18.11.2021

In modern times

Capitalism needs an ideological cover for its minority rule, but it also needs the constitutional rule of law. Socialism will be different. Mike Macnair spoke at the Online Communist Forum on November 14. This is an edited version of his talk

I hope to summarise some of the issues in my recent series on constitutions and the debate around it.¹ I begin with something I have been asked at work to circulate to students: The Times Law Awards 2022 essay competition. The set question is: “‘To no one will we sell, to no one will we deny or delay, right or justice’ (Magna Carta clause 40): is the state financing the criminal justice system properly, and if not is privatisation a possible solution. Would this mean selling justice?”

This is, I think, a reasonable recent illustration of a point which I made in my most recent article in the series: that the idea of the British ‘ancient constitution’ is alive and kicking in the 21st century. People still argue about the rules of Magna Carta, about the 1200 Treaty of Le Goulet, King John’s surrender of England to the Pope in 1213, and so on. The question whether Brexit could happen by royal prerogative without there being an act of parliament, and of the extent of the right under that prerogative to prorogue parliament, were litigated up the UK Supreme Court in 2017 and 2019.

Gridlock

The second point concerns absolutely immediate British politics: the Owen Paterson story. Paterson was found by the Parliamentary Standards Commissioner and Standards Committee to have broken lobbying rules, and they recommended that he should be suspended as an MP. The initial reaction of the Johnson government was that they sought to overthrow both the condemnation and the whole current parliamentary standards regime and create a new one, in which activities like Paterson’s would be acceptable. Since the Tory Party has a large majority, holding 360 of the 650 seats in the House of Commons, even a substantial Tory rebellion did not prevent the proposal going through.

But within a few days the government did a U-turn. It did so because the media did not like the idea of the Tories abolishing the current regime of controlling MP sleaze. And the ‘Tory sleaze’ story has run on for the last fortnight and is giving rise to considerable embarrassment in the government - and indeed to a sudden loss of the Tories’ lead over the Labour Party in the opinion polls.

A large parliamentary majority is here defeated by the ‘fourth estate’ of the press barons. The same happened in a different way over Brexit: an informal part of the constitution (the advertising-funded media) overruled the formal sovereign.

This is not the only U-turn which this government has executed.² Probably the clearest symptom of the problem is planning law. Britain has got a serious housing problem and the Tories’ solution was to radically overhaul planning law in order to enable the building of new houses (it is actually unlikely to work). Nonetheless, that was the only policy which they had; the alternative, which would be to abolish council house sales and set free the councils to build new housing, is unthinkable, not only to the Tory Party, but also to the Labour right. The reform proposals have now been abandoned due to unpopularity with Tory voters in the countryside, small towns and suburbs. In consequence, on the housing question, the political process is gridlocked: it is impossible to do anything of substance about the housing question. This is merely an example of a more general problem of political gridlock.

This gridlock in the political process has got nothing to do with the theoretical legal position according to the constitution, which is that the queen-in-parliament is sovereign. Hence a government which has a clear parliamentary majority ought to be able to overcome obstacles, to bulldoze its way through, to activate its decisions. This government is not able to, and in fact the Blair government was not able to either - beyond introducing devolution and the Human Rights Act. The gridlock is coming from political processes, not from juridical limits.

Conversely, in the United States, which is where we began in this discussion, US domestic politics is gridlocked. Joe Biden is unable to deliver anything more than a limited infrastructure bill. It is a big bung to the construction firms, but not what his supporters voted for. He is unable to deliver because the Democratic Party is split - the major bribe-payers have loyal agents among Democrats in the Congress, who will block change which in any sense is in the interest of the working class; the Republican Party, on the other hand, is solidly disciplined; and by virtue of the constitutional structure of the United States, the rural classes control the Senate (and are overrepresented in the House and in presidential elections). Hence the ability of any Democrat administration to do anything of any substance other than give favours to high-rate taxpayers and the financial sector is extremely limited.

But the US Congress and administrations are not gridlocked on everything - on any issue of foreign policy, for example. In spite of the changes in rhetoric between the Obama, Trump and Biden administrations, there is continuity. That is the case in relation to Obama’s ‘pivot to Asia’ - meaning increasingly aggressive encirclement of China. So too in relation to defence of the Ukraine and US efforts to get the European states onside in the case of a shooting war. In relation to sanctions on Iran it turned out that there was very limited movement by the Obama administration and, while there was a sharp turn under Trump, the Biden administration has not significantly rowed back on its predecessor’s line: it has continued to demand from the Iranian government that it make more concessions than those which were made for the nuclear deal under Obama. So, the reality is that the structure of US politics is characterised by bipartisanship on international and military affairs.

And the gridlock which exists is not over tax cuts for the rich: only over welfare measures for the poor. It is only a gridlock over measures which would reduce gerrymandering, control political contributions, and so on. This is equally true of UK politics. What appears as gridlock in UK politics is principally over anything which moves against the interests of donors to the Conservative Party.

My whole series of articles and the subsequent debate has been about the question, ‘Is the phenomenon of gridlock on domestic politics in the United States a product of the antiquity of the US constitution?’ Conversely, are the analogous ‘gridlock’ features of UK politics a product of the antiquity of the British constitution? This, I argue, is on any terms a great deal more antique than the US constitution: there is the monarchy, the established church, matters being decided by royal prerogative, the House of Lords that includes the bishops and a significant chunk of hereditary peers - and so on.

In a sense, these points close the circle of my argument in the debate: what is causing gridlock is the dominance of the possessing classes in the political processes, rather than particular features of the juridical constitutions, whether US or British (and with very limited research one could find similar gridlock stories for France, Germany, Italy, the Netherlands ...). Even with a juridically sovereign parliament, the regime of advertising-funded media, etc may give press barons and Tory constituencies a liberum veto like the aristocrats of the old Polish pre-partition Sejm in the 18th century.

But it is more important to think more generally about ‘What is a constitution?’; about why it is necessary for rising classes to overthrow the pre-existing constitution in order to develop the new social order of which they are bearers; and about the rise of capitalism and the feudal constitutions, and therefore why we have this strange ideology, in England in particular, of the ancient constitution. And, further, about why all capitalist constitutions are engines of minority rule, even though they hold themselves out as being ‘democracies’.

Two sides

I start then with the question, ‘What is a constitution?’ A constitution basically has two sides to it. The first is that it is a set of rules and practices of decision-making - characteristically of a state, but we can perfectly well talk about the constitution of a party, a church, a bowls club or whatever. The rules and practices, it is important to be clear, are not all legal.

Now, I want to pin down two aspects of this. The first is that the mere fact that something is written down in a statute does not make it a legal rule. Legal rules are those which are justiciable, which a court is willing to enforce if they are understood to be infringed or broken. Legal rules therefore do not have to be statutory and indeed an awful lot of both English law and American law is non-statutory ‘common law’, precedent-based doctrine and so on. Conversely, there are rules contained in statutes which are not enforceable in any court, and to that extent it is probably best to regard them as rhetorical statements - or advertising - by governments.

The clearest English example of this is the Education Act 1944, which contains extensive provisions about councils providing state schools, their organisation, etc. And one - only one - justiciable clause. This is one which actually is not enforced: which is that every school must have an act of Christian worship every morning. In practice most schools dodge around this by holding more or less fuzzy ‘ethics’ assemblies of one sort and another. But the statutory rule which is enforceable is just that.

There are similar things in the constitution of the United States. This states that the right to declare war is vested in the Congress - absolutely clear. Now, on a straight ‘originalist’ understanding of what the drafters of this text meant in the late 1700s, it is clear that they meant that the US armed forces might not engage in military operations outside of the United States without congressional approval. The president could engage in military operations in defence of the United States if it was invaded (as in 1812 by the UK). But taking aggressive military action without a declaration of war was understood in the international law of the period to be merely piracy or armed robbery.

But, as far as the US Supreme Court is concerned, this provision is not justiciable - it cannot give rise to a “cause or controversy between private individuals”. Nobody can suffer any loss, who has any standing to sue in the courts of the United States. Those who are bombed as a result of unauthorised military operations overseas do not have standing to sue the US administration in the courts of the United States, because, as far as they are concerned, what the US has done is an act of state. And, conversely, if Congresspeople said that they want to litigate the question of the war powers, the Supreme Court will not accept such a suit because it does not represent a ‘cause or controversy’, since the members of Congress lose nothing by virtue of the president’s action. And, in consequence, since the end of World War II it has been routine practice for the US presidency to go to war without the consent of the Congress.

Here there is a process whereby there is a gradual accretion of power to the executive. This also reflects more generally the role of the ‘imperial presidency’, as the United States has become ever bigger as an imperialist power. This rule that there can be no litigation without a ‘cause or controversy’ is a customary one (in England such rules are called ‘conventions of the constitution’). This overrules the statutory rule in the constitution.

In other words, constitutions are rules and practices of decision-making. These may be legal or customary rules, but no amount of careful drafting of the legal rules will prevent the development of customary rules, which may override them. In the USA the custom of the imperial presidency overrides the lex scripta of article I, section 8, clause 11 of the constitution. In the UK the customary rights of the press barons overrides the legal doctrine of the sovereignty of parliament.

The second thing constitutions are is that they contain principles of loyalty, around which the state actors are organised. Societies need to organise the loyalty of state actors because, other things apart, a state is just a protection racket. It is just a bunch of guys with guns - or before that swords, bows and arrows and such-like - who point them at the general public and by doing so extract taxes.

True, states actually do various things which to a greater or lesser extent are useful - for example, maintaining roads - but their core is the forcible extraction of a share of the surplus product as tax, and hence they remain vulnerable to the same problem that affects armies: if they have a victory and then break up in order to loot, the army ceases to be an organised force. There needs to be some principle in the organisation of the state by which state officials are held back from just stealing things. (They are not going to stop stealing things altogether, but it holds them back from doing so to the point that the whole apparatus collapses.)

A recent example is the Afghanistan puppet regime. Those in the state apparatus just stole everything and in consequence the soldiers did not get paid and they were not willing to fight. The same thing happened in the last years of the tsarist regime: the extent of corruption in the logistics apparatus in 1914-17 was such that the regime was unable to deliver both food to the cities and food and ammunition to the armed forces (which triggered 1917). The ‘White’ armies in Russia during the civil war period very rapidly became just gangs of looters. And so on.

We need the two sides of this to understand constitutions: both the rules for decision-making and the fact that those rules also serve as an ideology, which holds the state officials back from looting. Daniel Lazare made a useful point in our discussion of this talk on November 14: the constitution is a theatrical product which dramatises the state and its relations to the outside world.

The ideology which holds the state officials back from looting has the consequence that the state officials are loyal to the principles which are expressed in the constitutional conception. And those principles are part of the ideas of the ruling class. It is clearest to express this by looking at the difference between feudal and capitalist constitutions.

Feudal and capitalist

Feudalism is characterised by the split of the exploiting class between the military nobility, on the one hand, and the clergy, on the other. Going along with that, there is the ability of the primary producers to manoeuvre between the local parson or (Christian or Buddhist) abbot, and the local squire or samurai. The result is substantial growth in the forces of production, arising from the ability of the primary producers to reinvest - which does not exist in classical antiquity.

Because feudal society does not understand the villeins - the peasants - as being outside of society, unlike slaves, how does it understand the right to rule? The answer is that the right to rule is given by the personal inherited characteristics of the knight, the gentleman, the baron, the prince ... but also by the personal sanctity of the clergyman.

But the consequence of this dependence on the personality of the ruler, the personality of the clergyman, is against the interests of the development of proto-capitalism. The reason for this is that capitalism involves money (M) put into commodities (-C), and the commodities are then worked up through a production process (… P…) involving collective activity by groups of wage workers. The produced commodity (Cʹ) then has to be sold off and realised with a profit at the end of it (-Mʹ). The problem with the feudal state is that it is all too easy for the personal character of the monarch, the bishop or whatever to interfere with the process.

I gave an example in one of the articles. Andrew Yarranton and his partners invested a lot of money buying the tin-plating process from the prior inventors in Saxony and working out how to activate it, only to discover after, when they were ready to go to market, that King Charles II had privately given a patent for tin-plating to a crony of his. That knocked Yarranton and his partners out of the picture.

We can see equally in Renaissance Florence, how Savonarola (to take a single example among many) got up an agitation against the authorities on the basis that they were tolerating all sorts of immoralities inconsistent with Christian law. Now, the point is not that Christian law prohibits profit: the point is that it can be read as doing so - somebody can get themselves up as a holy man, and on that basis arbitrarily interfere with the circulation of capital.

So the capitalists need a new state form, which is not based on the government of men - whether of princes because of their natural nobility or of religious agitators because of their natural personal sanctity. The capitalist state needs to be a Rechtsstaat - a ‘rule of law state’.

That is already the case in the medieval Italian city-states. They start by arguing that they are subject to Roman law: ‘We appeal to Rome. We are the heirs of the ancient republic.’ This is not by any means unique. Marx wrote in the 18th Brumaire of Louis Bonaparte about how the French revolution was dressed in the clothes of ancient Rome. But they were not the first people to do so. Nathaniel Lee’s 1680 play Lucius Junius Brutus, about the foundation of the Roman republic, was suppressed by the royalists as seditious. Joseph Addison’s Cato (1713) again appealed to the Roman republic: it was a huge Whig hit. The American revolutionaries of the 1770s similarly appealed to the Roman republic.

There is a problem with this appeal to Rome, however. It is a poisoned chalice because the Roman law sources that we have are actually from the Christian emperor Justinian in the 6th century AD. The sources have precisely the idea that the will of the prince has the force of law, that the prince is not bound by the laws; and they also have explicit provision for the jurisdiction of bishops, usury and so on.

Later on came the argument, ‘We don’t want the Justinianic law: we want Roman laws from republican times.’ So François Hotman wrote in the late 1500s a book called Anti-Tribonian - directed against Tribonian, who chaired Justinian’s Codification Commission - urging a return to older law.

Nonetheless, it is a poisoned chalice and the people who succeeded in creating independent capitalist states were the Genoese and the Venetians, who did not follow the ‘Roman law is our law’ line, but instead argued, ‘We have ancient constitutions which go back to immemorial antiquity, and these make us autonomous.’ The same happens in relation to the Netherlands and England, where we have the development of the idea of a constitution that is so ancient and so powerful that it holds the king in subordination - and therefore all the magistrates too.

These, then, are experiments in how to get a rule-of-law state. The result of the geopolitics of its creation in the Netherlands and in England is that by the early 1700s all those who would quite like to have something better than the feudal/religious regime were thinking ‘We want some of that’. They were not thinking of it as their ‘ancient constitution’. Rather, they believed that the Dutch and the English had shown that there can be progress: the world moves forward, things get better and this progress is leading towards enlightenment. Therefore they should draw up an ‘enlightenment constitution’ - one which is the product not of remote antiquity, but of redesign.

But enlightenment turns out also to be a poisoned chalice for the capitalist class. The reason is that the capitalist constitution, although it needs to be based on the rule of law, also requires a regime of minority rule. That is because the capitalists are a minority class. The capitalism which produces the great military capabilities, and hence the geopolitical advantage, of the Netherlands and Britain over France, is precisely the form of production through the circuit M-C-P-Cʹ-Mʹ, in which P is production by organised groups of workers. It is the unity of the market and the factory - even if the factory has not steam-driven, but wind-driven machines, and so on. So enlightenment thought does not provide a sufficient reflection for the authority relations of the factory.

It is not, on the other hand, that the factory is the epitome of modernity: left fans of German capitalism (Parvus, Hilferding and others) thought that Germany had organised capitalism, as opposed to the disorganised liberalism of Britain and the United States, and that organised capitalism was the way of the future. That picks up one side. On the other side, the enlightenment line picks up the other half: it just looks at freedom and equality in the market and forgets about the presence of hierarchy and authority in the workplace.

Hence the point that the enlightenment constitution is contradictory from the point of view of capital. It is therefore problematic. On the one hand, its great advantage over ancient constitutionalism is that you are set free from whatever happened hundreds of years ago. On the other hand, there is also a real danger that enlightenment ideas lead to such thoughts as ‘Why should I be subordinate to the foreman on the shop floor? Or my line manager?’ Or ‘Why should we as small operators of one sort and another be out-bribed by the rich? Why should it be the case that the big capitalists have priority access to MPs, which the rest of us don’t have?’

And might there not, indeed, be a future after capitalism? Progress might not just stop where we are. We may be able to think in terms of Spencean communism or Owenite cooperation, of Flora Tristan’s Workers’ Union, or of the red republicanism of Helen Macfarlane ... or Marxism, which emerges from this milieu.

And so capital moves away from enlightenment constitutionalism in a to-and-fro process. Enlightenment constitutionalism does not just disappear, but capital moves away. In the US the form which this takes is ‘originalism’. Originalism as an approach to interpreting the US constitution emerges in the 1980s, along with neoliberalism. Theoretically originalists claim that we have to interpret the US constitution on the basis that what the people writing in the 1780s meant is the only thing that the document means. However, it turns out that after 10 or 20 years the originalists were no longer interested in hearing from historians of the 18th century what the intellectual context of those writing in the 1780s was. On the contrary, they have a construct which they will not permit to be interrogated. And this historical construct of modern originalism, of Justice Antonin Scalia (1936-2016) and others in the US Supreme Court and on the right, is a peculiar sort of rose-tinted-spectacles image of the past, which has indeed very much the same sort of character as the fantasies of Chief Justice Sir Edward Coke (1552-1634) of the Anglo-Saxon Parliament.

Capitalist and proletarian

We need to think about what the proletarian constitution should be. What alternative is there to capitalist constitutionalism?

Capitalist constitutionalism is about minority rule, which works through explicit mechanisms - the monarchy and related institutions, such as the oath of allegiance taken by soldiers, police, etc, as backstops, the hereditary peers and the regular sale of life peerages - and through a series of implicit ones. Advertising-funding makes the media corrupt. This, in turn, forces parties and politicians to accept bribes to fund their own advertising.

The right of the MP to a ‘term of years absolute’ (the seat as a property right) is backed by the media. The single-member parliamentary seat and ‘first past the post’, the role of the MP as a sort of ombudsman, and the parliamentary career - the right to stand again and again - also drive towards MPs’ corruption and sleaze, producing laws as well as government contracts and policies sold to the highest bidder; private access by paid lobbyists to ministers and to the Law Commission completes the picture.

Alongside this is the free market in legal services, which amounts to the systematic sale of justice to the highest bidder. England has limited judicial review of statutes, but the right of courts to interpret statutes can have the same effect.

These are all instruments of minority rule. We are concerned with the proletariat as a class, a majority class, which makes democracy its appropriate form of rule. Further, it needs political democracy in order to organise itself.

Both Stalinism and post-World War I ‘social democracy’ have tested to destruction the idea that you can have powerful workers’ organisations without political democracy. In reality, the destruction of political democracy in workers’ organisations erodes their effectiveness. It reduces the trade unions and working class parties to empty shells, which are incapable of actually resisting and defeating the attacks of the capitalist class.

What is political democracy, however? It is not straightforwardly a ‘system of rules’, and certainly not a ‘legal rule system’, in which the last word as to what the rules are is held by judges. The rule of law is the dictatorship of the bourgeoisie. Political democracy has to be a practice: a customary practice, which returns the decisions as far as possible to the ranks.

Paul Cockshott proposed in his 2009 critique of my book Revolutionary strategy “universal online referenda” with the right of initiative, so that anybody has the right to make a proposal. And my response to that was: “Imagine for a moment: you get up in the morning and log on, and find in your inbox 20 million referendum proposals to be read and voted on ...” The reality is that a democratic decision-making process requires us to have mechanisms which sift through, which define and limit, the range of choices we are making, and the processes by which we do so involve political representation. They involve the organisation of factions, parties, and so on.³

If we think thoroughly about political democracy, it will become apparent that in the first place it is necessarily a customary regime primarily; and it is about principles, which shape and guide how we enact our decision-making process. Eg, is this a matter which has to be decided right now, or can it go back to the larger group, and back in turn to the general membership?

That actually entails us thinking about this not as rules of law, not as a complex Heath Robinson constitution (à la Left Unity), which imitates the USA’s judicialised regime. Rather, we need to think democratic practice, political custom and political principle - not in terms of the judge as a saviour on high, who will deliver us!

My first five articles: ‘Constitutions ancient and modern’ Weekly Worker September 2 (https://weeklyworker.co.uk/worker/1361/constitutions-ancient-and-modern/); ‘Artificial antiquity’, September 9 (https://weeklyworker.co.uk/worker/1362/artificial-antiquity/); ‘Class, state and constitution’, September 16 (https://weeklyworker.co.uk/worker/1363/class-state-and-constitution/); ‘Enlightened constitutions’, September 23 (https://weeklyworker.co.uk/worker/1364/enlightened-constitutions/); ‘Decline and decay’, September 3 (https://weeklyworker.co.uk/worker/1365/decline-and-decay/). Then Gil Schaeffer, Letters, September 30 (https://weeklyworker.co.uk/worker/1365/letters/) and Daniel Lazare, ‘Tudor, Whig or what?’, October 7 (https://weeklyworker.co.uk/worker/1366/tudor-whig-or-what/). Myself again with ‘Modern ancient constitutions’, October 28, followed by Gil Schaeffer, Letters, November 4 (https://weeklyworker.co.uk/worker/1369/modern-ancient-constitutions/), and Daniel Lazare, ‘The proletarian sovereign’, November 4 (https://weeklyworker.co.uk/worker/1370/the-proletarian-sovereign/).↩︎
The list is in ‘Boris Johnson’s U-turns: from Brexit to sleaze, a timeline of indecision’ The Independent November 4.↩︎
P Cockshott, ‘Democracy or oligarchy?’ Weekly Worker October 8 2009 (https://weeklyworker.co.uk/worker/788/democracy-or-oligarchy/); M Macnair, ‘Representation, not referendums’ Weekly Worker July 1 2010 (https://weeklyworker.co.uk/worker/824/representation-not-referendums/).↩︎