Fletcher and Carolan: Debate on “the Lost Constitution” in the UK and the US

[Editor’s Note: In this exchange on I•CONnect, Jamie Fletcher and Eoin Carolan debate the idea of “the Lost Constitution” in conservative and libertarian politics in the United Kingdom and the United States.]

The Rise of the “Lost Constitution” Argument Within Right-of-Center Politics in the United Kingdom and United States of America 

—Jamie Fletcher, Lecturer in Law, University of Winchester

Over the past election cycle, on both sides of the Atlantic, fidelity to the “traditional constitution” has emerged as a principle platform issue within right of center conservative politics. “The need to restore a lost understanding of the Constitution”[1], has become a central tenet of both the United Kingdom Independence Party, in the United Kingdom, and the Tea Party, in the United States. This analysis will focus on how UKIP and the Tea Party have used their country’s respective “lost constitution” as a rallying call, to oppose the continuing drift of powers upwards towards arguably illegitimate levels of government. Opposing their country’s mainstream interpretations of constitutional structure, these two political organizations criticize what they view as diversion from proper form. This blog post will, firstly, comment on the methodological potential for comparison and examine why there is a need for serious comparative work in this area. Secondly, this blog considers the substantive similarities of the Tea Party’s and UKIP’s “lost constitution” arguments.

1. Is comparison possible?

Despite their structural differences, UKIP as a freestanding political party and the Tea Party as a faction of influence upon the Republican Party, both perform a similar political function within their respective country. Primarily this functional equivalence makes UKIP and the Tea Party suitable for comparison. In their respective country, these two entities are “right-wing movement[s] distinct from mainstream conservatism”[2], but both are situated within politics’ mainstream. In the U.K., UKIP is its own political party. While leader Nigel Farage views his party as firmly within the Thatcherite tradition,[3] it stands, they are distinct and separate from the mainstream Conservative Party. The Tea Party is different in that it is mostly, but not exclusively, a faction (caucus) of the Republican Party.[4] Despite this difference, UKIP and the Tea Party both attract conservative voters who believe their country’s dominant center-right party and politicians have strayed too far toward the political center ground.

In February 2013, a YouGov poll found that 60% voters who intend to vote UKIP in the next general election, scheduled for May 2015, voted Conservative in 2010.[5] Meanwhile, a CNN poll, conducted in 2010, found that 87% of Tea Party supporters had previously voted for a Republican candidate to the U.S. House of Representatives, while only 5% had supported a Democrat.[6] Voter movement towards UKIP and the Tea Party, therefore, seemingly occurs for a similar reason, dissatisfaction in mainstream center-right politics. Focal to this frustration is that mainstream conservative parties have yielded on their principles in favor of workable, often more bi-partisan, solutions. Performing a similar political position within their polity, therefore, makes UKIP and the Tea Party functionally comparative.

Another important question to consider is whether such a task is worthwhile. In this instance, comparison is valuable because electoral support for UKIP and the Tea Party could affect the overall result of an election. This hypothesis is formed from their recent electoral successes. In 2010, Prime Minister, David Cameron had described UKIP as a collection of “fruit-cakes, loonies and closet racists.”[7] In the UK’s 2013 County Council Elections, a form of local city/state level elections, UKIP polled 23% of the national vote. Shortly after this election, Cameron had to retreat from his earlier comments, instead, recognizing that UKIP had become a force in national politics.[8] Cameron did not offer his support for UKIP, or its policies, but had to address the concerns of those conservative voters that turned their backs on his party in favor of UKIP. The extent of which is evident from Conservative Party discourse, following the 2013 elections, whereby the possibility of a UKIP- Conservative Party pact in the 2015 general election was openly mooted.[9] The Conservative Party fears that high levels of support for UKIP could result in a Ross Perot situation.[10]

Similarly, in the United States, the Tea Party has become a prominent force within the Republican Party, having a significant effect on which candidates receive party endorsement. The Tea Party ‘Caucus’, (I use this word tentatively as officially the Tea Party caucus has disbanded), as of January 14th, 2013, totaled 47 members of the House of Representatives (11% of all members) and 5 members of the Senate (5% of members).[11] To understand how significant this caucus is, the Tea Party caucus in the House of Representatives of 47 members is larger than the Republican Party’s overall majority of 33. Establishment Republicans, therefore, require the Tea Partiers’ support in executing their majority powers. The benefit of comparing the constitutional outlook of these two entities is, therefore, evident. Firstly, functionally they perform similar role within their jurisdiction, and secondly, both demand analysis because their success or failure, or incorporation within mainstream conservatism, could affect the outcome of national politics.

One further point to draw readers’ attention to is that need to recalibrate the Tea Party and UKIP’s arguments. While it is true that they argue against the illegitimate use of power from different levels of government, the federal government in the Tea Party’s case is a national government, while the European Union in UKIP’s is a supranational body, this is not fatal to comparison. This is because it is the type of argument they make that is important to this analysis. In both instances it is advanced that a higher form of government, exceeding power beyond the “traditional constitution’s” limits.

2. The centrality of the constitution

Both UKIP and the Tea Party have put the ‘lost constitution’ at the center of their political agenda because the constitution is at the center of their political agendas.  Goldstein, for example, suggests the Tea Party is a grassroots political movement focused not on a single issue but on the Constitution itself.[12]  Foley highlights that “Tea Partiers believe that it’s time Americans reacquaint themselves with the constitutional text and its historical context.”[13] Explaining how these two statements should be synthesized, Schmidt states, “The Tea Party has turned to the nation’s founding document as the foundation stone of a campaign designed to right the direction of a country believed to have gone astray.”[14]  Selection of Tea Party candidates depends strongly upon a candidate’s ability to “show suitable reverence for, and detailed mastery of, America’s founding documents.”[15]

Similarly, UKIP was born out of opposition to the constitutional effects of the Maastricht Treaty, which saw the European Community (Union)’s powers grow at the expense of national sovereignty. In its 2010 General Election Manifesto, for example, UKIP stated that because of membership to the EU, the British constitution has become “severely broken down in recent decades.”[16] UKIP summarizes that, “if Britain wishes to succeed and flourish in the 21st century, it cannot do so if its destiny has been chained to that of the EU. It is intolerable that a nation with such potential as our own should be shackled to this EU corpse.”[17]

3. The idea of a “lost constitution”

Randy Barnett provides the most well-known version of the “lost constitution” argument.[18] Others have forwarded similar devices, for example, Richard Epstein’s the constitution in exile,[19] being chief among them. Barnett’s argument goes as follows: many of the Constitution’s key provisions “are now largely gone and, in their absence, the enacted Constitution has been lost and even forgotten.”[20] Forgetting these parts of the Constitution has allowed political factions to radically alter the country’s constitutional structure. Obviously, constitutional amendment is a legitimate political activity; however, Barnett claims that the changes that have resulted in the lost constitution have occurred outside of the prescribed amendment procedure.[21] This form of extra-constitutional amendment is the difference between losing a constitution and legitimate replacement.

In terms of UKIP and the Tea Party, this argument takes the following political form. Once upon-a-time, a particular country’s constitution took X form. X constitution is the country’s greatest achievement, and under the provisions of X constitution, the country flourished. Moreover, X represents the last time the country had a constituent moment in which the people contracted a system of governance with legitimacy. Nevertheless, through subversion, X constitution is no longer operative. Instead, Y constitution controls the country’s politics. Y constitution, though, did not legitimately displace X constitution because neither the proper mechanisms established under X constitution for constitutional change, nor a consistent moment, occurred. Consequently, Y constitution is illegitimate, a distortion for the country’s democratic system of government. Because Y constitution never properly repealed and replaced X constitution, X constitution still exists, we have simply lost it. The most interesting aspect for analysis is not the superficial similarity between how UKIP and the Tea Party bemoan losing our constitutions, but the substantive parallels that can be drawn from their arguments.

4. A similar kind of lost

The most noteworthy parallel is that both “lost constitution” arguments pivot on the belief that constitutional power has been illegitimately siphoned upwards. Larger, less democratically accountable, legitimate, and representative levels of government have pilfered power from smaller units of government. UKIP and the Tea Party’s primary argument is a higher form of government, the federal government in the USA and the European Union in the UK, have overstepped the boundaries of their constitutional power. On the one hand, UKIP believes Westminster’s democratic power has hemorrhaged upwards to the European Union, a less democratic body, at the expense of domestic politics.[22] While, on the other, the Tea Party bemoans how increased federal interference into those activities traditionally reserved for the States distorts the Constitution’s prescribed structure of government.[23] Related through their federalist sentiments, these two arguments criticize a remodeling of their constitution’s proper structure.

In the USA, the Tea Party argues that since the New Deal,[24] and at an accelerated pace under the presidency of Barack Obama,[25] the federal government has legislated in policy areas reserved by the Constitution exclusively for the States. The Tea Party Patriots, a Tea Party organization with over two thousand chapters, holds that “like the founders, we support states’ rights for those powers not expressly stated in the Constitution.”[26] Skocpol and Williamson highlight how states’ rights underpin many Tea Party policies, including gun rights in Arizona[27] and Virginia’s choice to opt out of health care reform.[28] Part of this ideology is rooted in the fact the Tea Party is a dispersed organization with its individual chapters executing a great degree of autonomy. Moreover, the 2012 presidential election platform of Freedomworks, another Tea Party umbrella organization, confirms the centrality of reclaiming states’ powers. Eleven of their twelve platforms, including most directly; the repealing of Obamacare, the reining in of the Environmental Protection Agency, eliminating the Department of Education, and curtailing excessive federal regulation, address the Tea Party’s unease with federal government overreach. Zietlow declares it, “indisputable that the Tea Party movement reflects a certain amount of popular distrust of government and anxiety about change, especially regarding increases in the size and power of the federal government.”[29]

On a similar note, UKIP claims the European Union, without the British people’s consent, has displaced Parliament as the country’s sovereign body. For UKIP, a gap exists between (a) those powers the British people have consented to delegating to the European level of governance, and (b) those powers Parliament has delegated, the European Union has assumed, and European judges have created. UKIP’s overwhelming opposition to European governance is evident in their 2010 General Election Manifesto, which contained nineteen policy platforms. Within those platforms, seventeen mentioned a grievance with European interference with British ‘common sense’ policy decisions. UKIP wants Britain to be able to “choose a new positive vision for her future, free from the EU straightjacket.”[30]

Making the illegitimacy argument is far easier in the Tea Party’s case. The Tea Party deploys the Tenth Amendment, to support its position, which reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”[31]. This Amendment provides the Tea Party’s argument with robust foundations. It depicts a clear structure of government, whereby the federal level is restricted only to those powers expressly granted by the Constitution. Underpinning this is James Madison’s explanation of federal power in The Federalist 45 that federal powers are “few and defined.”[32] The only legitimate way to change this structure is through the Constitution’s Article V amendment procedure. In contrast, UKIP’s consent argument is more difficult to understand because the United Kingdom lacks a written constitution that expressly divides government’s powers.

UKIP’s argument rests on the British people having never consented to the extent of power the European Union controls. Of course, with no written constitution, there is no entrenched written explanation of Parliament and the European Union’s sovereign limits. Instead, as Lord Bingham of Cornhill stated in Attorney General v. Jackson, sovereignty is an “ultimate political fact”.[33] In his judgment, Bingham mentions that, in its current state, “the bedrock of the British constitution is… the supremacy of the Crown in Parliament.”[34] While it is clear UKIP supports, both descriptively and normatively, the idea of Diceyan parliamentary sovereignty,[35] that is, that parliament’s decisions are and should be the ultimate law making institution within the British constitution, it is clear that support rests on its democratic qualities. This is clear from their 2010 election manifesto, which states “UKIP will give power back to Westminster and to the people through binding national and local referenda and more effective, locally-elected representatives.”[36]

UKIP, therefore, distinguishes between a legitimate and an illegitimate diversion from constitutional structure. They do this not merely based on whether Parliament authorized such an amendment, but rather whether Parliament, in conjunction with and on the authority of the British people, amended the constitution. This means that parliamentary sovereignty is not de facto but, instead, rests upon consent of “We the People”.[37] Evidence of this flipping of the orthodoxy comes in its 2010 manifesto. In its platform for ‘The Constitution and How We Are Governed’, UKIP moots the idea of “Direct Democracy” through “instituting directly elected County Police Boards, Education Boards and Health Boards, and supporting directly elected mayors” and granting “a right of recall whereby electors can challenge an errant MP”.[38]

5. Conclusions

The Tea Party and UKIP have included the “lost constitution” argument within their party platforms. While this is interesting in its own right, this piece has made a second level argument, that the way the Tea Party and UKIP make these arguments is substantively similar. Understanding how these arguments have been made, their successes and failures, can provide guidance to a wide range of constitutional actors, to name a few, (a) the center-right parties themselves, (b) their opposition, (c) the electorate trying to understand how their political ideology will affect the country’s constitution. Going forward, this revelation will also open up many avenues for research. An immediate and more complex question for consideration is whether UKIP and the Tea Party offer accounts of their country’s constitution which are actually representative of historical truth or rather extensions of political mythology, constitutions which never existed. That is, is there historical truth in the constitutions these entities are trying to restore, or is it possible that this vision of the constitution never existed in the first place.

Suggested Citation: Jamie Fletcher, The Rise of the “Lost Constitution” Argument Within Right-of-Center Politics in the United Kingdom and United States of America, Int’l. J. Const. L. Blog, Dec. 23, 2013, available at: http://www.iconnectblog.com/2013/12/thelostconstitution