a copy, in terms of written constitutions, the most venerable is the constitution of the United States of America. The U.S. often claims to be a very young nation, and in one sense, say, measured over against ancient empires and European nations, we have a very short history. Only about 250 years and that not yet, but the reality is that our constitution has a longer history than any other written constitution of a constitutional government of any nation on the planet at any time.

But talking about left to right, that is to say, talking about liberal conservative swings and South America is not the only place that happens, but it’s happened there over the course of history many times, just think about how Chile got its current constitution. It got its current constitution under former Chile and strongman and military leader, Augusto Pinochet. Pinochet had been a general and he led a coup against the socialist government of that time, toppling the government, and he himself became head of state and head of government. And General Pinochet had a very tightfisted military rule, and a part of what he did in bringing about a form of order to Chile was to bring about a new constitution.

Now, Pinochet’s constitution is still the constitution of Chile, even as Chile is no longer under the rule of a military junta, but is instead a constitutionally elected government. But the new constitution that was brought about was simply far too radical for the voters of Chile. By the way, let’s just think about this for a moment. Augusto Pinochet led the military coup that brought his military conservative rightist government into power in 1973. He toppled Salvador Allende, who had been the leader of the nation and wasn’t a vowed socialist. So, there, you had a leftist government replaced by a rightist government. I won’t say conservative, but certainly rightist government. And now, you have a new, very liberal new leader of Chile, but his government couldn’t bring about a revised constitution that the Chilean people would support.

Now, one of the reasons that this constitutional proposal failed, well, I’ve said that it’s very liberal or leftist. But just understand, it basically sought to constitutionalize all kinds of rights that had everything to do with the sexual revolution, with the redefinition of marriage, with allowing a constitutional right to divorce, the LGBTQ agenda, same sex marriage. It was way too much, but much of the issue also had to do with the belief of the Chilean people that adopting this leftist constitution would further wreck Chile’s already very troubled economy. They basically did not want to put in place a leftist constitution that would lead to a government breakdown, the bankruptcy of the country, and the collapse of the economy. A report on the vote published in The Washington Post put it this way, “The proposed changes had looked to remake one of the most conservative countries in Latin America into one of the world’s most left-leaning societies, but Chileans decided that went too far.”

I think the most interesting analysis of the situation in Chile came from Binyamin Appelbaum writing a very interesting analysis for The New York Times, and he points out that there are basically two different forms of constitutional philosophy. There is minimalism and there is maximalism. Now, minimalism is what represents the English-speaking tradition, both the unwritten British constitution and the very much written American constitution. The U.S. Constitution is minimalist, and that states that there are certain limited rights that the constitution recognizes, but there are none that the constitution promises that the government cannot deliver on. The maximalist constitutions are more like much of the European tradition, and even as we shall see, kind of the temptation of groups like the United Nations, but you also have even leftist governments that never intend to follow the constitution, who will maximalize all the promises and all the list of enumerated rights that are supposedly guaranteed in the constitution.

The American constitution recognizes a few rights, but recognizes them as absolutely fundamental. You have the maximalist constitution that recognize any number of rights, perhaps even dozens of rights, but frankly, the government doesn’t have the authority or the power to guarantee those rights at all. Sometimes the government never has the intention of honoring those enumerated rights. As Appelbaum points out, the North Korean constitution guarantees freedom of speech. If you go to North Korea, good luck with that.

But finally, on this constitutional issue, let’s just keep in mind the biblical understanding that a constitution is very much like a covenant. It is an operating agreement. It is the formalization of a relationship, and it either works or it doesn’t, or it works a little bit and doesn’t work somewhat. The fact is that the American constitution is held strong for more than 200 years, longer than any other written constitution in world history. But there are other nations that have just printed constitutions, and basically, before the ink is dry, the constitution is already moot or violated.

Somewhere in between, there are other nations groping their way, and let’s just point out, it is very good when a nation responsibly, through an orderly process, seeks to make certain it has the constitution it needs, but changing a constitution means in one sense, changing the nation. If you’re looking back at a heritage of a military dictatorship, maybe there’s reason for that, but then again, as the voters in Chile said, maybe not when it came to the proposal that actually confronted them.

Another way we might look at constitutions is that a constitution is a formal representation and articulation of worldview. You take the worldview of the people represented in their hopes and plans for a government, their expectations of the state, you put it together in a formal agreement, you ratify it, and operate by it. That basically is another form of covenant, and at every point, it represents every dimension of worldview put into words, sometimes written, sometimes not, sometimes honored, sometimes not.

Part III

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President Biden Plays with Political Dynamite: Remarks that Includes Republicans Who are Pro-Life and Who Know What Marriage as a Threat to Democracy

But finally, as we’re thinking about matters constitutional, we have to come back to the United States where on Thursday night of last week, the nation’s head of state and head of government, President Joe Biden stood in the venerable location of Philadelphia’s Independence Hall. That is after all where independence was declared, where the Declaration of Independence was signed, and furthermore, it hearkens back to our constitutional tradition as well.

President Biden got up and gave a speech at which he warned about threats to democracy. Now, on the one hand, you would expect the president of the United States faced with a threat to democracy to let the American people know it, but as it turns out, the speech that was given by President Biden wasn’t so much an appeal to the entire nation about threats to democracy.

Make no mistakes. Some of the things he identified are threats to democracy. The bigger problem is that President Joe Biden, as at least others have represented, didn’t speak as a democrat with a little D to citizens of the nation, but as a Democrat with a capital D, in a highly partisan speech that went far beyond threats to democracy that he claimed were inflicted by others, particularly Republicans of the what he called MAGA Republican strike, which at points he said, endangered the entire constitutional order. In Rockville, Maryland earlier, the President had actually called these Republicans semi-fascist.

Now, that’s just playing with political fire. That’s playing with explosives. It’s like taking a political hand grenade and pulling the pin out. You’re using the fascism word and you’re applying it to fellow Americans. Yet, there are some who would say, “Well, he was applying it only to say, certain Republicans acting in a certain way at the behest to former President Donald Trump, speaking just of say, the January 6th insurrection, and et cetera.” But that’s just fundamentally untrue in the context of how the President has been speaking. He’s speaking here with profound disrespect toward tens of millions of Americans who voted not for him, but for someone else, and in particular for former President Donald Trump.

Now, this presents Americans with a double dilemma because in one sense, President Trump has said to many voters, “If I didn’t win, it’s because there was not a legitimate count,” but now you have President Biden, basically setting it up for the fact that if Democrats don’t win, it’s because the nation is trending in a semi-fascist direction. Either way you look at it, that is constitutionally irresponsible, and that is just the most incredible understatement of which I’m capable at the moment.

Just in case you wonder to whom the President was speaking and of whom he was speaking this dismissal of these so-called certain Republicans, listen to this section from the transcript of the address he gave in Philadelphia on Thursday night, “MAGA forces are determined to take this country backwards to an America where there is no right to choose, no right to privacy, no right to contraception, no right to marry who you love.” Now, there you’ll notice, he went far beyond any reference to insurrection. He went far beyond any reference to those he would call election deniers. He goes right at pro-life Americans and Americans who actually know what marriage is. This was a blatantly political speech. It was mischaracterized by the White House, and it was fundamentally wrong to use the presidency in this way and to have United States Marines in uniform as a part of the decoration.

Now, by the way, the event itself was absolutely bizarre. They took Independence Hall, one of the most venerable sites of America’s political history, and with weird lighting, they made it look more like some kind of set for a science fiction movie. But there’s one more aspect that many people in Washington have simply used to call out the President, and that is, to quote Ross Douthat of The New York Times, “He doesn’t appear to believe what he said. If he really believes that these Republicans he describes are so dangerous, then why is his own party putting millions of dollars behind the most radical MAGA candidates by their own definition on the Republican side and primaries, by the definition of Democrats that is? Why would Democrats operate by the blatant hypocrisy of trying to, in the primary system, go for Republican candidates who are most identified with what the president of the United States calls a toxin in the American political system?” Well, it’s because they believe those candidates would be easier to beat in statewide elections.

Now, even many Democrats are so troubled by this. It’s being described by some as one of the least democratic, little D, developments in all of recent American history. Using the very vocabulary labels and identifiers that the Democrats have been using and hurling at Republicans, they have to answer for the fact that they and partisan allies… But for that matter, even the official party apparatus has been putting millions of dollars behind radical Republican candidates by the Democrats’ description in order to try to basically manipulate the electoral politics for the midterm elections, with many statewide votes coming just in a matter of weeks in November.

Sometimes the nation’s editorial writers get it just right. The Wall Street Journal editorial board released an editorial with the headline, “Joe Biden holds a Trump rally.” Henry Olsen of The Washington Post ran a column that had the headline, “Biden’s MAGA speech was designed to protect Democrats, capital D, not democracy, little D.” He’s right. The editorial board of The Washington Post, one of the most liberal newspapers in the country, finally, it had too much with Joe Biden. They offered a headline, “Democracy is in danger. Biden should invoke patriotism, not partisanship, to make that point.”

Or we can put it in another way. It doesn’t make much sense. There isn’t much moral credibility in yelling fire when you’re caught pouring fuel on that fire.