WeeklyWorker

30.09.2021

Decline and decay

Mike Macnair shows that the post-1945 and post-1976 global ascendancy of US-style constitutionalism is at the core of the current liberal impasse

I began this series with two weeks’ worth of negative critique - British ‘ancient constitutionalism’ and of different identifications of the US constitution as pre-modern. The third article looked at the feudal regime as one of affective personal lordship, its negative effects for the circuit of capital, and the emergence of ‘rule of law’ ideas in the form of Romanism and of ‘ancient constitutionalism’ down to the victories of the English revolution in 1688 and after. The fourth addressed the consequences of this creation of state forms adequate to capitalist rule: ‘Enlightenment’ ideas as an ideology of capitalist modernisation and their necessary ‘counter-Enlightenment’ counterpart; and the American revolution as a political revolution growing out of this context, and the 1789 constitution as a modernised form of the English constitution, which was also more perfectly secured against the lower orders than the English constitution itself.

Models

Nonetheless, the US constitution did not become the ‘model modern constitution’ until much later. It had a degree of influence,1 but the ‘typical’ model of the 19th century was that of a constitutional monarchy - with legal limits on the executive, but without judicial review of legislation. The monarchs characteristically had very substantial personal powers, especially in relation to war and foreign policy. Though the British monarchy has evolved towards being a ‘reserve power’ or ‘above party’, this was certainly not true of pre-1837 kings and only incompletely true under Queen Victoria and after.2 (However, the ‘parliamentary model’ with a ceremonial, rather than executive, monarch or presidency, was widely exported by the British in the 20th century in the process of decolonisation.) Federalism was by no means normal, the general idea of modernisation involving movement towards unitary states.3

The French revolution led to the replacement of the United Provinces of the Netherlands with a unitary republic in 1795, subsequently made into a subordinate kingdom under Napoleon I. The Congress of Vienna in 1815 handed this kingdom - and Belgium - to the old house of Orange as a constitutional monarchy. Genoa - initially turned into the ‘Ligurian republic’ in 1797 - was annexed by France in 1805 and handed to the kingdom of Sardinia (actually based in north-western Italy) in 1815. Venice was conquered by France in 1796, by Austria in 1798, by France again in 1805, and handed over to Austria in 1815. The most prominent ancient-constitution republics were thus obliterated. The Napoleonic regime (consulate from 1799, empire from 1804), although authoritarian and created by a coup, was, in fact, a form of constitutional monarchy; and even the restored Bourbon monarchy in France was ‘constitutional’. On the other hand, 19th century liberals mainly sought constitutions and liberties - notably the reduction of clerical power, which remained significant - not republics or democracy. Republicans and democrats were extremist radicals.4

The constitutional regimes characteristically, like the British, employed property qualifications for the right to vote, though this was inevitably in tension with the widespread use of indirect taxation. Nowhere more so than in the USA, where “No taxation without representation” had been so prominent in the ideology of the revolution. But Napoleon’s employment of plebiscites (referenda) and other electoral forms displayed what could be done with managed election techniques with a broad franchise.5 In the USA in the 1820s-30s, the ‘Jacksonian Democrats’ applied the Napoleonic lesson with effect: news management, with a candidate made charismatic by it, and extending the franchise, could advance sectional interests (in this case, those of plantation capitalists).6 You only have to fool enough of the people enough of the time ...

The French revolution was at first (after the Terror, and Napoleon’s coup) a symbol to constitutionalist politicians of the tendency of democracy to collapse into tyranny, as argued by Plato, Aristotle and Polybius in classical antiquity; and it continues to be taught by British Tories as an example of the evils of revolution. 1848-51 at first seemed merely a more rapid repetition. However, the effect of the regime of Louis Bonaparte did not lead to immediate European war. It did see substantial modernisation; and the Crimean War (1854-56) saw the beginnings of British ‘declinism’ due to perceptions of greater French military efficiency; reinforced by French victory in the 1859 Franco-Austrian war.

The French Bonapartist constitution (and its ‘republican’ descendant of 1871, characterised by Engels in 1891 as “the empire of 1799 without the emperor”7) could now serve as an alternative model of modernity, with much more radical bureaucratic centralisation of the state; with codification of both civil and criminal laws; with ‘career open to talents’ (in modern terms, meritocracy) enlarged educational institutions and more extensive ‘credentialism’; and with the principe des nationalités (principle that states should be nation-states, in contrast to the British and Austro-Hungarian supra-national states and the then (1850s) Italian, German (and US) sub-national states. The judiciary was to be unequivocally subordinate to the legislator.

The Franco-Austrian war enabled further progress on Italian unification, broadly on a French model; and, though the German Second Empire from 1871 was federal, the principles on which it was founded were similarly the unification of the Germans and bureaucratic centralisation and credentialism. The general model (as opposed to the precise French features) had considerable impact outside Europe - for example (as Linda Colley pointed out), German influence on Japan’s Meiji constitution. The principe des nationalités can be credited with the Italian and German unifications and with anti-colonial movements - and damned for its role at the root of central European ‘blood and soil’ nationalism, irredentism and 20th century ethnic cleansing, down to and including the holocaust.

The French and German model is very commonly identified as more ‘modern’ than the Anglo-American one (in particular the American one). It is not clear that this is true. What makes it look more modern is that the bureaucratic-centralist state seems more factory-like, with a complex, elaborated hierarchy of authority and specialisation of function (Adam Smith’s ‘division of labour’); and the extended state educational institutions appear as factories producing skilled technicians and research outputs. But this is, in fact, as one-sided as its liberal opposite.

The core point is one I made in the last article: full rule-of-law constitutionalism produces subordination to the dominant capitals, in their money form in the circuit of capital. Hence, it yields prima facie subordination to the leading global capitals: in the first half of the 19th century generally, to the British. To escape this domination, US ‘northern’ capital, in a capitalist society, could mobilise petty bourgeois and proletarian anti-slavery sentiment to coerce the plantocracy - in practice overthrowing significant parts of the constitution.8 French and German capital, in countries not yet fully capitalist, needed to mobilise nationalism to escape from the mechanisms of British control: hence the principe des nationalités. But hence, also, alliance with the most ‘national’ elements of the middle classes: surviving or preserved elements of the late-feudal state bureaucratic caste, a quality expressed in the patron-client relationships in the bureaucracies and the state universities (which continue to the present day); and some artificial preservation of the peasantry (more in France than in Germany).

In the short wars of the 1850s-60s this regime could appear as more efficient than the apparent chaos both of the British in the Crimean war and some other stumbling British colonial wars, and of the Union side in the first phases of the American Civil War. But in the latter phases of the Civil War and of World War I, it became clear that, although the British and Union/US regimes were slow to get started and stumbled in the first phase of military operations, once they were fully committed, they could mobilise massively greater reserves of popular support and productive capacity than their opponents.

Democracy

Meanwhile, along with the rise of capital goes - necessarily - an expansion of the proletariat. And along with successive capitalist mobilisations of the lower orders generally against the old feudal order went a stop-start, hesitantly increasing, political capacity of the working class as such. In this context “the democracy” meant the lower orders more generally, and aspirations to democracy meant aspirations to rule by the lower orders. In this movement there may well have been some intellectual influence of Jeffersonian ‘democratic republicanism’ and Jacksonian ‘democracy’ on British and continental European “democracy”.9 This movement is the context of the early Marx and Engels and of the Communist manifesto - and the ideas did not cease to form part of their views throughout their lives.10 Thus Engels’ 1891 critique of one of the draft versions of the Erfurt programme:

In my view, the proletariat can only use the form of the one and indivisible republic. In the gigantic territory of the United States, the federal republic is still, on the whole, a necessity, although in the eastern states it is already becoming a hindrance. It would be a step forward in Britain, where the two islands are peopled by four nations and in spite of a single parliament three different systems of legislation already exist side by side. In little Switzerland, it has long been a hindrance, tolerable only because Switzerland is content to be a purely passive member of the European state system. For Germany, federalisation on the Swiss model would be an enormous step backward.

Two points distinguish a union state from a completely unified state: first, that each member-state, each canton, has its own civil and criminal legislative and judicial system, and, second, that alongside a popular chamber there is also a federal chamber, in which each canton, whether large or small, votes as such. The first we have luckily overcome and we shall not be so childish as to reintroduce it; the second we have in the Bundesrat and we could do very well without it, since our ‘federal state’ generally constitutes a transition to a unified state. The revolution of 1866 and 1870 must not be reversed from above, but supplemented and improved by a movement from below.

So, then, a unified republic. But not in the sense of the present French Republic, which is nothing but the empire established in 1799 without the emperor. From 1792 to 1799 each French department, each commune, enjoyed complete self-government on the American model, and this is what we too must have. How self-government is to be organised and how we can manage without a bureaucracy has been shown to us by America and the First French Republic, and is being shown even today by Australia, Canada and the other English colonies. And a provincial and communal self-government of this type is far freer than, for instance, Swiss federalism, under which, it is true, the canton is very independent in relation to the federation, but is also independent in relation to the district and the commune. The cantonal governments appoint the district governors and prefects, which is unknown in English-speaking countries and which we want to abolish here as resolutely in the future as the Prussian Landräte and Regierungsräte.11

The result, from the mid-19th until the later 20th century, was a rising threat to capitalist rule from below, from the growth of organised workers’ movements committed to political democracy. In the face of this development, extensions of the suffrage were in some cases extorted (as in Britain in 1832 and 1867), in others granted for ‘Bonapartist’ manoeuvres against the liberals (Louis Bonaparte; Bismarck). In Britain, as I have indicated in an earlier article, extensions of the suffrage on the one hand were accompanied by extensions of both judicial and executive-bureaucratic control. In that sense there is a development here towards the American model (stronger judicial control) and towards the Franco-German model (stronger central bureaucracy and credentialism).

Out of the workers’ movement and a dynamic towards German-style modernisation (in the end failed) came the Russian Revolution; and the combination of its survival and the failure of the German revolution of 1918-19 to go beyond a half-break, with the Second Reich produced in Russia and the Comintern a regression from the democratic constitutional alternative of the mid-later 19th century workers’ movement. The first stage was that the fact that the German revolution did not immediately follow October, and the decision of the Hindenburg-Ludendorff regime to prioritise defeating the Bolsheviks over the chance of defeating the Entente powers, led to the Brest-Litovsk treaty, which destroyed majority support for the Soviet government. It was now necessary for Bolsheviks to conclude that ‘working class rule’ meant the rule of a minority workers’ party. The second stage was the crisis of forms of localist military insubordination during the civil war (‘Tsaritsyn affair’ and related issues) which led the Bolsheviks in spring 1919 to impose military hierarchy on their own party.

At the same time, Karl Kautsky - who had moved in 1916-17 to a pro-Entente position on the war - denounced the October seizure of power, and in particular the January 1918 dissolution of the Constituent Assembly by the Bolshevik-Left Socialist Revolutionary coalition (which did at the time have majority support), as anti-democratic. What Kautsky meant by ‘democracy’ is indicated by his January 1919 Guidelines for a socialist action programme, which would have replaced the standing army by a militia, and created self-government in the localities - but left the judiciary, the civil bureaucracy and the professional police untouched.12 But Bolshevik leaders responded by polemicising against ‘bourgeois democracy’ and ‘democracy in general’ - in effect accepting Kautsky’s 1918 equation of ‘democracy’ with capitalist ‘mixed constitutions’.

The result of these shifts is a theorisation in the Theses of the 1920 Second Congress of Comintern on the role of the Communist Party.13 For Marx and Engels, the party was necessary, because the working class needs - in order to constitute itself as a class for itself, capable of leading the whole society - to take political action: that is, to fight for its demands to take the form of general laws, fight for constitutional change, and hence to contest elections, and so on. The Second Congress Theses, in contrast, collapse the difference between strike struggles, struggles for general laws, insurrections, and so on, as all merely forms of class struggle at the same level. Instead of the Marx-Engels concept, the Second Congress Theses hold that the party is necessary in these undifferentiated struggles because of the uneven development of proletarian class-consciousness - some more advanced than others. The class is then represented both in the struggle for power (and until the dissolution of classes) by its advanced part: that is, the party.

It is merely an inherent logic of this concept of the role of the party that consciousness within the party is also uneven, so that the party itself has to be represented by its most advanced part, the central committee; which, in turn, has to be represented by its most advanced part, the Politburo; which, at the end of the day, falls to be represented by its most advanced part, the general secretary (or some other lider máximo). These consequences developed in practice over the 1920s. The end result - Stalinism and its various puppets and imitators - is, in substance, a more extreme form of the Bonapartist/Second Reich constitutional conception: centralised bureaucracy, subordinate judiciary, artificial preservation of the peasantry, principe des nationalités.

Test of war

The ‘modernity’ - meaning the geopolitical effectiveness - of these different constitutional models was put to the test of war and ‘cold war’ through the 20th century. This was a three-stage process.

The first stage was World War I. As I have already indicated, the British and Americans proved more successful at war mobilisation than the Germans and Austrians - who were in any case in an unenviable position of encirclement and blockade. They also proved more successful at war mobilisation than their allies, the French and Italians; this aspect of the war was rendered less visible by its revolutionary outcomes. The result of the war was the overthrow of the Hohenzollern, Habsburg, Romanov and Ottoman monarchies, and the creation of a series of new constitutional states; but these were still not yet shaped by American constitutional conceptions. For example, as I have already indicated, the Weimar republic remained largely ‘the Kaiser-Reich without the emperor’, retaining the main constitutional features of the Bonapartist model.

The trend, in fact, of the 1920s-30s was away from liberalism more generally; with the invention of ‘fascism’ in Italy in 1919 and its gradual success after the 1919-20 biennio rosso strike wave, followed by various other forms of far-right movement or regime in central Europe (Horthy in Hungary, Tsankov in Bulgaria, Pilsudski in Poland, etc) and - decisively - the overthrow of the Weimar republic by the Nazis in 1933. 1940 saw the political collapse of the French, Danish and Norwegian regimes in face of German military successes, with the creation of collaborator regimes. The radicalised ‘fascist’ version of the Bonapartist constitutional model thus extended itself to most of Europe, while imitator regimes would also be found in Latin America. But the results of Hitler’s attempt to conquer the USSR (June 1941) together with the Japanese attack on Pearl Harbor, bringing the US into the war (December 1941), enabled a return to the long-standing pattern in which Russia provided cannon-fodder in exchange for finance and tech transfers; and in doing so showed, again, that the productive and mobilising superiority of the British and American constitutional models in a sustained great-power war militarily outweighed the apparent ‘modernity’ of the Bonapartist model in its French ‘Third Republic’, and in its fascist-form, German and Italian styles.14

The result, however, was also to strengthen the Soviet regime: geographically, because the ‘western’ Allies’ reliance on Soviet cannon-fodder to defeat the German army produced by the end of the war Soviet tanks on the Elbe; technically and economically, by the tech transfers involved in the military matériel transferred to the USSR by Britain and (more extensively) the US, or captured from the Germans; and ideologically, because the prestige of victory over fascism considerably increased the weight of the USSR in the international workers’ movement.

US policy was, in consequence, driven to the policy of ‘containment’ originally advocated by George F Kennan in 1946-47. ‘Containment’ entailed massive concessions by the USA to the capitalist classes and state castes of countries now identified as ‘western’, chiefly in the form of permitting protection and industrial subsidies at the expense of US businesses. This aspect of the policy involved - as I pointed out in the first article in this series in relation to Samuel P Huntington’s theory - a US policy of alliance with ‘modernising’ dictators in Latin America and elsewhere; but also substantial concessions to the existing political elites in Europe.

There were also concessions to the working classes of the front-line states (in Europe and Japan), in the form of legalisation of trade unions and strikes, ‘welfarism’ and so on. The constitutions rewritten after the war were variable; the French Fourth Republic, for example, was close to that of the Third Republic in form, though adding procedural rules intended to reduce the ability of bare majorities to act. De Gaulle’s 1958 coup, in spite of his rhetoric, significantly Americanised the new constitution, creating both an executive presidency and judicial review of legislation. West Germany’s Basic Law in 1949 was partially Americanised by the introduction of judicial review of legislation; the counter-majoritarian Bundesrat second chamber, however, was an inheritance from the Kaiser-Reich via Weimar, and the Basic Law reduced the powers of the president. The US-imposed 1947 constitution of Japan similarly added judicial review, and contained such tight requirements for amendments that none have happened.

There was further Americanisation in Europe through supranational institutions. The European Convention on Human Rights is merely a declaration of rights (large and vague in character, with equally vague caveats) and an indirect judicial review institution. The European Communities, now European Union, similarly incorporated judicial review at the core of the institutions.15 In both cases, the character of the instruments as treaties means that amendment requires unanimous agreement of the governments which are party to them.

‘Containment’ avoided both open war with the USSR, except through proxies at the margins (Greece, Korea, Vietnam, etc) and the real risk of revolution in core European countries. In the long term, it created the conditions for the illusion that capitalism had been transcended or permanently moved into a new ‘organised’ or ‘late’ phase, in which the concessions given would not be withdrawn. This, in turn, created the conditions in which the concessions could in the 1980s-2000s be withdrawn, because a generation of trade unions, socialists, etc had lost the sense of the hard needs of anti-constitutional class politics.

But, in the meantime, both the workers’ movement in the ‘west’, and the semi-colonised peoples of the ‘south’ were unduly strengthened; and the relative decline of the industrial dominance of the US, through other counties catching up, was probably accelerated (relative to the analogous decline of Britain in the later 19th century). US defeat in Vietnam, happening alongside strike waves in the ‘west’ and other colonial-revolutionary movements in the ‘south’, produced a radical reorientation. The Carter administration pursued a policy of, on the one hand, exporting simple destruction (for a single example, by support for terrorist operations in Afghanistan); and, on the other hand, promoting ‘human rights’ as an ideology under which the concessions to other capitalist countries, and to the working class, would be rolled back. The results (mostly after Carter’s departure) included a further wave of the creation of constitutions with a degree of imitation of US forms - particularly in Latin America, but also (for example) in South Korea from 1987.

Even in countries with long-established parliamentary regimes, ‘fundamental rights’ and increased judicial review were promoted. Ran Hirschl’s 2007 book Towards juristocracy has explored this wave, and in particular the Israeli and Canadian cases. Britain was slightly late to the party, ‘incorporating’ the European Convention on Human Rights into domestic law in 1998.

For whatever reasons, ‘rollback’ succeeded where ‘containment’ might be said to have failed (though in a sense ‘containment’ created the illusions that made ‘rollback’ possible): in 1989-91 the eastern European regimes and then the USSR itself fell. The result was a new wave of constitution-making, again marked by influence from US constitutional ideas. Indeed, where these were not initially accepted, the USA has promoted ‘colour revolutions’ to create more ‘western’ (ie, US-style) constitutions. The USA had won the cold war of blockade and skirmishes with the USSR, and extended Americanisation worldwide naturally followed.

Gridlock

It is in this context, where the USA and its constitutional model of ‘checks and balances’, ‘separation of powers’ and extended counter-majoritarian devices have triumphed, that it now appears on the verge of breakdown. Nor is the problem specific to the US: similar phenomena of constitutional crisis and inability to reach decisions affect the European Union (built on the same hard-to-amend, counter-majoritarian and judicial review model); and any number of other modern liberal constitutions. Indeed, the same is true of the UK, which actually lacks most of the US-style institutions (the judiciary being rather deferential to Conservative governments in applying the Human Rights Act): quite small problems, like how to fund the social care of the aged, or building faster railways (or running the existing ones) remain unsolved, thanks to political gridlock in spite of a large Tory majority.

It is, I think actually the fact of capitalist triumph over the USSR which creates the gridlock problem. Politics works by deal-making and concessions. The belief that no such concessions should be made will naturally lead to gridlock - and then to desperate attempts to escape from gridlock by looking for a ‘strongman’ to override the paralysis of legislatures.

Which brings us back to where we began ...

  1. en.wikipedia.org/wiki/Worldwide_influence_of_the_Constitution_of_the_United_States is fairly clearly overstated, but does draw attention to variability.↩︎

  2. On Victoria, see, for example, WE Mosse, ‘The crown and foreign policy. Queen Victoria and the Austro-Prussian conflict, March-May 1866’ Cambridge Historical Journal Vol 10 (1951), pp205-23. There is an outline discussion of Edward VII (king 1901-10) and George VI (1936-52) in a book review: KD Reynolds. ‘A prince, too, can do his bit’ London Review of Books April 27 2000.↩︎

  3. There is some useful discussion on a broad scale in V Mastny, ‘The historical experience of federalism in east central Europe’ East European Politics and Societies Vol 14 (1999), pp64-96. More narrowly focussed on Italy and Germany is D Ziblatt, ‘Rethinking the origins of federalism: puzzle, theory, and evidence from 19th century Europe’ World Politics Vol 57 (2004), pp70-98.↩︎

  4. See the general discussion in M Mulholland Bourgeois liberty and the politics of fear Oxford 2012.↩︎

  5. M Crook and J Dunne, ‘The first European elections? Voting and imperial state-building under Napoleon, 1802-1813’ Historical Journal Vol 57 (2014), pp661-97.↩︎

  6. On the techniques, see MR Cheathem The coming of democracy: presidential campaigning in the age of Jackson Baltimore 2018; on the sectional character, there is, for instance, D Feller, ‘Andrew Jackson: the American franchise’: millercenter.org/president/jackson/the-american-franchise; see also WS Belko, ‘“A tax on the many, to enrich a few”: Jacksonian democracy vs the protective tariff’ Journal of the History of Economic Thought Vol 37 (2015), pp277-89.↩︎

  7. ‘Critique of the Social Democratic Program of 1891’ MECW Vol 27, p217ff: “... the present French Republic, which is nothing but the empire established in 1799 without the emperor ...”↩︎

  8. DA Farber Lincoln’s constitution (Chicago 2004) is sympathetic to Lincoln’s conduct, but cannot really avoid the substantial change in the US constitutional order that was involved.↩︎

  9. A relatively recent discussion of American influence on British radicalism generally is carried in MJ Turner Liberty and liberticide: the role of America in nineteenth-century British radicalism Washington 2014 (see in particular the introduction and chapter 1).↩︎

  10. On ‘democrats’, see AH Nimtz Marx and Engels: their contribution to the democratic breakthrough New York 2000; on the radical republican tradition, B Leipold, K Nabulsi and S White (eds) Radical Republicanism: recovering the tradition's popular heritage Oxford 2020 (introduction and chapters 6-10); for a theoretical approach to early Marx, see A Chrysis ‘True democracy’ as a prelude to communism: the Marx of democracy London 2018.↩︎

  11. See note 7 above. For the context: B Lewis Karl Kautsky on democracy and republicanism Leiden 2019 (appendix). The Landrat was a centrally appointed local official, the Regierungsrat a more senior one.↩︎

  12. www.marxists.org/archive/kautsky/1919/01/guidelines.html.↩︎

  13. www.marxists.org/history/international/comintern/2nd-congress/ch03a.htm.↩︎

  14. On the pattern, see B Kagarlitsky Empire of the periphery London 2007, chapters 4-9. On the role of Allied aid in the Soviet war effort in 1941-45, I gave relevant references in ‘Stalinist illusions exposed’ Weekly Worker September 18 2008: weeklyworker.co.uk/worker/737/stalinist-illusions-exposed.↩︎

  15. There are narratives in AWB Simpson Human rights and the end of empire: Britain and the genesis of the European Convention Oxford 2001; AS Sweet The judicial construction of Europe Oxford 2004.↩︎