Writing in his masterpiece Democracy in America, the great social commentator Alexis de Tocqueville acknowledged that the Senate was a particular adornment to the US Constitution: “The Senate contains within a small space a large proportion of the celebrated men of America ... eloquent advocates, distinguished generals, wise magistrates, and statesmen of note, whose arguments would do honour to the most remarkable parliamentary debates of Europe.”
How wise it was, then, of the American founding fathers to insist on direct election to the Senate. Except that they didn’t.
Those now advocating a directly elected House of Lords might like to take note. The modern US Senate has many good members, but it falls a long way short of de Tocqueville’s admiring description from the 1830s. And the American political system as a whole is manifestly struggling: beset by gridlock, vulnerable to powerful special interests from the gun lobby to the American Association of Retired People, its politicians elected by corporate lobbyists recently liberated by the Supreme Court from any spending constraints under the First Amendment.
But the deeper problem is that we appear to have lost a public understanding of our own British constitution. The result over the past 40 years has been a succession of one-off measures that have changed the constitution profoundly.
They include the European Communities Act 1972 and its successors; the Human Rights Act 1998; legislation on the devolved assemblies; and House of Lords reform. People may disagree over the merits of these measures. What they cannot dispute is that they have had profound and unintended consequences — European political union, anyone? — and that there has been no collective conception of the national interest lying behind them.
Instead, we have bought our constitutional ideas off the shelf, specifically from the USA. Every one of these measures has pushed us towards a more American constitutional model. Our unified polity has yielded to a more federal structure through partial devolution; our national sovereignty has been pooled within a federal Europe; substantive protections from the English common law have been replaced by a Bill of Rights in the Human Rights Act; the use of judicial review has risen sharply. Legislation to replace the Lords with a directly elected Senate is just the latest example.
But there is no single recipe for democracy, and the US Constitution and our own are in many ways quite distinct. The US Constitution is an attempt to exercise sovereign power over a massively extended republic. Its framers were students of British history and law, especially the lessons of the Glorious Revolution in 1688, which established a constitutional monarchy in Britain. But those students had just emerged from a protracted war against what they saw as a tyrannical monarchy, and were therefore intensely suspicious of centralised power.
Guided above all by James Madison, their solution was to diffuse power across the branches of government and across the federal system itself, imprisoning it within a system of legal and electoral checks and balances. The result, as John Adams put it, would be “a government of laws, not of men”, without a single powerful overlord or group in charge. Even the US presidency, despite its enormous personal mandate, is a relatively weak office as regards domestic policy. It is little wonder, then, that many Presidents have been so active in foreign affairs.
The British constitution, however, springs from the opposite motivation. It reflects a willingness, sanctified by custom and practice, to tolerate centralised power, provided that power is exercised in a properly accountable way. It does not fetishise the legitimacy conferred by the ballot box, but acknowledges and draws on other sources of legitimacy as well, whether conferred by due process, by tradition, by embedded standards or by public disclosure.
We do not elect our ministers, our judges or our sovereign. But we expect them to behave in a suitable way, and we demand that their public actions and decisions be appropriately subject to scrutiny. The result has been a system that allows the government to exercise enormous power very flexibly, and with a high degree of personal accountability.
Politics in Britain, for all its Levesonesque flaws, is far cleaner and more effective than in America. In the UK, the Prime Minister is responsible for public policy; in the United States, no one is.
It is, then, nonsense to suggest that merely by aping more aspects of the US Constitution, we will improve our own democracy. On the contrary, we will undermine it. To take the issue at hand, of course there are reforms to be made to the House of Lords: for example, reducing the numbers, removing “the mad and the bad”, beefing up scrutiny and enhancing the Appointments Committee. All these can be achieved without election, which would seriously damage our constitution.
The key point was made best by Edmund Burke, in his Reflections on the Revolution in France: “We are afraid to put men to live and trade each on his own private stock of reason; because we suspect that this stock in each man is small, and that the individuals would do better to avail themselves of the general bank and capital of nations, and of ages.”
The British constitution is that intellectual capital. Let’s start using it.
[This article first appeared in The Times]