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Why the US and UK are Both in Constitutional Crisis, Each in its Own Way

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Despite both countries identifying as democracies, the US and UK have significantly different constitutional systems. Most Americans understand their constitutional system as having established their independence from the tyranny of 'mad' King George (Click Here). However, a good 60 years before the US declaration of independence in 1776, the UK had established itself as a constitutional monarchy. From the 1706-7 Treaty and Acts of Union (Click Here), the monarch had been effectively reduced to a ceremonial role and the parliament, or popular legislative body, rendered 'sovereign' or 'supreme.'

This quick dip into the histories of their respective founding helps focus the real differences between the two countries. By contrast with the UK Parliament, the US Congress is neither sovereign nor supreme, its power 'co-equally' divided between Executive and Judicial branches. For instance, the elected US President has the powers to issue executive orders or veto to sign congressional bills, preventing their passage into law. These are powers denied the merely ceremonial UK monarch. Likewise, the US Supreme Court has substantial powers of judicial review, ultimately deciding what is the supreme law of the land. Unbeknownst to most Americans, the UK did not even have a Supreme Court until 2009, and its powers of review are considerably more limited, leaving parliament supreme in legislative matters.

In sum, the UK constitutional system substantially repudiates any US-style separation of powers. 'So what?' you might ask. What difference does it make in practice when the two system go into crisis? The US is clearly in a crisis of sorts. Not only did the last President attempt a self-coup (Click Here), but also a Supreme Court, 'stacked' by this disgruntled elected head of state, has now issued rulings on abortion and gun rights fundamentally at odds with majority public opinion (Click Here). Meanwhile, the Congress would appear to have descended into legislative gridlock and the fetishism of deranged conspiratorial thinking (Click Here).

From the UK's perspective, a powerless constitutional monarch, along with a sovereign parliament 'unchecked' by competing bodies, might seem the better constitutional system. There's no threat of self-coup from a powerless constitutional monarch, and what would be the point anyway if the job - performing tedious ceremonial duties - is inherited for life. As for the UK's relatively new Supreme Court, not only are the powers of its justices more restrictive than their US counterparts; they also have term limits, being required to retire at 75. Moreover, justices can be removed on the address of parliament (http://supremecourt.uk/). Consequently, they are less able, and less willing, to rule against majority public opinion.

Does UK's sovereign parliament do any better in a crisis? Here we should remember the UK is still recovering from Brexit. Parliamentary gridlock over 'leave or remain' necessitated an extra-parliamentary measure: a people's referendum. Bypassing parliament, the Brexit referendum not only violated the hallowed principle of parliamentary sovereignty. It also produced the most extraordinary mass google search from the British people, once the votes were in - 'What is the EU?' (Click Here). Whether to leave or remain in the EU was decided on the basis of plebiscitary ignorance of what the question was about. Resorting to an extra-parliamentary measure to overcome systemic inertia, the UK very nearly tore itself apart, just as the US is currently tearing itself apart over abortion and guns.

The constitutional systems of both US and UK currently appear to be in crisis, each in its own way. Might the two systems learn from one another? The US might learn that 'checking and balancing' may entail reducing the powers of both an overweening presidency and a stacked, electorally unaccountable Supreme Court. The present congressional January 6 hearings are clearly an attempt by the legislature to prevent Presidential self-coup becoming the play-book for future would-be tyrants. However, little can be done about judicial tyranny without fundamentally reforming the Supreme Court, at a minimum imposing term limits on the justices or expanding the Court (Click Here).

It is, however, unclear what the UK might learn from its constitutional crisis by comparison with the US. After all, recourse to a referendum was not a problem of 'unchecked' legislative tyranny. The UK's purportedly sovereign parliament simply passed the buck onto the British public, effectively dodging its electorally mandated deliberative and decision-making responsibilities. That said, a frequent criticism of the 'checked and balanced' US Congress is that it too favors 'passing the buck' on its constitutional responsibilities, not to the American people via referenda, but rather unelected justices or an increasingly imperial presidency (Click Here).

Although emerging from very different constitutional arrangements, the crises of US and UK are both ultimately crises of the legislature. Whether embedded in a scheme of divided powers or supreme and sovereign, only popularly elected legislatures rather than courts, heads of state - or, for that matter, referenda or plebiscite - may ultimately express legitimate majority opinion. If the US is to resolve its current crisis, then divisive questions of abortion and gun rights must be settled through federal congressional legislation rather than by returning to the Supreme Court or relying on a presidential executive order (Click Here).

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Michael Allen is a professor of philosophy at East Tennessee State University. He has published extensively on various topics in political philosophy

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