In a post on his blog The Norton View, Lord Norton argues that the British constitution compares advantageously with that of the United States, which “is now in turmoil” due to “the actions of its dysfunctional leadership”. In Lord Norton’s telling, the UK constitution’s strengths are the Parliamentary system of government and the “culture of constitutionalism”. With some trepidation about disagreeing in this way with a distinguished scholar of politics, I think that this underweighs political contingency, and overweighs constitutional structure, as an explanation for the events on which Lord Norton bases his account.
Lord Norton argues that “the formal constraints” of the US Constitution “have not proved sufficient to restrain the Trump presidency”, because “Trump has proved willing to act unilaterally, drawing on the politics of protest to validate his actions” and also due to “the absence of a sufficiently strong culture of constitutionalism, that is, the acceptance at popular and elite level that the executive is the servant of the constitution and not the other way around”. If I may paraphrase in Madisonian terms, the Constitution has been confirmed to be a parchment barrier ― but ambition has failed to counteract ambition.
Perhaps these claims are a little premature, or too categorical: witness, for instance, the US Supreme Court’s order stopping deportations of alleged gang members to whom the Trump administration is trying to apply the Alien Enemies Act, issued two days after Lord Norton publshed his post. Legal constitutional constraints are bound to operate slowly even when they do in fact operate well. (For his part, Lord Norton points to the 2026 mid-term elections as possible constraining event.) But, I am afraid that Lord Norton may yet be proven right; at least, I think it would also be quite premature to insist that his description of what is happening in the United States is wrong, so far as it goes. This is not where the core of my disagreement with him is.
Lord Norton contrasts the situation in the US with the events of summer and autumn 2022 in the United Kingdom, when first Boris Johnson and then Liz Truss had to resign the premiership after their party turned on them and made their position untenable. He writes:
We benefit from being a parliamentary system, with the head of government and head of state being separate people. … However powerful a Prime Minister is, he or she is constrained by other political actors, including the Cabinet and Parliament, and is dependent on others for their continuation in office.
Lord Norton notes that
When Boris Johnson was alleged to be contemplating requesting a general election to avoid being ousted as Conservative leader, it was reported that the triumvirate of the chairman of the 1922 Committee [i.e. backbench Conservative MPs], the Cabinet Secretary and the Queen’s Private Secretary agreed that if Johnson ‘phoned the Queen at Balmoral to request the dissolution of Parliament, he would be told that Her Majesty could not come to the ‘phone. This was to avoid embarrassing the monarch. Had the request reached her, she would have had the power to say no.
Lord Norton argues that this anecdote also highlights the fact that the UK constitution “is essentially an ingrained morality”, so that “[i]f someone operates on the margins of that morality, as Johnson did, then others combine intuitively to constrain them”. The flexibility of the UK constitution means that “leaders who are not up to the job, be it in terms of policy or principle [can] be removed in between elections”. This is in contrast with the American constitution, which “creates massive obstacles to removing a President – none has formally been removed – and lacks a culture that is sufficiently robust to constrain, at least not with any alacrity, an elective dictator”.
Lord Norton concludes from this that while the UK’s “system of government may not be perfect … in terms of its basic features, we have reason to maintain it”. That may or may not be so, but I do not think this follows from the comparison he sets out. For my part, I think that it is political circumstances more than constitutional rules or even constitutional culture that explain the differences to which he points. Of course, that raises the question of where the constitution ends, and politics begin.
The US precedent for something like the events of 2022 in the UK is the resignation of Richard Nixon. Of course, Nixon was not “formally removed” ― that is, removed by the operation of a conviction by the Senate following impeachment by the House of Represenatives. But nor were Mr. Johnson and Ms. Truss. They neither were fired by the monarch nor had to resign after losing a vote of confidence in the House of Commons. As for Nixon, as e.g. Andrew Glass recounts in a Bush-era story in Politico (or “The Politico” as it then was!), he resigned after Republican congressional leaders, led by Senator (and defeated presidential candidate in 1964) Barry Goldwater, told him that he had lost the party’s support. Basically, the same story as in 2022, though Nixon, mirabile dictu, arguably took the message more gracefully than Mr. Johnson. The US Constitution’s apparent rigidity is not, in principle, an obstacle for the removal of a president who is “not up to the job”.
(That said, there is a structural feature of the US Constitution that might make such removals less likely: the fact that, unlike the British one, it designates a successor to a departing leader. In some ways, this certainty is surely an advantage. But perhaps its downside that is that it removes an incentive to act from most potential conspirators against a party leader. In a Westminster system, they are likely to be eyeing the top job themselves; in the United States, they know they will not get it. And even apart from that, it is easy enough to imagine circumstances where knowing who will succeed a departed President gives pause to those who might be in a position to demand his or her resignation, whether out of fear that the successor will be worse than the incumbent or out of a jealous reluctance to elevate a rival.)
Of course, much has changed since 1974, which is why none of the disgraceful events of Donald Trump’s first presidency, not even the January 6, 2021 coup attempt, nor the omnishambles of his second term, have had the same consequences as Watergate did for Nixon. Mitt Romney, former defeated presidential candidate who in 2019 became the first senator to vote to convict an impeached president from his own party, tried (consciously or not I do not know) to play somethng like the role Goldwater had in 1974. But while the US Constitution hadn’t changed, political circumstances had, beyond all recognition. It was Mr. Romney, not Mr. Trump, who lost his party’s support.
Is this a matter of “constitutional culture”, as Lord Norton would argue? I suppose the answer to this question depends on what one means by “constitutional culture”, and more specifically, on when one can confidently say that political circumstances have gelled into a cultural change. It is abundantly clear that the Republican party is at present and has been for some time utterly unwilling to stand up to the president. It would much rather turn on his critics, even those whose arguments are based on positions in which the party seemed to firmly believe until about five minutes ago. The Democratic party is a arguably less far gone: see the ouster of Joe Biden as presidential candidate last summer, though it is also worth highlighting that Mr. Biden was not forced to step down from the presidency, as Nixon was ― and as he quite clearly should have been, since actually being president is no less demanding than running for the job.
There are no doubt many reasons for why the Republicans have come to be this way, but not the least of them is intimidation by the president and his goons (online and off-), as a sometimes-dissident Republican senator has recently suggested. Whether you think fear excuses a legislator’s silence is a separate issue―the point is that, rightly or wrongly, the legislator keeps quiet because he or she is afraid. Perhaps, if the fear is removed in a not-too-distant future, the party can bounce back towards a greater willingness to uphold the letter and spirit of the Constitution against its own leaders. Perhaps it is already too late. Whether or not all this is enough to count as a change in constitutional culture, I hesitate to say. But, even if it is, it is a change that has been brought about by recent political circumstances, and not some long-standing features of the American constitutional order where, until recently, complaints about excessive reverence for the constitution were fairly commonplace, especially in some excited corners of the political left. (Like most of the political left’s stupid and dangerous ideas, this one has found its way onto the Trumpian right.)
And if that is right, then I’m not sure how optimistic we can be about the state of the UK’s constitutional culture and its ability to serve as a barrier to Trumpian turmoil. To be sure, as Lord Norton notes, Mr. Johnson was operating on the margins of political morality, and was brought to heel by the political and constitutional system. And one might say that Ms. Truss tried operating on the margins of economic morality, and ditto. But neither had established a hold on their party comparable to Mr. Trump’s; both became leaders in the face of considerable division and did not subdue internal opposition ― they certainly did not intimidate it in the way Mr. Turmp does. Moreover, again unlike Mr. Trump, I think that both were ultimately the products of the system and thought of themselves in that way; they would not have wanted to tear the system down, January-6-style. But what about a politician of whom none of these things were true?
Before trying to answer this question, I should note there may be a structural argument for the proposition that this is extremely unlikely in the UK constitutional system, or at least the UK’s constitutional culture. The Politico piece I referred to above quotes Stephen Hess, a scholar of the presidency who himself held various positions in a number of Republican administrations, including Nixon’s, who argued that “Richard Nixon came out of the Congress” and that “[t]he folks who came to him and told him that he had to leave were the same folks who, in a sense, he grew up with”. Mr. Hess contrasted Nixon’s position with that of George W. Bush, a former state governor who would be more willing to disregard his party’s Congressional leaders. UK party leaders are, in this regard, more like Nixon than like Mr. Bush ― or Mr. Trump. As the current Canadian situation shows, this isn’t a requirement of the Westminster system’s legal or conventional rules. But perhaps the UK constitutional culture would prevent the emergence of a Carney-like outsider party leader ― or a Trump-like one.
But, to return to the question above, one need not be a complete outsider to act like one. That, at least, is my impression of the career of Jeremy Corbyn. Suppose he had been just that little bit more successful, enough to win the 2017 election. Would his party have stood up to him for his own excursions into, and outside, the margins of political and economic morality? Would his supporters have not engaged in the sort of tactics Mr. Trump’s have since perfected? I don’t feel confident enough in my understanding of British politics to say anything definitive about this, but I do worry that it is a matter of luck, rather than constitutional structure or culture that the UK hasn’t yet had its own constitution-breaking leader.
So I am pretty sceptcal about the “basic features” of the UK constitution being a bulwark aganist the emergence of a British Trump. If anything can play this role, it is probably the internal structure and culture of political parties. Again I say this in reply to Lord Norton with a great deal of trepidation, because he literally wrote the book on this stuff in the Conservative party. But surely, for instance, of the three men who were conniving to prevent Mr. Johnson from securing a dissoluton in the summer of 2022, the prime mover must have been the chairman of the 1922 committee. If anyone had the legitimacy for engaging in such manoeuvres, it was the representative of the governing party and the parliamentary majority, not those of the civil service and the Palace.
It is the pathetic weakness of the Republican party in the US that gave us the Trump presidency, especially the second time around; it is the almost but not quite equally pathetic weakness of the Democratic party that resulted in last year’s electon going as it did. (Had the party been stronger, it would have ousted Mr. Biden earlier, and perhaps actually winning with a better candidate; had it been weaker still, the Biden candidacy would have gone ahead and resulted in a blowout rather than a narrow defeat.) And if Mr. Johnson had been able to enfeeble the Conservative party in the way Mr. Trump did to the Republicans, he could have had his dissolution ― or wouldn’t have needed one in the first place.
Of course, one might argue that the internal structures of political parties are part and parcel of the constitutional structure or at least constitutional culture. I did not read Lord Norton as making that argument in his post, but perhaps I am mistaken. For my part, I have long disliked the idea of encompassing parties in the sphere of constitutional concerns, for reasons that I cannot really get into at the end of this long post but, briefly, have to do with freedom of association and concern about the omnipresence of public law. But perhaps I have been wrong about that. The question of where (if anywhere) the constitution ends and ordinary (but crucially important) politics begins might be just an intellectual puzzle. But maybe the answer to it is actually very important if we hope to forestall the constitution ending in a different, and more terminal, sense.