Constitutional Orders

Constitutional Actions: The New Localism, Part III

This is the third of three entries concerning localism. In my previous entries (here and here), I examined issues of the meaning of local and localism in Britain and issues of institutions  and the movement of power away from government and towards “the people.” In this post, I will consider some implications and consequences of varieties of localism.

In general, “localism” fits in as a constitutional discourse and set of practices that shape the distribution and exercise of political, economic, and social power and agency. An important dimension of this is the design and delivery of public services, including health and social services, education, sanitation, and so on. Local government has evolved over a very long period of time, and the origins of what we have come to call local government can be traced to the era prior to the emergence of the modern state: to the provision for basic needs, such as bridges, roads and turnpikes; to the need to facilitate markets and mind hedges; to the scrutiny of bakers, and early modes of taxation. Local prerogative in earlier centuries was exercised by local officials, but as central government consolidated its power and developed its coherence, it gradually began to take up control and reconfigure the structures of authority and domination.

The appropriation of local prerogative by the center was more or less achieved de jure by 1801; by the Victorian era (1837-1901), however, a reversal of sorts was taking place, in which new structures of coherence were created to reinvigorate administrative and moral progress in local settings. Cities, for the most part, were operated by municipal corporations and (private) municipal firms, and public services were often allocated to charities for delivery. Victorian decentralization gave way to a sort of re-centralization following World War II and the development of the institutions of the “welfare state,” including, for example, National Insurance and the National Health Service.

In recent years, localism has been derided as localism run from London, an objection based in large part on the fact that virtually one hundred per cent of taxes (and allocations for expenditure) are set by Parliament (see Tony Travers’ video discussion at the University College London’s Constitution Unit here). This reality has contributed to ongoing arguments about the “over-centralization” of the British state and the need to de-centralize, to re-empower localities. These arguments have been voiced by each of the major political parties: Labour, the Liberal Democrats, and the Conservatives, and are part of a wider conceptual and practical shift from local government to local governance. This shift entails an understanding of government’s role  as “steering,” rather than “rowing,” or creating the conditions for effective and efficient quality service delivery, rather than actually providing those services through government institutions.  This shift carries important consequences and implications for constitutional order and constitutional agency.

Governance and constitutionalism come together in a number of ways. The Tony Blair and Gordon Brown Labour Governments (1997-2010) pursued aggressive decentralizing agendas. Blair’s project, as I have discussed previously (for example, here, here, and here), centered on restructuring local government and national devolution in Wales, Scotland, and Northern Ireland. The current Conservative-Liberal Democrat Coalition Government has announced and initiated similarly aggressive constitutional projects. The Coalition, with David Cameron (Conservative) as Prime Minister and Nick Clegg (Lib Dem) as Deputy Prime Minister have the Big Society and the New Localism initiatives as their centerpiece of decentralization.

One key decentralizing strategy concerns planning (for example, strategic planning, emergency planning, contingency planning, flood planning, flu planning). Planning has long been a traditional core of local governing, but with strong pressures for centralization of the prerogative. In the 1970s and 1980s, building on strategies that dated at least to the 1950s, planning was made the province of “quangos” (quasi-autonomous non governmental agencies), and part of a larger strategy of governance built on the creation of special-purpose bodies at arms’ length from elected political authority. One effect of this was the decoupling of decision-making and management of policy-making from democratic controls.

This strategy had both “horizontal” and “vertical” effects, transferring local government powers to appointed-member quangos, and altering the way that central government structures financing and the delivery of public services. Putatively designed to create efficient policy-making, “quango-ization” arguably was, at least in part, a method for circumventing partisan tensions between the center and local governments. Under the Conservative Governments of Margaret Thatcher and John Major (1979-1997), many local councils were under Labour control. Separating policy-making from Council executives while simultaneously providing quangos with substantial financial and other resources enabled central government to co-opt policy and ensure that central preferences were implemented. This had somewhat ironic political effects.

Blair sought to alter, to some extent, the quango state, opting for a re-allocation of policy-making prerogatives, including planning, through partnerships and a “modernization” agenda that required local councils to comply with London’s reforms, or find partners to assist in taking on the role of local government (see here at 20-22). Planning was integral: the ability of local communities to “decide more things for themselves” through their local councils, even though “the future of councils might not be as direct service providers” (see here at 313). This approach also effected a way of circumventing partisan tensions between local and central government, and ensuring central domination of planning and other policy-making.

The Big Society and the New Localism are built around similar notions that the state is too big, too distant from those affected by decision-making and governing action. The Coalition’s preference is for transferring functions and provision of services of all sorts to local bodies and local agents. Importantly, “the state” here should be read to include both central and local government, and so a significant part of both the Big Society and the New Localism is precisely to devolve power not (necessarily) to local government, but to extra-governmental entities: parishes, local neighborhoods and communities, local NGOs, voluntary organizations, religious organizations, charities, private companies, business improvement districts, and so on.

The Big Society and its partner New Localism connote a return to the arm’s length approach to governance and evasion of certain partisan tensions in England. Note that I write England, and not Britain: given the extent and pace of national devolution, Wales, Scotland, and Northern Ireland are continuing to develop their own approaches to devolved powers. The complex political topography of Britain for strategic planning is a key site of struggle between central and local interests, partisan interests, and the divergent interests in the devolved nations, where contests between centralization (sometimes also referred to as “nationalization”) and democratic participation are being played out. Other key struggles play out in the domains of education, health and social care, and finance, among others. Outcomes in these struggles remain to be seen.

In the final analysis, localism and its particular adjutants, including decentralization, devolution, regionalism, and varieties of special purpose agencies, must be understood as suspended in tension with the core principle of British politics, namely Parliamentary, i.e. central, sovereignty, and strong central institutions. This central – local tension characterizes much of the constitutional and legal politics in Britain. In the British context, then, shifting power from central institutions to local institutions must happen within the context of the unitary state (as distinct from, for example, a federal state), and the virtually complete historical subordination of local government to central government.

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Constitutional Typologies, Part II.A: Non-violent Actions

While thinking in terms of the constitutional lifecycle is one way to organize a a typology of constitutional actions, within each stage of that lifecycle popular forces can engage in a variety of different activities. I’ve already discussed one way to organize those different activities—categorizing them as either constitutional actions (that is, activities that are sanctioned by the constitutional system) or as acting constitutionally (that is, acting in ways that have constitutional implications but are extra-constitutional and probably illegal).

But while useful as way of thinking about the role of a particular activity in a constitutional order, that binary offers only a rough sense of the types of constitutional activities that people have engaged in throughout constitutional history. So this post is intended to provide a basic glimpse of another way of organizing those activities (I discuss these different elements in the context of US constitutional history, in a forthcoming article on popular sovereignty in the antebellum era).

Once again, we can start with two broad categories: non-violent and violent activities.

Within the realm of non-violent, popular constitutional activities, there are a range of possible actions: Some are these may be formally sanctioned by the constitution (constitutional actions, in our formulation): voting or expressing dissent (or concurrence) through the exercise of protected rights like speech or petition or assembly.  In some constitutional orders (in the United States at various moments in history), juries in criminal cases claimed the constitutional authority to nullify the law by rendering verdicts that conformed to their own sense of justice, rather than their instructions. Where permitted that claimed power to decide the law could be the popular exercise of a sovereign (and hence constitutional) power.

Obviously, if activities of that sort are not formally recognized or protected by a constitutional order, people who engage in them—by taking to the streets or speaking and acting in the public sphere—may still be engaged in non-violent constitutional actions but they will be acting constitutionally, rather than undertaking constitutional acts. And there are other, non-violent ways in which popular forces may act constitutionally, even if they do so without formal sanction. They may take the law into their own hands outside of the jury box by shaming, shunning, or boycotting to punish those whose conduct they feel is unjust or wrong. Communities may form more organized groups to achieve similar ends, in the late nineteenth and early twentieth century law and order leagues were created in various parts of the US. Although the activities of some of these groups slid into more violent forms of mobbing and lynching, others tried to non-violently enforce laws that they believed the officers of the state ignored or principles that the laws did not reach. Once again, they were claiming the authority to act as sovereigns—to decide what justice required, to judge, and to punish through peaceful sanction.  

There are several things to note about these different types of popular, non-violent constitutional action. First, there may not be any connection between the type of action and the goal: a popular protest in the public sphere may have the goal of persuading the government to take a particular course of action, or it may be intended to help bring down a regime and create a new constitutional order. A community may act in a single, extreme instance, to shame a wrong doer, or it may try to declare that it has the power to do so on a sustained basis, as various vigilante organizations throughout US history did.

Second, some of those popular actions are by necessity individual, while others are collective. Voting, although the expression of a fundamental popular constitutional power, is the act of a single person. Some forms of popular protest, like a letter to the editor, are also individual actions, though they may be prepared as part of an organized and collective campaign.  Other forms are necessarily collective—shunning is the activity of a collective.

Third, these actions can have different constitutional purposes. They may be intended to persuade or otherwise work within a constitutional system, as was the case with the March on Washington; they may be used with the goal of bringing a constitutional order to an end, as was the case with the more recent protests in Tahrir Square.

Finally, these actions may become violent, either by accident or design. I'll sketch the scope of violence in constitutional history in a later post.

ERD

 

Constitutional Typology, Part I.D.: Popular Forces at the End of a Constitutional Order

This wraps up the first round of my occasional postings developing a constitutional typology (see here, and the various posts it links to), by looking at the roles of popular forces in bringing a constitution’s lifecycle to an end.

The most obvious way that popular forces can bring about the end of a constitutional order is through a revolution that overthrows the government, or the state, and brings the constitutional order down at the same time. And there is, of course, a rich literature on these “revolutionary constitutional movements” in social movement literature.  But those revolutionary movements are organized, and constitutional history suggests that constitutional orders may be brought to their knees by less structured popular forces.  That, for example, is way to read Woody Holton’s Unruly Americans and the Origins of the Constitution (2007), which, while formally the study of the popular role in shaping the new constitutional order of the United States is also a study of how popular actions helped bring the old constitutional order down. I considered the role a variety of popular forces played in ending the constitutional order of Massachusetts Bay in Debating—and Creating—Authority (2001).

Both Holton’s unruly revolutionaries and the citizen-activists in Massachusetts Bay offer another important point about the role of popular forces in ending constitutional orders—the consequence of their actions may exceed their intentions. When the lay actors in Massachusetts Bay set out their claim to the authority to interpret divine will, they did not intend to bring the constitutional order in Massachusetts Bay to an end.  Rather, they sought to establish their right to actively participate in the constitutional order that existed. There, an effort to expand the scope of constitutional authority accidentally led to the end of one constitutional order and the creation of a new one. In contrast, when the people of the states that formed the Confederacy seceded from the United States, they may have done so (as South Carolina’s Ordinance of Secession claimed) in the name of maintaining their sense of the true meaning of the US Constitution, but by their actions they intentionally removed themselves from the constitutional order. So we can read their actions as a deliberate effort to destroy an extent constitutional order.

The example of the failed Confederacy raises another important point—popular forces may fail to bring about the end of a constitutional order. The failure may be obvious fairly quickly, as was the case in 1848.  But the failure may take longer, the length of the American Civil War, for example, or the length of Britain’s interregnum.  

Two other points: First, usually when we think about the end of a constitutional order we think about forces that bring about changes in the constitutional system and the constitutional text. Most often, of course, it is the case that the end of the constitutional order is matched by a new constitutional text. But that need not be the case.  One might argue, for example, that the American Civil War brought about an end to the old constitutional order in the United States, or that the Glorious Revolution in England ended one constitutional order in Britain, while recognizing that neither significantly altered the constitutions (written or unwritten) of either country.  Arguably, neither of those moments was solely popular, but they point to the possibility that a revolution in a constitutional order can occur without implementation of a new constitutional text or the creation of a new governmental structure.

Second, the examples above are of internal actors bringing a constitutional order to an end. But that need not be the case; transnational movements may play a significant role in setting the stage for constitutional change (as apparently happened in South Africa, for example), and ex-pat communities and external allies may play a significant role in pressing for constitutional change (as was the case in late Qing China).  

ERD

 

Social Movements vs. Constitutional Movements

As a follow up to my discussions of the difference between a constitutional act and acting constitutionally or between judicial and constitutional review (and here), I wanted to briefly explore another dynamic pairing that has implications for how we talk about the role of popular forces in constitutional orders. This is the distinction between social movements that have constitutional aims, and constitutional movements.

To some degree, in drawing this distinction I follow the definitions set out in Goodwin and Jasper, The Social Movement Reader (2003). In the introduction, they distinguish between a social movement and a revolutionary movement, defining the former as:

…conscious, concerted, and sustained efforts by ordinary people to change some aspect of their society by using extra-institutional means. They are more conscious and organized than fads and fashions. They last longer than a single protest or riot. There is more to them than formal organizations, though such organizations usually play a part. They are composed mainly of ordinary people, as opposed to army officers, politicians, or economic elites. They need not be explicitly political, but many are. They are protesting against something, either explicitly as in antiwar movements, or implicitly, as in the back-to-the-land movement that is disgusted with modern urban and suburban life. (p. 3)

They define the latter, more briefly, as: “a social movement that seeks, at minimum, to overthrow the government or state.” (p. 3)