Modern ancient constitutions
We are agreed: the struggle for political democracy is vital. But more is needed. Mike Macnair answers his common-ground critics
Dan Lazare offered on October 7 a critique of my five-part series on constitutions and their alleged antiquity (‘Tudor, Whig or what?’). Gil Schaeffer has also criticised the fourth part of the series (‘Enlightened constitutions’, September 23) in his letter of September 30. This article is a response to both these criticisms: the first part more addressed to comrade Schaeffer’s argument and the second comrade Lazare’s.
I should begin by emphasising what is, I think, common ground between us. This is that a central task of the left - in the UK and in the USA, and indeed, elsewhere - is the struggle for political democracy. This struggle means - as its other side - the promotion of the idea of the overthrow of the ‘mixed constitutions’ that are falsely labelled ‘democratic’. In the UK, against the monarchy, the House of Lords and the rest of the anti-democratic elements of the ‘ancient constitution’; in the USA, against the sanctity of the US constitution and its anti-democratic structures (presidency, Senate, judicial review, and so on).
It is a common, but utterly false, idea of both the centre-left and far left that by deprioritising issues of political democracy and the constitution in favour of ‘bread and butter issues’ it is possible to win elections and so bring in reforms (centre-left) or to mobilise the masses, who will thereby be drawn into confrontation with the state and as a result see the need to overthrow it (far left).
As far as the centre-left version of this perspective is concerned, the ‘Brownite’ Blairism in 1997-2010 showed the marginality of the gains made by the ‘reforms’ by comparison with the deepening entrenchment of capitalist power and economic inequality in the period, and the ease with which an incoming centre-right coalition could reverse these small gains. Meanwhile, the Corbynite movement suffered catastrophic defeat through pursuing ‘bread and butter issues’ in face of a media campaign of constitutional delegitimisation, using - primarily - the Brexit referendum and secondarily both the constitutional sanctity of MPs’ jobs and the sanctification of the Atlantic Alliance as the alternative to ‘anti-Semitism’. ‘Bread and butter’ meant diplomatic silence in relation to these issues, with Labour eventually pinned into the position of shifty opponents of the ‘people’s will’ to Brexit. In the US, the Bernie Sanders movement ended by backing Joe Biden as the lesser evil - but Biden has proved, unsurprisingly, only able to ‘talk the talk’ and no more, given the combination of capitalist control of the Democratic Party and the rural classes’ control of the Senate. Equivalent failures can be seen in many other countries.
As for the far-left version, it is now almost trivially insignificant. Why? The immediate answer is that the conception of mobilising the masses into street and strike action by the clever tactical choices of a central issue or line of march requires organisations structured to follow the tactical-political nose of a lider maximo (a Lenin re-imagined after his death - but in the far left a Cannon, Mandel, Healy, Lambert, Cliff, Grant, Moreno, Robertson, Taaffe, Avakian ...). This necessity flows from the idea of street and strike mobilisation around ‘bread and butter’ issues, imagined to be opposed to ‘electoralism’. It does so because the policy of such mobilisation - ‘moderate demands, but militant action’ - requires the forces of the far-left group to turn rapidly round a central tactic, following issues that from time to time happen to be popular. The organisational form of the bureaucratic-centralist group is theorised on the basis of the ideas of the early Comintern, but in practice caricatures the weaknesses of this model.
The result is the notorious fragmentation of the far left, imaged through Monty Python’s Life of Brian. Since the group is defined by tactic, any tactical disagreement necessarily drives towards a split, as does any threat to the lider maximo or the closed central leadership. It is very hard for anyone any longer to take this approach seriously, beyond limited forces recruited from university freshers fairs and processed through robotisation as ‘activists’ into eventual disillusionment.
In contrast, a politics that is openly anti-constitutional may not succeed, but has the possibility of building an effective movement of political opposition - which, in turn, can politically support the actual strike struggles, campaigns and so on thrown up by the regular course of events, and promote the construction of trade unions, cooperatives, mutuals, workers’ education initiatives, etc, independent of the state and of the state-controlled and capitalist-controlled media. It can do so both by advancing working class demands in the form of general laws and by delegitimising the claims of the state and the corrupt media to control and set limits to the mass movement.
For this project, the overthrow of the constitutional order from the left need not be (and probably is not) on the immediate agenda. I say ‘probably is not’, because to place overthrow on the immediate agenda, large masses need to think that a better left alternative is possible - as in the era of the Second International and to some extent that of Comintern. This has ceased to be the case as a result of the failure and ultimate collapse of the Soviet bloc. At present it is more likely that liberal constitutions will be overthrown from the right - as has already happened in several countries. But a socialist anti-constitutional and radical-democratic politics has the chance of undermining the mechanisms that produce the mass belief that ‘There is no alternative’, and hence of creating a future in which the overthrow of the regime will be on the immediate agenda.
This, as I said, I take to be broadly common ground with comrades Lazare and Schaeffer. There may, however, be a difference of political substance. This is that, in my view, the question of political democracy is objectively posed, primarily by the needs of the working class as a class. This is because, being separated from the means of production, this class needs collective organisation and action to defend its interests, and can only do so by self-mobilisation, which requires conscious ‘unity in diversity’ and radical democracy within this movement; so that the bureaucratic-managerialist regime within the workers’ movement tends to hollow out the working class’s organisations and undermine their effectiveness. It follows that going beyond self-organisation to working class rule needs radical democracy all the more.
Secondly, democracy is objectively posed because society as a whole needs to replace the coordination of our activities - through the combination of money and markets, on the one hand, and entrepreneurial or managerial decision-making, on the other - with conscious planning. We need this because in late capitalism the forces of production turn into forces of destruction, whether in the form of environmental degradation or spreading war and state failure. And the Soviet experience shows us that managerialist planning without democracy produces ‘Gigo’ decision-making and failures as severe as those of capitalism.
The question of democracy is objectively posed in the third place because the existing constitutions give power to the capitalist class as such - through the ‘rule of law’ and the ‘free market in legal services’, through ‘freedom of the press’ (taken to mean media oligopolies based on advertising-funding and copyright) and, based on this, the dependence of political parties and individual politicians on capitalist funding, and through the design of electoral systems to force a choice between bribe-takers.
However, it is entirely possible to oppose the corrupt character of liberal constitutionalism and the fact that it amounts to the dictatorship of the bourgeoisie, in the sense that it makes the capitalist class above the law1 on the basis of ideas other than democracy. So, for example, in the various forms of ‘man on horseback’ appealed to by right-populist nationalism currently. The primacy of democracy as an alternative to liberalism, I would argue, is objectively posed by the needs of the working class and the struggle for socialism.
As against this view, comrade Schaeffer is explicit (not in his letter, but elsewhere in his writing2) in supporting the view that the Marxist class perspective is to be rejected in favour of a democracy-first perspective; and in his letter turns his fire mainly against my suggestion that the possibility of a future beyond capitalism is an important part of motivating a mass anti-constitutional movement (like the best elements of the Second and Third Internationals).
Comrade Lazare certainly does not have the same view; but it is possible to read his argument also as a democracy-first argument, perhaps in a ‘permanent revolution’ form, in which the need to overthrow the US constitution appears as an ‘uncompleted task of the bourgeois revolution’ (or, perhaps, I suggest with tongue firmly in cheek, Paul Lensch’s argument in 1915-18 that the Entente powers represented pre-industrial capitalism, and the Central Powers a more modern form of ‘organised’ capitalism ...3).
I make these points tentatively, because the political logic of the differing theoretical/historical views is not clear. There are two political risks - no more than risks - involved. The first is to turn the issue of the constitution from one of strategic orientation, which enables a party to project a global alternative, into a tactical fetish (common in far-left groups), a ‘constitution campaign’ or whatever. This would lead back into the impasse of the inability of the far left to unite.
The second is to imagine that the issue of democracy and the constitution permits the reconstitution of ‘the democracy’, the seemingly strategic alliance of the proletariat, petty bourgeoisie and peasantry of the 19th century. But this alliance broke up: in England in the 1840s, in France and Germany in 1848-51, in the USA after the Civil War, in eastern Europe after World War I, and even in Soviet Russia (the ‘scissors crises’ of the 1920s and forced collectivisation as a response to the efforts of the peasants to subordinate the cities). Attempts to reconstitute a politics of the strategic unity of proletariat and petty proprietors have been staples of Eurocommunism - and this can now equally be seen to have failed, merely leading to tailing the liberals and the rise of mass support for nationalist populism.
The background to these failures is that the petty-proprietor classes (urban and rural) have interests opposed to the consistent pursuit of radical democracy. The problem is that small-business operators, including farmers, have interests in the subordination of their small numbers of employees that are more powerful than those of their big-business rivals, who can afford to make more substantial concessions to labour. Moreover, they commonly exploit the labour of their wives (the gendered expression is intentional) and children, with a view to accumulation on a small scale. The professional/managerial middle classes may have a direct (managerial) interest in holding workers in subordination; but they also have an interest, as Paul Demarty has helpfully argued, in effecting ‘social’ closures against competition in the interests of their small-scale intellectual property.4
I add that capitalism (as opposed to feudalism) drives the petty proprietors to a greater or lesser extent out of active self-government, since the freedom of ‘rational economic actor’ sociopathy forces everyone who is not prepared to be a mere worker to pursue the same policy - and hence to self-exploit through specialisation and long hours, creating demand for specialist ‘professional politicians’. The result of all these dynamics is that, as soon as a worker-petty proprietor coalition achieves the object of overthrowing the prior class regime, the conflicts of interest between the workers and the petty proprietors will drive the latter towards either falling in behind capital or setting up some sort of Bonaparte.
Hence, an anti-constitutional politics and the struggle for radical democracy is a necessary element of a class and socialist politics; it is not an alternative to it.
Ancient and modern
The starting point for my series was the observation that it seemed strange from this side of the Atlantic that the crisis of the US constitution should be blamed on its antiquity, when in England the antiquity of the constitution is celebrated.5 The series, then, set out to show the relative modernity of the US constitution.
The third and fourth articles addressed this in relation to the role of ‘ancient constitutional’ ideas in Venice, Genoa, the Netherlands and England, as a road to the rule-of-law regime that is the dictatorship of the bourgeoisie; and of the influence of Enlightenment ideology on the US constitution. The last article posed it in relation to the ‘Bonapartist model’ of the absolutist-bureaucratic, centralised state and the persistence of patron-client chains within this, the principe des nationalités, and the artificial preservation of peasant and artisan classes.
Capitalism, I argue (following Marx), is two-sided, involving both the freedom, equality and independence of the market and the personal hierarchy and domination of the factory. The Enlightenment ideology of liberal constitutionalism one-sidedly expresses the market side, but actually delivers the dictatorship of capital in its money form (and hence of the world-dominant capital over local capitals). The Bonapartist model escapes from subordination to the world-dominant capital, but at the price of one-sidedly expressing the factory side of capitalism, and of alliances with a preserved, late absolutist state bureaucracy, and with the petty proprietor classes, which act as a drag on the economy and on military capacity. The superior ‘modernity’ of the US form - meaning by this, its superior adaptation to the needs of capitalism as such - is shown by the military outcomes of the 20th century.
Comrade Lazare argues that the reconstruction of international law and international institutions post-1918 shows the US imposing “old-style federalism” on a world scale. I do not disagree, as such - but for the point that the British and US capitalist states were victorious in the wars of the 20th century, because of greater ability to mobilise and deploy forces, as compared to its Bonapartist rivals.6 This should lead us to suppose that this regime is better adapted to capitalism as such - and that its crisis is not about its antiquity relative to continental or Weberian ‘modernity’, but about the early decay of capitalism as such.
The main body of comrade Lazare’s response reasserts the non-modernity of the US constitution. He begins with the remark, “Do British politics revolve around fine points of the interpretation concerning the Magna Carta? Obviously not.” I regret to have to tell him that this is actually untrue. The Supreme Court of the UK (SCUK) in 2017 struck down regulations on tribunal fees made by the Conservative-Liberal Democrat coalition government of 2010-15, among other grounds for incompatibility with Magna Carta c29 (“To no one will we sell, to no one will we refuse or delay right or justice”). My first article in the series pointed to another example of politics governed by perceived ancient law: the defeat of the Blair government’s proposal to abolish the office of lord chancellor - a defeat based on allegations of the antiquity of the office, allegedly going back to Anglo-Saxon times. The political arguments and the litigation round Brexit provide another example of the role of the ‘ancient constitution’ in British politics. (George Garnett found himself provided by Brexit with a cornucopia of recent political references to the middle ages for the ‘Acknowledgements’ section of his new book.7)
The core of comrade Lazare’s case for the British constitution’s greater modernity than that of the US, however, is the issues of sovereignty and centralism. He tells us:
The UK today is one of the most centralised countries on earth, while its transatlantic cousin, with its 50 states and 90,000 local governments - all autonomous and all infinitely jealous of their ancient constitutional rights - is a case of neo-Tudor pluralism run amok.
Within Greater London today, the City of London - the financial district - continues autonomous, governed by its early-modern constitution, complete with a property franchise. This is obviously in the interests of the ‘City’ as the core of the financial service sector; but it is also because the interference with the City’s constitution by Charles II and James II (the latter was James VII in Scotland but James II in England and Ireland) and their governments, that in the 1680s went to form part of the grounds for the Glorious Revolution in 1688 which overthrew the Stuart dynasty. For the same reason, the constitutions of the universities of Oxford and Cambridge (which had their own members of parliament until 1950) remain governed by statute,8 while most universities are subject to royal prerogative powers exercised through the Privy Council - used in recent years, since Thatcher, to remodel governance to create ‘independent’ trustee boards more easily influenced by business; James VII/II’s interference with Magdalen College, Oxford, was part of the grounds of his deposition.
This constitutional background created not a rule of law as such, but a constitutional convention against national interference with local government, which lasted unequivocally into the mid-late 19th century9 (more on conventions below). Even into the mid-20th century, extensive localism remained. The famous 1948 case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation gave its name to a test for ‘unreasonableness’ as a ground for judicial review. But what it was actually about was the local authority using its licensing powers to prohibit people under 15 visiting the cinema on Sundays, and the test is in origin a rule of judicial deference to the local authority’s decision-making.
The super-centralism of modern England - which is real - is not a product of the 1640s, but of a series of steps beginning in the later 19th century as a response of the propertied classes to the extension of the franchise, and extended by stages through the ‘emergency powers’ of the two world wars, and then the Heath government’s ‘modernisation’ operations in 1970-74 and the Thatcher government’s war on ‘loony left local councils’, ‘ratecapping’ and so on, in 1983 and after.
Was the autonomy of local governments after 1689 ‘Tudor’? It may have been a Whig or ‘parliamentary’ illusion about Tudor administration, but the reality is that pre-1688 royal governments, Tudors included, were heavily interventionist in local government, with the Privy Council and other prerogative bodies capable of quite arbitrary decision-making in the interests of friends of the king or queen or of individual Privy Council members and to drive through central policies. 1688 reduced central control of local government.10
The core of comrade Lazare’s argument is that the English constitution is more modern than that of the US by virtue of the “modern concept of political sovereignty”. He argues that “the concept of sovereignty - the idea that all societies require a supreme authority, whose job is to judge without being judged in return - is essential to any understanding of the American predicament today”. He criticises me for linking the sovereignty-ideas of Jean Bodin and Thomas Hobbes to medieval and Roman conceptions, rather than seeing them as modernising innovations.
There is a valid point in this argument, but also a fundamental error. The valid point is that any legal order necessarily contains a sovereign power - an individual or group that forms the highest court of appeal or review.11 Of such a body it can justifiably be said that it is princeps legibus solutus (the sovereign not bound by the laws) and that quod principi placuit legis habet vigorem (the will of the sovereign has the force of a statute).12
Both these quotations are from ancient Roman legal sources extensively used by ‘imperialists’ and monarchists in the medieval and early modern period. Augustine and other Church Fathers ‘theologised’ this Roman state doctrine by linking it to the theology of the ‘fallen’ nature of humanity: law, in their view, consisted only of commands from a determinate superior, by analogy with god’s command to Adam and Eve not to eat the fruit of the tree of knowledge. Hobbes only slightly secularises this conception: his ‘state of nature’ as the “war of all against all” is nothing but a pseudo-secularised variant on ‘original sin’.
But then on this analysis - which underlies Bodin’s argument for the indivisibility of sovereignty13 - the USA has a sovereign. It is the Supreme Court of the US (Scotus). This is a body of members indirectly elected by a tortuous process (presidential nomination and senatorial approval) to hold office for life, which is sovereign within the US legal system. Scotus is about 80% of the time ‘King Log’, leaving substantive decisions to the presidency and the Congress either as ‘political’ or as not involving a ‘cause or controversy’, and only about 20% or less ‘King Stork’, making an arbitrary decision that it will hear a case and decide it. But that does not alter its sovereign character. The UK parliament - in theory sovereign - also most of the time leaves substantive decisions to be taken by ministers (through ‘delegated legislation’, and through ‘soft law’, by which they issue quasi-binding advice), by quangos like the Charity Commission or the Equality and Human Rights Commission, or by the courts.
But this analysis in fact exposes what is fundamentally wrong with Bodin’s indivisible sovereign, the judge who is not judged in return. Sovereignty and other constitutional rules are decision procedures for collective action - in the first place, the collective action of state actors, and hence the basis of loyalty of soldiers, cops, civil servants and so on; but, more widely, decision procedures for the collective action of the members of the society at large. Law as a mode of decision-making - reference of disputes to judges - requires that there must be a final court of appeal that is legibus solutus. But this is not a requirement either of custom or of political decision-making in general.
The ideology of the rule of law provides a basis both for state officials’ loyalty to capital and for judicial ‘back-stopping’ in the interests of capital. An actual ‘rule of law’, meaning that all decisions had to take the form of laws or of judicial judgments - ie, government by judges alone - would simply not work: the procedural forms that enable the appearance of fairness between two parties or limited parties disable short-term decision-making in any reasonable time, and in relation to longer-term issues disable hearing from a full range of those affected, thus producing radical irrationalities.14 At best, the governing judiciary would turn into an arbitrary and corrupt authority, as in Susan R Matthews’ Judiciary series.
In consequence, every constitution necessarily includes not only laws, but also customs. In the UK, the customs of the constitution are called ‘conventions’ and openly recognised.15 They can mutate: thus, the convention of cabinet collective responsibility appears to be breaking down as a result of the direct election of party leaders and of the Brexit debates, with ministers pretty openly briefing against each other.
Some matters are conventions, but are not recognised as such. For example, the final appeal (mostly) is determined by SCUK (there are some exceptions); so that SCUK is the actual juridical sovereign. But there is a convention that it will not strike down acts of parliament (passed by the monarch, the Lords and Commons), except so far as provided (in 1972-2018) by European Union law, and since 1998 by the Human Rights Act. The origin of this convention is post-1688. It was powerful, because the House of Lords that was the final court of appeal was the same House of Lords that was the second chamber of the legislature, so that the Lords were unlikely to vote in an appeal to overturn what they had recently voted for as a statute. Since the exclusion of the lay peers from voting in judicial appeals in the 1840s, and all the more since the creation of SCUK in 2004, there is no legal mechanism short of impeachment or bill of attainder - ie, a constitutional crisis - to prevent SCUK from doing its own ‘Marbury v Madison’ to create judicial review of statutes: it is merely a convention.
In the USA, such customs exist, but are not generally openly recognised as part of the constitution. The pretence is maintained that the constitution is purely legal. Indeed, some customs are written into the constitution, but are not justiciable, because it is hard to imagine a ‘cause or controversy’; so they can only operate in practice as customs.16 The Senate filibuster and the need for a supermajority to defeat it is a customary, not a legal, rule. In some cases custom may function as an interpretive device: Marc O DeGirolami has made this point in a recent article.17 In yet others, the custom may flatly overthrow the constitutional text: as in the case of the custom, grown up since 1945, which allows the president to conduct aggressive military operations overseas without a declaration of war - in defiance of the text of the constitution that vests the power to declare war in the Congress.
This customary rule of the ‘imperial presidency’ reflects the USA’s inheritance of Britain’s former position as world top dog. It is, I think, striking that Congress and the presidency are not gridlocked in relation to US imperial interests overseas - whether on maintaining Israel’s ‘qualitative military edge’ or on opposing Nord Stream II or pursuing aggressive naval operations in the Black Sea, or on the tightening efforts to create encirclement of China.
The gridlock arises because the customs and political practices which allowed non-Republican presidents to pursue domestic agendas have been rejected - in essence because the major bribe-payers want to roll back ‘socialism’ (meaning employment rights, welfare and so on) in the US itself, with the result that the Republican Party in Congress is radically more disciplined than its Democratic opponent, and willing to exploit every legal or customary avenue to deny legitimacy to its opponents: morphing, gradually, into a counterrevolutionary party. The problem is not of general gridlock, but of the use of gridlock devices to enforce a political ratchet towards the right. It thus reflects both the hubris of victory over the USSR and simultaneous ‘declinism’, thanks to the tendency in declining capitalism for the forces of production to turn into forces of destruction.
These are common features with other forms of capitalist constitution today - not uniquely American.
‘Ulpian’ (writing in the 210s CE) in The digest of Justinian 1.3.31: “Princeps legibus solutus est” (“The emperor is not bound by statutes”). This was extensively relied on by medieval and early modern lawyers - see, for example, K Pennington The prince and the law 1200-1600 Berkley 1993.↩︎
Eg, cosmonaut.blog/2020/12/02/lenin-and-the-class-point-of-view-looking-at-chris-maisanos-the-constitution-and-the-class-struggle; cosmonautmag.com/2021/06/democracy-and-socialism-the-two-edges-of-marxisms-knife.↩︎
M Macnair, ‘Die Glocke or the inversion of theory: from anti-imperialism to pro-Germanism’ Critique Vol 42 (2014); B Lewis, ‘World War I: SPD left's dirty secret’ Weekly Worker June 26 2014 (weeklyworker.co.uk/worker/1016/world-war-i-spd-lefts-dirty-secret), and the series in following issues of this paper.↩︎
P Demarty, ‘Manufacturing consensus’ Weekly Worker September 2 2021: weeklyworker.co.uk/worker/1361/manufacturing-consensus.↩︎
There are certainly different views in Scotland, Wales and the Six Counties …↩︎
On the British in the first half of the century cf D Edgerton Britain’s war machine London 2012.↩︎
G Garnett The Norman conquest in English history: volume 1: A broken chain? Oxford 2020, ppvii-viii. For another instance of medievalism in political argument see my ‘Outlook Moggy’ Weekly Worker July 19 2018 (www.weeklyworker.co.uk/worker/1212/outlook-moggy): we, like the journos, may have mocked Rees-Mogg, but it was his policy which won.↩︎
Relatively recently, there is the Universities of Oxford and Cambridge Act 1923. The text and provisions of the 1877 act referred to are available at www.admin.cam.ac.uk/univ/so/2016/acts-section1.html.↩︎
See, in particular, J Prest Liberty and locality Clarendon 1990.↩︎
PD Halliday Dismembering the body politics: partisan politics in England’s towns 1650-1730 (Cambridge 1998) makes clear the divide in 1688. On earlier periods, see H Garrett-Goodyear, ‘The Tudor revival of quo warranto and local contributions to state-building’ in M Arnold et al (eds) On the laws and customs of England Chapel Hill 1981, chapter 9; C Patterson, ‘Quo warranto and borough corporations in early Stuart England: royal prerogative and local privileges in the central courts’ English Historical Review Vol 120 (2005), pp879-906. These references concern urban government: rural local government was mainly by justices of the peace, who were subject to much more immediate control, appointment and dismissal by central government.↩︎
The point is argued by Robert Wiseman in Law of laws (1657).↩︎
See the first quotation in note 1. The second Justinian Institutes 1.2.6 is also taken from ‘Ulpian’ 1.4.1.↩︎
See Bodin’s argument in JH Franklin (ed) On sovereignty: four chapters from the six books of the commonwealth Cambridge 1992.↩︎
I have given a small example in ‘Can judges be trusted with the common law’ (2018): judicialpowerproject.org.uk/mike-macnair-can-judges-be-trusted-with-the-common-law. Judicial decision-making between parties in the interest of private landlords and the Conservative Party costs the UK taxpayer £23 billion a year.↩︎
There is a useful, if now rather elderly, discussion in G Marshall Constitutional conventions Oxford 1984.↩︎
There are several examples in J Wexler The odd clauses Boston MA 2011.↩︎
‘The traditions of American constitutional law’ Notre Dame Law Review Vol 95 (2020), pp1123-81.↩︎