"Constitutional hardball"
On our minds: Boris, Brexit and constitutional hardball. |
The Phrase to Understand Brexit and British Democracy: Constitutional Hardball |
 | | This photo of Mr. Johnson with Queen Elizabeth II is from before this week's Brexit dramas, but it works as a metaphor.Pool photo by Victoria Jones |
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Is Boris Johnson, the British prime minister, undermining British democracy? Attacking it outright? Or merely working within it? |
That's one of the big questions that political scientists and columnists are grappling with in the wake of Mr. Johnson's big Brexit ploy: asking the queen to suspend Parliament for most of its working days between now and the deadline for Britain to reach an exit agreement with the European Union. Parliament looked unlikely to support Mr. Johnson's plans for Brexit, so he has more or less shut it down. |
Yes, he really can do that. Technically. |
But a lot of things that are technically allowed within the rules of a democracy can be nonetheless undemocratic in spirit and effect. Or bad for democracy's healthy functioning. Or can erode the democratic norms that are just as important, or more important, than the rules themselves. Or all of the above. |
There's a phrase for that, and it's essential for understanding this week's Brexit drama and what it means for British democracy: constitutional hardball. |
Coined in 2014 by Mark Tushnet, a Harvard University scholar of constitutional law, the phrase refers to the exploitation of rules and procedures for political gain and at the expense of unwritten democratic norms. |
That can erode democracy from within. Other political actors feel pressure to exploit rules and break norms themselves, or else face a systemic disadvantage against those who will. In the most extreme cases, that can lead to a cycle of tit-for-tat escalation until the norms are gone, the rules are stretched beyond recognition and democracy is no longer quite as democratic. |
Mr. Johnson's ploy sure seems like constitutional hardball. He has effectively excluded Parliament from the most consequential political decision in a generation. He has put himself in a better position to impose his vision of Brexit without democratic checks. And it's all within the rules. |
But this is an unusual case — not so much because of Mr. Johnson's actions, but because of the political system in which he's acting. To see what we mean, it helps to look at a more textbook case of constitutional hardball: the blocking of Barack Obama's last Supreme Court appointment as president. |
Technically, Senate Republicans were operating within the letter of the law when they announced that they would block his nominee in the hopes that Mr. Obama would be succeeded by a Republican president who would instead appoint a conservative justice. Mitch McConnell, the Senate majority leader, initially justified this by saying that the Senate should not fill a Supreme Court seat in an election, but later said this did not apply to Donald Trump's presidency, all but conceding that he'd exploited the rules for partisan gain. |
There are three important things to know about constitutional hardball. |
One: It works. Had Mr. McConnell not played constitutional hardball with this appointment, the court's ideological balance would today consist of five liberals and four conservatives. Instead, it has five conservatives and four liberals. That has already had huge consequences for American politics and society. The court has ruled that deliberate partisan gerrymandering is legal, potentially tilting American elections for a generation. It affirmed Ohio's decision to purge voting rolls, paving the way for more purges that often disproportionately affect minority voters. It delivered a major, possibly permanent, blow to labor unions and their power. It affirmed Mr. Trump's travel ban against several Muslim-majority countries. And that's just the first two years. |
Two: It's not good for democracy. American political institutions are meant to reflect voter preferences and wishes. That's democracy. Voters elect presidents who in turn appoint Supreme Court justices. But Mr. McConnell derailed that process. As a result, the Supreme Court does not fully reflect either the intentions of American voters or the spirit of the American political system. (A telling stat: Democrats have won the popular vote in six out of the last nine presidential elections, but liberals hold only four of nine Supreme Court seats.) That's bad for the court's legitimacy. It's bad for popular perceptions of the legitimacy of American democracy itself. Democratic voters are now systematically underrepresented on the Supreme Court relative to their actual democratic participation, and will most likely remain so for a generation. |
Third: It puts opposition parties in an impossible bind. To continue following the case of Mr. McConnell and the Supreme Court, Democrats now face two bad options. They can continue playing by the written and unwritten rules of Supreme Court appointments, knowing that they and their voters will be structurally disadvantaged by the other side's willingness to bend or break those rules. Or they can follow Mr. McConnell's example and bend those rules themselves. Some candidates for the Democratic presidential nomination have already proposed countering by stacking the court, creating new seats to give to liberal justices until it again leans liberal. This would be dangerous for the same reasons as Mr. McConnell's initial move, and because it would make it easier for Republicans to justify stacking the court at their next opportunity. This cycle of counter-escalations has, in some cases, continued to the point that democracy isn't just weakened, it's broken. |
But it's that last aspect of constitutional hardball — the risk of tit-for-tat — that makes what's happening in Britain unusual. Because the British political system and the fight over Brexit don't align all that neatly with the usual practices and incentives of constitutional hardball. |
That could make Mr. Johnson's constitutional hardball pose less of a danger for British democracy than a similar move might within, say, the American political system. But it also makes it more worrying as an indicator of the health of global democracy, because it suggests that the practice of constitutional hardball may be spreading. |
Constitutional hardball is more common in presidential systems like America's than in parliamentary systems like Britain's. The parliamentary system doesn't have the same separation of powers that can give opposing parties — for example, one in the presidency and one holding the legislature — dueling power centers from which to wage war. |
Mr. Johnson, as prime minister, is Britain's executive as well as the head of the party that controls the legislature. That's just how parliamentary systems work. You might think this would open the door to hardball-style abuses of power, but it actually makes those abuses less likely by removing the need for them. In theory, prime ministers shouldn't have to play constitutional hardball; they can just tell their party what to do. |
Mr. Johnson, though, is playing constitutional hardball in part against his own party. Not enough Conservative Party lawmakers support his Brexit plan for him to proceed. It's pretty unusual for prime ministers to declare war on their own party because the party can just vote to remove them. And there's a real risk that could happen to Mr. Johnson if Parliament holds a no-confidence vote. |
All of this reduces the dangers of constitutional hardball because there's just less incentive for politicians in a parliament to play it. Not because it's more discouraged — it isn't — but because playing brings less gain and more risk. Individual players will face less incentive to escalate, making escalation less likely. |
Another thing that makes this case unusual is that political polarization is playing less of a role than it does in most cases of constitutional hardball. |
In a recent book on how democracies erode or even collapse from within, the political scientists Steven Levitsky and Daniel Ziblatt found that polarization is often a major driver of constitutional hardball. It gives politicians both an incentive to play hardball and protects them somewhat from backlash. Mr. McConnell, for instance, could count on the support of Republican voters, lawmakers and media figures who saw thwarting liberal control of the Supreme Court as more urgently necessary than upholding democratic norms around court appointments. And a future Democratic president will most likely feel similar pressure to pack the court. |
British politics are deeply polarized at the moment — between proponents of leaving the European Union versus those who want to stay. But the major parties are internally divided on Brexit, so polarization fractures the parties rather than pitting them against one another. |
Politicians are more apt to play and win constitutional hardball if they can present themselves as playing it on behalf of their political team and against an opponent so dangerous that hardball tactics are justified. This lets them say: Sure, this might undercut democracy in the short term, but in the long term, it is necessary so as to save democracy from its true enemies in the other party. |
But Mr. Johnson doesn't have polarization helping him here. His party is disunited. The "leave" camp is disunited, with its hardliners furious at Mr. Johnson for cutting them out in Parliament. So he doesn't have a big political faction to polarize on his behalf, nor a clear enemy against which to polarize them. |
All of this makes Mr. Johnson's move look a little strange. He's for sure playing constitutional hardball, but not under circumstances that are typically seen as most favoring and incentivizing it. |
In terms of what this all means for democracy, regardless of what you think of Mr. Johnson or his Brexit plan, constitutional hardball is still constitutional hardball. It's the exploitation of rules and procedures for narrow partisan advantage and at the expense of essential democratic norms. |
But there's a glass-half-full and a glass-half-empty way to look at this case. The less pessimistic view is that the unusual circumstances make any long-term damage to British democracy less likely (though far from impossible), because conditions just do not favor an escalation of hardball the way that they do in, for example, the United States. The more pessimistic take is that this suggests that constitutional hardball is becoming more common if it is now taking place even in a system and a political climate that was thought not to favor it. |
In either reading, it is hard not to think of a quote from a New York Times Op-Ed essay by Mr. Ziblatt and Mr. Levitsky, the scholars of democratic decline. |
"Look at any failing democracy and you will find constitutional hardball," they wrote. |
As long as we're discussing politics in the Anglosphere, here's a recent quote on immigration and what it means to be Canadian, from Wayne Potoroka, the mayor of Dawson City, Yukon: |
| Canadians are born all over the world, it just sometimes takes them a bit of time to get here. |
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