Over at the LPE blog, a series of contributions has advanced why legislative supremacy ought to be part of a socialist left strategy. Partly, this is a response to the growing juridification of social and political life that has buttressed the power of the courts and, particularly now, a growing deference of the courts under a nascent executive constitutionalism. Beau J. Baumann (initially spurred by a piece Sabeel Rahman wrote for Dissentand to which Rahman later responds to him and others here) convincingly argues that the American left lacks a constitutional politics — a theory of who should wield state power and on what terms. The American Right, on the other hand, has advanced and implemented a constitutional politics oriented around a radical presidentialist settlement that sidelines Congress and subordinates bureaucratic power to executive will. Baumann’s riposte is to dismantle both juristocracy and managerial presidency, in order to pursue progressive goals like industrial policy and administrative democratisation. Samuel Moyn has responded with a set of critically supportive correctives, foregrounding the extent to which juristocracy and presidentialism are perhaps more entrenched among the American left than Baumann’s claim of ‘institutional agnosticism’.  Indeed elsewhere, but relevant for this discussion, Nate Holdren has offered some general reflections on both a tendency to hastily characterise Trumpism as an entirely non-legalistic project (autocratic legalism, as Kim Scheppele writes, is ‘buried within the general phenomenon of democratic decline’), as well as how a retreat to legalism may entice parts of the American left. Welcome in these interventions is a departure from the parochial focus on judicial doctrine and a broader recognition of why structural and institutional reconfiguration ought to be part of left political imaginaries.

The following offers some reflections on a different but arguably analogous set of discussions taking place in Great Britain, which have characterised much domestic constitutional debate for some years (though less so among the organised/non-academic left): that between legal and political constitutionalism. In a nutshell, these have outlined normative or descriptive accounts (with a latent normativism) of where constitutional power lies or ought to lie under the British constitution; either with the courts or the legislature. Great Britain, of course, is anomalous in that it does not have a codified constitution nor a judicial body with Marbury-like strike down powers, but a supreme Parliament that is nominally unlimited in scope and can even (expressly) legislate contrary to rights. But Britain has certainly not been immune to the global phenomena of juridification that has ‘locked-in’ neoliberalism. Indeed, developments over the past 50 or so years have increased the power of domestic courts, including instances of ‘disapplying legislation’ (akin to an attenuated judicial strike down power). Part of what this piece will attempt to do in the construction of left constitutional imaginaries is to foreground the method of historicising our interventions on constitutional politics (much like the abovementioned authors do) as a way to preface where the left ought to build institutional power. This contrasts with a tendency to present arguments for either greater judicial, legislative, or executive power as if they were transhistorical, normative models (as I argue in a forthcoming paper, is often the case in British debates). It suggests that legislative supremacy as articulated by the left, especially in the mid-20^th century, existed during a period of mass politics, in particular trade unionism, which effectively acted as a guarantor for the post-war settlement between capital and labour. In an era of hyperpolitics however, where political energies lack an institutional outlet, legislative supremacy has taken on a different valence than it once did. We ought, therefore, to exercise caution (though not rejection) in assuming legislative supremacy would form part of a left strategy. As will become apparent, legislative supremacy as political praxis, though previously dominated by the left, has, in a different iteration, now become the mainstay of an insurrectionary Right in Britain.  

Fabian and Syndicalist Traditions of the British Left in the mid-20^th Century

In Michael Gordon and Adam Tucker’s (eds.) The New Labour Constitution: Twenty Years On, Rob Knox describes two broad categorisations of left traditions (with some overlap) in the early to mid-20^th Century: Fabianism and Syndicalism. The syndicalist tradition typically fixed its attention on the workplace, emphasising the importance of militant trade union action in transforming the basic conditions of living for working people. Productivist in bent, therefore, syndicalism was ruptural in its temperament. The Fabian tradition, by contrast, supported strong, decisive, and responsible government, arguing that existing institutions of the British state could be employed as an apparatus for social democratic ends. For Fabians, parliamentary sovereignty was the peremptory political principle which could be used to legislate broadly social democratic ends.  In his Parliament and Revolution, former British Prime Minister Ramsay MacDonald argued that parliamentarianism was ‘the will of the people embodied in an institution’, positioning it against more syndicalist traditions (what he called ‘Bolshevism’) that, he argued, reflected sectional pressures. As part of the broader political constitutional tradition then, Fabians argued for the foregrounding of legislative supremacy; but also the concurrent parsing back of the common law courts; particularly given their historic anti-labourism, captured in decisions such as the Taff Vale Railway Co v Amalgamated Society of Railway Servants in which unions could be sued for loss of earnings during strike action; or Roberts v. Hopwood where the court curtailed attempts at moderate local government distributivism. Legislative supremacy then captured much of British left-thinking, as well as prominent parts of the legal academy (including at the LSE, as Carol Harlow writes).

It’s imperative, however, that one reads this history conjuncturally or as ‘a period during which the different social, political, economic and ideological contradictions that are at work in society come together to give it a specific and distinctive shape…any serious analysis of the crisis must take into account its other ‘conditions of existence’. For example, the ideological…[d]ifferent levels of society, the economy, politics, ideology, common sense, etc, come together or ‘fuse’.’  Making sense of legislative supremacy as a left strategy of constitutional politics in the British milieu during the early and mid-20^th century requires an understanding of the balance of social forces. 

The emergence of these left traditions and their interventions on constitutional politics can only be made sense of in assessing the myriad ‘conditions of existence’ at that particular historical moment. In this era of mass politics, of which the party was the prevailing institutional form, the party offered far more than simple ideological allegiance. As Anton Jäger writes, parties as the main institutional form of mass politics provided total social immersion, cohering communities around a shared identity in which even voting functioned as collective self-affirmation rather than a private act. But they also underwrote the post-war settlement between capital and labour. The period of the early and mid-20^th century was one in which trade union membership was at record highs, where its rank and file were increasingly militant, and when industrial action could bring the country to a standstill (indeed, the threat of industrial action had serious disciplining effects on capital and the state). The unions were of such power and scale that, not only did they not want mediation by a historically property-protecting court, but collective bargaining was often where they could secure better pay, conditions and the social reproduction of the working class, what Rob Knox refers to as anti-juridical constitutionalism. 

In parallel, Parliamentary supremacy became an increasingly attractive commitment for the left in which to legislate social democratic reforms, particularly as enfranchisement grew, a nascent party of the trade unions would emerge in Parliament (first as the Labour Representation Committee, then the Labour Party where interests generally, though not always, converged with trade unions) and an historic shift of legislative power took place emboldening the comparatively more democratic House of Commons through the Parliament Acts1911 and 1949 (removing the vetoing power of the land-owning inhabited House of Lords; see another forthcoming paper on the class-based nature of these reforms). 

Unlike in other parts of the world, then, which had established constitutional rights-based guarantees for workers which would be administered by the courts, in Great Britain, such social goods were secured through collective bargaining agreements and statutes (through what was effectively then the trade unions lobby group, the Labour Party); and thus all outside the jurisdiction of the courts. Indeed, this captured a then common-sense enmity that the left and the Labour Party had toward court-based adjudicated rights. 

The Judicial Power Project

However, legislative supremacy (contained within the tradition of political constitutionalism) now appears to have been captured by both traditional and newer, more insurrectionary right-wing forces. The Judicial Power Project (JPP), an initiative set up by the hugely influential Policy Exchange think tank, examines the ‘proper scope of judicial power within the constitution’ to identify instances of ‘judicial overreach’ or what it understands as the excessive exercise of judicial lawmaking power. Arguing that unelected judges have accrued too much power, it seeks to push back against what it sees as an expanding judicial role in political life. Much of what may be called the right-wing crits appears to resonate with left critiques of juridification, both past and present. However, the JPP has been fiercely critical of expanding court jurisdiction in human rights litigation, including of migrants, trafficked British children to Syria, as well as victims of abuse by British armed forces. Further, there is an argument that this particular iteration of legislative supremacy is actually more concerned with shoring up executive power, and a recent weakening of safeguards certainly appears to suggest that. 

If one were to be charitable and accept that the JPP were arguing for legislative supremacy, what was previously the mainstay of the British left has now become the axiom of the right in Britain. Though a residual left-political constitutionalism does remain (indeed, JPP did publish a set of essays on this very topic) which argues for legislative supremacy, it does so more for reasons that judicial power encases neoliberal doctrine and defenestrates Parliaments. But there is perhaps something of a blind spot in those left interventions, which may be a result, one could argue, of an absence of conjunctural analysis. The same historical conditions of the early and mid-20^th century do not obtain today. Returning to Jäger, we are arguably now in an era of hyperpolitics in which, though the intensification and scope of politicisation have broadened, it lacks an institutional form in which to capture those energies. Instead, mass outrage ebbs and flows with little permanency. 

Part of the reason why legislative supremacy was foregrounded by a sizeable cohort of the British left then was the power and scale of the labour movement in an era of mass politics. Indeed, because of them, a consensus had developed across civil society and indeed the political spectrum (from new liberalism to one nation conservatism) in which legislating for welfare provisions and nationalised industries was the new common sense. Parallel to this, the parsing back of judicial power and an aversion to minimum-level social and economic rights were, in part, because workers were able to secure these social goods through collective bargaining. Indeed, it was unsurprising that the Conservative government’s attempt to introduce the National Industrial Relations Court to mediate industrial disputes in 1971 was abolished three years later. In short, it perhaps mattered less who held the reins of legislative power then because this post-war settlement was the dominant ‘structure of feeling’, underwritten by a historically new and powerful constitutional actor, the trade unions. Perhaps counter-intuitively, this had the overall effect of pacifying the growing militancy of mass trade union membership. 

In the 1980s, however, with the collapse of the post-war consensus and diminishing returns on profits, capital and the state launched a full frontal attack on labour movements, through law-and-order violence (reaching its zenith in the Miners’ Strike) as well as a series of anti-trade union legislation that, among many things, removed the power of secondary strikes and increased ballot thresholds. In short, the underwriters of the post-war constitutional arrangement, which could secure social reproduction for the country, had been decimated. In the absence of mass politics or a blossoming of the new social movements following the uprisings of 1968 that identified other sites of struggle beyond the workplace, ‘rights’ and the courts became the last utopia of the left. As courts slowly offered meagre concessions to parts of a multi-racial and migrant working class, its legitimacy incensed a newly emergent right (and quietest left). It is in this context that we can make sense of the fact that it was a Conservative government and an insurgent Reform party (and its earlier instantiations) which would foreground national (read as legislative) sovereignty as a key battle cry, while the Corbyn project found itself in the unusual position of defending the court during the Prorogation of Parliament litigation. 

Conjunctural interventions

The focus of this piece is less on whether legislative supremacy is either foundationally a constitutional politics of the left or right, nor is it suggesting that authors elsewhere have made their interventions ahistorically. Instead, it seeks to foreground how conjunctural analysis enriches the interventions the left makes on constitutional politics, not merely as policy prescriptions, but also not just as institutional reforms. It seeks to advance a method of how we construct our imaginaries that assesses the balance of social forces, the specific historical moment through which social, political, economic, and ideological contradictions are articulated, and how they condense to create a distinct, crisis-prone shape or conjuncture. Particularly in an era of hyperpolitics, such interventions should not be limited to where we might want to allocate the primary power of the state among the three branches. What political form would underwrite a normative project of left constitutional politics? Would it be mass politics? Indeed, can it be?  rmative project of left constitutional politics? Would it be mass politics? Indeed, can it be?