The Burkean Dilemma – and The Need for Constitutional Vandalism
Cast your mind back to your infantile beginnings on the internet – do you remember when a mix of teenage dissent and good taste brought you upon hours and hours of Peter Hitchens clips? The talking points remain engraved in my brain at least. Scorning Elizabeth Truss for being a Liberal Democrat, lamenting the decline, smugly enjoying being the most right-wing man in the room; these old YouTube clips are foundational for many of us. It is through this canon that many reading, I’m sure, found themselves on the Right. Thereby the ideology of Hitchens and the most searing of his convictions have necessarily branded our convictions – and made sour many aspects of reformation.
Ironically, the Burkean is a Tory in its most visceral, honest conception. There is no mistaking the conservatism of this sort, it conserves – it is the noun made verb with very little impurities included. You know the lines, ask why the fence is there before you knock it down. You know the policies, maintain the Lords, maintain the Monarchy, maintain above all; the Constitution.
The Constitution of England is a truly beautiful phenomena; it is our unique testament unto this world. No other people over millennia could produce such a sprawling web of good governance and sound law. Furthermore, the fact it was never sat down and written, but came forth from our historical experiences over a thousand years further adds to its splendour. Through the test of time, it has not only secured this nation but irrigated the unique liberties afforded within it.
It is the Constitution, and adoration for it, that makes a Tory. These sentiments are in-born, and felt from a young age before one has even been acquainted with the exacts of the Constitution. Hence, Enoch Powell as a young boy would take off his cap entering the chamber wherein the first Prince of Wales was born. Such a thing is but second nature to an inherently Tory character, it is an inseparable feature of their character to revere what has come before them – thereby their politics becomes a ritual of removing one’s cap and bowing.
It is natural then that not just a principled opposition but a genuine disgust is exhibited when the foundations of our governance and law are tinkered with. It is felt that to damage the beams built over thousands of years that have maintained Britain’s Constitution is to risk a cave falling in on itself, and a millennia’s effort being destroyed in the process. Therein, the Tory is daunted to even mutter the name Blair.
Removing privileges of the Lords and creating an American-style Supreme Court would likely have been enough to make Enoch Powell croak ten times over – and to this day continues to drive Peter Hitchens into the ground, and it’s clear to see why. The whole Blairite infrastructure continues to allow the spectre of New Labour to linger endlessly. Almost any attempt to combat mass immigration is smashed by some grotesque machination of an early 2000s civil servant.
We have been shown time and time again that the subversive elements of our political class have no regard for these ancient precepts. It is no vice to bend the very structure of this nation in order to inject Liberalism through it. It is for this reason, that we on the Right find ourselves within a Burkean dilemma.
Our base instincts warn us against any constitutional reform. Whether we even express this fact outwardly, this feeling that what has worked for millennia should not be fiddled with is, as mentioned, a petit-pathology of ours. However, if we are to combat a force willing to bend these rules, then we doom ourselves if we do not adapt to this landscape. There is no virtue in taking off our caps to a nation in flames, safe in the knowledge that it was the good timber set alight.
The Blair Cabal was willing to entrench a vapid, corrosive anarcho-tyranny within the fabric of this country, and Starmer will only bolster it as he takes up the torch. On these matters, we must unfortunately get our hands dirty.
Let us use the debate regarding first-past-the-post as an example. Our nature appreciates this institution, it works reasonably well and has done since we thought voting would be a jolly good idea. However, as the Tories and Labour are both infected with the corrosive modernity of our day – what good is the thing? Reform, despite their best efforts, poll in some indications third in terms of vote share, yet are projected to gain not a single seat. The classic UKIP effect, a deliberate design of our voting system to ensure that radical sorts and ruffians can’t steer us on a path of destruction whenever a good demagogue comes about. This is a sound principle . . . when England was a nation of civil, well-mannered people. Hitchens reminds us – ‘there is an inch between Labour and the Conservatives, but it is within that inch we all live.’ This principle rings true when the key debates of a society concern marginal tax rates and the exacts of social spending. It rings a tone of death for a nation embroiled in the debates of our day.
This constitution of ours is unique to us. It could not have come about among any other people, no other nation has matched our wonderful system of civil existence, and those that came close certainly did not happen upon it as we did. The English Constitution is nothing without the Englishman, thereby if the Englishman be doomed then so be his systems of governance and law.
If we can determine that the threats that face us are existential, then the truth of the matter is we must bite the bullet and do away with some of these constitutional features. What good is maintaining first-past-the-post if we are to be a minority within our own homeland by the middle of this century? Why would some among us sooner see the passing of the Englishman than the reformation of what he has produced?
It is the nature of our folk that produced these things; if we lose our nation we lose everything. If some of our dearest institutions must be cleared out it is a price worth paying for our survival. If a fence in the forest impedes us, we have no time to consult a passerby on the reason for its presence when behind us a bear looms.
The Burkean dilemma is this – the Constitution or England. First-past-the-post or our survival. The House of Lords or English children with a future to look forward to?
Labour’s Plans for Constitutional Reform
First principles
We need to begin by understanding what a constitution is and what it ought to do. The history of the constitution as a political idea is one in which a single term came to be associated with the twin principles of the “spirit” of the people over whom politics is exercised, and the “health” of the body politic from whom the government is drawn.
It is no coincidence that the word “constitution” emerged in politics to refer to the central laws (written or otherwise) that govern a community, during a period of increased use in the medical community to mean “health”.
A simple Ngram chart shows that, whilst “medicine” and “constitution” have an established history of coterminous use, from the mid-1720s onwards – a time of increasing popularity of focusing on constitutions in the modern sense as a written set of basic rules upon which all laws should be based – the use of constitution skyrockets.
Carl Schmitt wrote in the 1920s that a constitution ought to be a reflection of the people, as they exist simultaneously above and below the political order that seeks to represent them in the world. Above, because like Hobbes’ Leviathan they tower over all political figures in judgement; below, because they are the very foundation upon which all political institutions can be built. If a people ceases to exist, then the institutions become hollow machines turning and maintaining themselves for nobody but themselves. And it must be remembered that institutions, as all things incorporated in some way, become entities in themselves.
A constitution is, therefore, simultaneously the spirit and mind of the people. The spirit, because it captures what Montesquieu attempted to identify in L’Esprit de Loi, the spirit of the laws; the truth that there is something intangible behind the tangible laws by which political institutions operate. In other words, rather than analysing the laws that existed, Montesquieu asked why those laws existed, rather than some other set of laws, in the political community in which they were practised. Why did the English have the common law, when the French had parlements? Etc.
The mind, because the constitution moves beyond unthinking instinct and into the strategic realm of forward thinking, extended temporal existence and predictable security. As Montesquieu feared of tyranny, and as Hegel recognised of Spirit in Man’s infancy, when the law becomes the domain of a single person, fear is the spirit of the legal order because there is no predictability, no consistency. Arbitrariness becomes the basis of decision making. It was not fear as fear of the government itself, but fear of the inability to know what the consequences from the government might be.
A constitution, then, speaks the unspoken sentiments of a people and does so in a consistent and unifying way.
The question that arose in the enlightenment over whether this speaking constitution should move to the page and transform from an unwritten to a written document was, of course, central to what Yuval Levin called the great debate between Edmund Burke and Thomas Paine. Whilst Paine railed against what he saw as the “tyranny of the dead” when Burke defended tradition and custom, Burke gently replied that it is the very dialogue that thrives between the living and the dead that produces freedom; just as a traveller in a forest might wander from the beaten path and find a lush grove, so too might he get lost in a swamp. Innovation and the freedom that experience brings with it is possible only when there is a point from which you begin.
Instead, said Burke, it was that very tyranny – of a dead set of people from a particular moment in time – that would be cemented in a written constitution. Rather than allowing for the continual expression and interrogation of custom and tradition that comes with an unwritten constitution, a codified one would narrow the temporal horizon of a people into a strict moment in time in an attempt to speak forever. Some of the American Framers argued that a way around this would be to revise the constitution at the end of every generation – roughly 19 years or so. Sir Roger Scruton put the problem very (and typically) eloquently when he said that the Treaty of Rome was written in a year that’s gone for a circumstance that has passed by a group of people that are dead.
The two great constitutions that emerged in the late-1700s – in America and in France – had two very different goals that determined the direction in which they moved. America, said the political historian Hannah Arendt, framed a constitution on a set of institutions that already existed expressing a people that already had a heritage. For that reason, the American constitution can be said to have achieved those two goals around which this briefing note has thus far revolved: the expression of the spirit and mind of a people. France, on the other hand, attempted to create a people through the act of constitution: the Bretons, the Provencals, the Roussillions, the Orleanais, all were to be washed away and the remnants dissolved in the universal humanity of la France. The French constitution preceded a people; the American constitution expressed one.
Yet the constitution that has thrived where even the American one has failed has – or had – been the British one.
In their obsession with formalism and written rules, most psephologists have made the mistake of thinking that Britain’s constitution, uncodified though it is, can be found in the many documents that stretch from Magna Carta through the Bill of Rights to the Act of Union to the Great Reform Acts to the Parliament Acts to the Human Rights Act. No – to do so is to mistake a man’s words for the man himself. These are not Britain’s constitution, but the consequences (and in many places, the mutilation) of the constitution itself.
What is Britain’s constitution?
It is the Parliament itself.
Parliament, in the synecdochal slip of the tongue common in modern politics, is not the House of Commons, nor the House of Lords. Not even is it the building in which those assemblies meet. Parliament, as understood by Bagehot, Dicey, Maitland and all the eulogists of Britain, exists when the three traditional branches of British government are assembled in one place: the Monarch; the Lords; and the Commons. Hence, the momentous occasion when the Monarch delivers his speech to the Lords and Commons, Parliament is said to be together.
But why is Parliament Britain’s constitution? Because, properly understood, Parliament is the voice of people in all of its aspects. The Monarch is the people embodied, a singular head of state who gives to the constitution the only missing ingredient from spirit and mind – a body. He is the body of the politic. The Lords are the people as understood by Burke, as a transtemporal entity who speaks for the country as a physical entity – hence why it was tied to land – and a spiritual entity – hence the Lords Spiritual – and a legal entity – hence the Law Lords. The Commons, finally, are the people as understood by Paine, as the vocal element of the constitution, demanding changes in the moment and transient in its demands.
The British Parliament is, and always has been, the constitution. The doctrine of Parliamentary sovereignty reflected this fact, that no power exists above Parliament – as the Monarch, Lords and Commons in one.
Labour’s constitutional reforms: past and present
This was undone entirely by New Labour. The greatest acts of constitutional vandalism – the creation of the Supreme Court, the Human Rights Act, the project of devolution, the reforms to the House of Lords – all committed by the forebears of the current administration upended this balance in a way none but constitutional historians loyal to the idea of Britain could have predicted.
Each of these deserves an invective all their own, but the simple fact is that each of these altered the operation of Britain’s constitution in different ways, but creating a legalistic straightjacket around Parliament: the Supreme Court subverted the doctrine of parliamentary sovereignty; the Human Rights Act made that Supreme Court loyal to a power beyond the boundaries and popular
control of Britain; devolution created parallel laws applying to the same citizens at different times and in different places across the country; and the neutering of the hereditary aristocracy resulted in an upper chamber dedicated to ambition, avarice and cronyism.
Thus the supreme entity of this nation – Parliament – has ceased to act as a unitary government and now must act as one amongst many. And by extension – and by design – the constitution has died.
This is the scene into which the new administration enters, ready to finish the job through solutions to a problem of its own making. One of the greatest architects of this situation, Gordon Brown, penned a document aimed at creating a “Reformed United Kingdom” by empowering the different regions of the United Kingdom to be competitors to the central government in Westminster, whilst the absurd phrase of “devolution deserts” now seeks to spread the insanity of an unequal legal landscape across the whole map of the British Isles.
These plans will make a legal reality the idea that Westminster is the English parliament and merely one amongst many. When Brown began his document by stating that “the crisis we face in Britain is not just short-term – it is deep-seated”, he did so without a hint of irony.
Why?
The reader might be left thinking, why? Why did New Labour do all of this, and why does Labour now seek to carry us further down this road?
By design or not, the New Labour government destroyed the constitution of this country because it blew apart the unity needed to underpin the idea of a people. Alongside the administrative vandalism of devolution – which exacerbated the delusions that the Scots and the Welsh, whilst culturally different to the English, are not legally the same nor subjects of the same crown – the surrendering of the nations courts’ abilities to mediate between its citizens to a foreign power only made worse the emerging sense of dual loyalty that was gestating in an increasingly multicultural Britain. The amazement that integration has ceased in Britain whilst the legal tradition of this country has been hollowed out has never yet joined the dots to arrive at the simple conclusion that integration is impossible in the current administrative state masquerading as a constitution.
Yet this is not the only reason Labour now pursues these goals. Indeed, it does so because it must. We have moved from circumstances in which a constitution might have been written to express a people that already existed – indeed, the people, understood properly as a transtemporal entity, never old or dying nor young or being born, that has occupied these islands for centuries – to circumstances in which a constitution must be written to summon a people into being.
We are France at the height of the revolution. The idea of Britain is being re-written, and re-constituted, because Britain has died. The elegists – Scruton in his England, an Elegy; Hitchens, in his The Abolition of Britain; and Murray, in his Strange Death of Europe – mourned a people that has passed away. Labour must now begin the process of constructing a new one, based on “values” and “identity”. And it must do so because it began this process 25 years ago.
Photo Credit.