LONDON – Barbara Tuchman published her masterpiece, “The March of Folly,” in 1984. It explored what the American writer and historian called “one of the most compelling paradoxes of history: the pursuit by governments of policies contrary to their own interests.” Today she might have explored the march of folly by “the people” as well as governments in pursuing those harmful policies.
In the United States, the checks and balances included by the Founding Fathers in the constitution to protect against despotism did not prevent the voters and the Electoral College from choosing as their president and commander-in-chief a shameless demagogue boasting of his contempt for the constitutional principles of rule of law and the separation of powers, praising Russian President Vladimir Putin to beat Hillary Clinton — the same Putin that U.S. intelligence agencies blame for cyberattacks on her private email to damage her candidacy.
In the United Kingdom, a foolishly devised referendum on whether to remain in the European Union has split the nation and its political parties. It has split south from north, haves and have-nots, and has encouraged Celtic separatism in Scotland and Northern Ireland. Under Prime Minister Theresa May, a weak and divided government is pursuing policies contrary to the interests of its citizens. British influence in Europe has drained away. The U.K. is disunited, its economy is shrinking and investment is moving abroad.
In mainland Europe populist revolts, fueled by mass migration, public insecurity, Islamist terrorism, racism and xenophobia, further threaten the future of the European Union. Its member states are unable to muster support for a common strategy to reform its dysfunctional institutions. These anti-elitist uprisings undermine respect for human rights, democracy and the rule of law.
What happened in the U.S. election last November reminds us that a written constitution is no panacea. It must be buttressed by a culture of respect and it must be interpreted and applied wisely by politicians and the courts.
The justices of the U.S. Supreme Court are chosen on political grounds and are deeply divided. The conservative majority on the court pays no heed to international law. Its judgments have little influence abroad. The court’s Citizens United ruling on campaign finance enables the rich and powerful to dominate federal elections in the name of free expression. It permits states to operate election procedures to obstruct the voting rights of black Americans. With one seat on the bench already vacant and three justices aged over 75, it seems likely that President Donald Trump eventually will be able to appoint several younger new judges, justices who will entrench that ideology for decades.
I used to regard the U.S. Constitution as a model for the free world. Sadly, I no longer do so.
The U.K.’s system is different: parliamentary not presidential. It has a politically independent judiciary appointed on merit, enlightened in its interpretation of the unwritten British constitution, and protecting minorities against the tyranny of majorities. But as in the U.S., its constitutional safeguards are fragile. When the High Court ruled that ministers had to obtain Parliament’s consent before triggering the process of exiting from the European Union, the Daily Telegraph attacked the judges as “enemies of the people,” and the Lord Chancellor failed to perform her duty of upholding judicial independence by warning her fellow ministers and the press against undermining the rule of law.
The U.K. Supreme Court will give judgment this month on whether May’s government must involve Parliament in the Brexit process. The government claims that its ancient Royal Prerogative power to make and unmake treaties enables it to act without the authority of legislation — an act of Parliament. That is a surprising assertion from politicians who claim that leaving the EU will restore parliamentary sovereignty. The Supreme Court is likely to reject that claim and to uphold Parliament’s supremacy, at which point the justices will face further intemperate attacks from Brexiteers.
May’s government has chosen to treat the result of the referendum as binding. She drapes herself in the Union Jack, explaining that she wants a “red, white and blue” Brexit. She discounts the views of the millions who voted to remain in the EU and comes close to accusing those who disagree with her of a lack of patriotism. She insists that the government’s negotiating strategy must remain hidden from Parliament, but has reluctantly agreed to share a little of the government’s plan. Meanwhile, she is determined to march on, chanting her mantra “Brexit means Brexit.”
Many of those who voted to leave the EU did so in the belief that the U.K. would curb immigration by ending the EU right to the free movement of workers and their families. But the U.K. will not be allowed to end freedom of movement from the EU while retaining access to the single market — to have its cake and eat it.
For 40 years, European law has applied in the U.K. to the benefit of the British people. It has protected their rights as men and women and as European citizens. EU law has been woven into the fabric of U.K. law. The supremacy of EU law as interpreted by the European Court of Justice is the focus of passionate hostility from insular “Little Englanders” — nationalists who believe the English are better without the Scots or the Irish.
The process of weeding EU law from U.K. law will be complex and lengthy, resulting in decades of uncertainty. It will put at risk the position of British citizens in the EU and European citizens in the U.K. That was not understood or explained during the referendum campaign. It may be beyond the capacity of May’s government to do so, just as the process of leaving the EU may founder or be reversed.
Hope dies last. I still hope that at least the British march of folly will be turned back when those who voted to leave the EU realize what is at stake. But neither that, nor an end to America’s march of folly, will happen soon.
Lord Lester of Herne Hill QC is a Liberal Democrat member of the House of Lords and a barrister who practices constitutional and human rights law.
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