Shall I Compare Thee to a Brexit Wall?

by Simon Lemieux

Unless you have taken up hermiting (and in a locale without internet access), it will not have escaped your notice that two of the world’s self-declared beacons of democracy and constitutional government are currently gridlocked. In the US there is a partial government shutdown as President and Congress (well the House of Representatives to be exact) cannot settle on a budget and whether it should/should not incorporate around $5 billion in funding for a border wall with Mexico. In the UK, the Westminster Parliament cannot agree a way forward for Brexit: soft deal, Mrs May’s deal, no deal or a second referendum. This article seeks to compare these two instances of governments being essentially unable to govern and reach a clear outcome on vital policy matters. In particular what do these two examples tell us about the conflict of sovereignties and where does the buck (of power) stop?

So how did we get to this pair of deadlocks? In short the reasons are remarkably similar on both sides of the Atlantic. In theory, the constitution (essentially the rulebook of politics and government) in each country should be capable of sorting out the problem. If the referee following the rulebook, calls handball then it’s handball, resulting in a a yellow card or a disallowed goal etc. Ah, if only everything was so simple. The problem in each country is that the respective constitutions were not designed to deal with these scenarios.

In the US, the Constitution itself is sovereign. The problem is, the framers of the constitution in 1787 deliberately set out to write rules for a political game that dispersed not fused power. In theory this was to promote collaboration and compromise. Thus, Congress (parliament) makes the laws and sets the national budget but the President must agree, if he doesn’t – no budget and the current situation of a partial government shutdown. Similarly, the President is the head of government and is expected to exercise leadership and implement policies, but Congress holds the ‘power of the purse’ and must approve spending. As both are elected by the people (albeit indirectly in the case of the President) both can claim a legitimate democratic mandate. The people therefore spoke when they voted in Trump and also Congress. The trouble was they were bilingual; they spoke Republican in 2016 and put Trump in the White House, and spoke Democrat in 2018 when they voted for members of the House – just to complicate things further, they allowed the Republicans to retain and indeed increase their control of the Senate but let’s not swell too much on that. So, when the people speak in different political tongues, are we surprised it ends up a mess. ? The US at least has form on government shutdowns, 21 days in 1995-96 and 16 days in 2016 to name but a couple.

The United Kingdom by contrast prides itself on a ‘strong and stable’ constitution; we elect MPs, MPs belong to disciplined parties, the biggest party runs the government and its leader becomes Prime Minister. No powerful second chamber here to frustrate the will of the Commons, no directly elected head of government to claim a rival mandate, and a figurehead head of state whose figurehead appears on stamps, and whose husband might perhaps suit a cameo role in Top Gear, or perhaps The Grand Tour might be better with its regal overtones and Clarkson hosting. Even the testing early days of a hung Parliament following the inconclusive 2010 election turned out fine. Compromise prevailed, via the Coalition Agreement and Cabinet posts for five lucky Lib Dems. Five stable years of dual party government, with nothing to see of constitutional interest other than a damp squib of a referendum in 2011 on changing the voting system to the Alternative Vote where we the people obligingly voted to keep the status quo. The British concept of parliamentary sovereignty reigned supreme. What Parliament wants, Parliament gets, well the ruling party/parties do anyhow. Then it all went wrong. The people in their audacity voted in 2016 against the wishes of their political masters and establishment lords. Misled by Brexit lies and a £350 million magic money tree/courageously determined to free us from the shackles of Brussels and the metropolitan elites (please insert own interpretation here according to preference), we voted 52%/48% to leave the EU. This was the sovereignty of the people, direct and online, and distinctly off message. Who governs and whose will prevails? Our representatives in Parliament (MPs) who are roughly two thirds Remain, or the people consulted directly? Legally and constitutionally, it remains the former, but morally in a democracy do not the electorate prevail on this matter? Add in the little matter that the electorate voted without an indication of the option for their preferred choice of Brexit settlement (press 1 for no deal, press 2 for a deal that means I can easily take my pet on holiday with me to EU countries, press 3 for indifference etc), and you have the makings of a true constitutional crisis. 

In essence, the British Constitution is not designed for the public to have the final say on specific issues, or if they are, it is merely to approve what our elected political masters have already deemed best. Thus the 1975 referendum on continued membership of what was then the EEC (European Economic Community) was essentially along the lines of ‘we’ve already joined and trust you are happy with that.’ More tricky, was the 2014 referendum on Scottish independence which had the potential to backfire, but in the end reassuringly resulted in an acceptance once again of the status quo, and doubtless lulled then PM David Cameron into a false sense of security into the conservative outcome of referendums, conservative that is in the sense of retaining the status quo. He was wrong, about as wrong as Theresa May was that the electorate would return her with an enhanced majority at the 2017 election.

So, both countries have reached an impasse. Tens of thousands of federal employees in the US are either laid off or working for no pay if they are in crucial roles such as air traffic control where their pay will be backdated. In the UK, Brexit is staring into the abyss that is the 29th March. In part this is explained by the frailties in our respective constitutions now laid bare: the separation of powers in the US, and the clash of sovereignties (parliament v the people) in the UK. But the causes go beyond that. Both debates symbolise genuine and profound divides in our societies. For Trump supporters (of whom there are many in the US) the impasse over the wall represents all that is worse about the ‘Washington swamp’ – Democrats and liberals (and the terms are largely synonymous nowadays) prepared to play every trick in the rule book to thwart a publically stated policy of the popularly elected president. Whatever you might think about Trump, he is simply doing his best to carry out what he promised; ‘Build that wall’ was a genuine and sincere rallying cry. Not to build it puts DJT into the same class as all the other snake oil salesmen/politicians who say one thing to get elected, and once in office quietly drop the policy. For a man known for policy and party shifts over the years and who has a complex relationship with consistent truths, this wall matters! For Democrats on the other hand, the wall is the antithesis of their liberal ideology. Erecting barriers not promoting inclusivity, racist ‘dog whistle’ politics of the most vulgar type. Plus, they despise Trump in a way that makes their views on George W Bush and Vice President Dick Cheney look positively benign by comparison. They like Remainers are sore losers, and liberals are the worst sore losers of all. How can the majority of people be so stupid? By contrast, when the right loses, it is normally ‘electoral fraud’ that gets the blame, in the US at least. The wrong people voted and voted too often.…

When we consider Brexit, the stakes are equally high and compromise equally problematic. For liberals/Remainers the people again ‘know not what they do’. Brexit is reactionary, exclusive and fundamentally damaging to our outward looking global persona and economic wellbeing.  Line up experts and/or celebrities and explain patiently to the great British public that they might want to reflect on their actions and to make a better choice next time – you know it makes sense. Viewers’ votes might work for BGT but not for weighty constitutional affairs, oh no!  For Brexiteers, the fight is also about national identity, the soul of the nation, and the chance to make world class trade deals across the globe. To say nothing of £39 billion going into EU coffers each day. The EU represents a threat to British identity and sovereignty, to say nothing about the gap in our wall over immigration from other EU states. The United States of Europe looms ever closer, time to pull up the drawbridge and say enough is enough before launching out into the ocean of global opportunities again. For the right in the US, the wall is all about preserving the sustainability and integrity of the United States of America. For Brexiteers in the UK, it is above all about preventing a federally shaped Europe.  Both deadlocks then, are about fundamental issues of national identity and control over borders and immigration in the future. It is a zero sum game. If the wall is not built and a meaningful Brexit not executed, the country is betrayed/saved (again insert preferred word).

This all leads on to the last point. Reasonable, moderate people in both countries want a compromise, everything sorted and everyone happy. A slightly better set of border securitymeasures (there is already quite a lot of wire and barriers on the US/Mexico border) or the softest of Brexits perhaps, or a second vote so we can be sure we know what we really really want. But in the US, hyper-partisanship between the parties has already gone too far to make realistic compromise possible. The stakes are too high and the risks of alienating the core support too high. Ditto in the UK. What will it profit even the lukest of Remainers (and is Corbyn really a Remainer, probably as enthusiastic as Theresa May is for Brexit?) to work with moderate Brexiteers? Tribal politics in both countries may not have mass appeal (it rarely does) but it makes the most noise and is powerful enough within each political camp to exercise an effective veto on a ‘Third Way’.

So to conclude, we can quite easily assess how each country arrived at its current gridlock and the constitutional gaps that have enabled this. What is far less clear is what the roadmap is back to constitutional normality in either America or Britain. Someone has to yield. I don’t see Trump doing that anytime soon, nor do I think that the Brexit result from 2016 will or should be sacrificed soon on the altar of political expediency. The fundamental problem is that the people have spoken but in a Babelesque way. So who should we blame? The other side (inevitably wrong, deluded and unpatriotic liars), the constitution, the media or the political establishment? Perhaps the hardest thing is to pick up a mirror. To re-work Benjamin Franklin’s famous quote about the US Constitution, ‘We have democracy, if we can keep it’. To revert back to the Shakespeare allusion in the title, nothing is ‘lovely or temperate’ about where we are today.