The United Kingdom’s Supreme Court ruled “illegal” a parliamentary tactic used by PM Boris Johnson to ensure Brexit would be carried out on October 31, more than six months after Brexit was supposed to take effect.
While the court wasn’t ruling on Brexit, per se, the context of the situation makes it clear the ruling is really just the latest move from the UK’s political class designed to postpone Brexit yet again.
Given the history of EU-related referenda in Europe, we can already guess how the situation will play out. British voters will either be asked to vote again on Brexit – so that this time, they can get it “right” – or the Brexit agreement will be constructed in such a way that Brexit will be a British exit in name only.
At the same time, bizarrely, Johnson’s moves in parliament have been credited as being “undemocratic” or even a “coup.” This charge comes even though Johnson had attempted to call an early election, but was denied.
In the meantime, any sort of democracy that might actually strengthen the pro-Brexit position will not be allowed, as noted by Raphael Vassallo :
To recap, then: Britain first turned to the electorate to decide on its future in the European Union by means of a nationwide referendum…and ignored the result. Then its Parliament made it technically impossible to actually deliver on that mandate, by reducing the present government to the status of a lame duck. And to cap it all, it has now even shut the door to an election: which is about the only thing left that can possibly resolve the entire Brexit impasse to begin with.
But at least, the Commons’ reluctance to hold an election can easily be explained in purely party-political terms. Clearly, the Remainers have understood that Boris Johnson would most likely enlarge his parliamentary majority in an election. … Britain’s Parliament seems hellbent on preventing the British people from even expressing their will at all.
By now, this is a tried and true tactic in European politics. Only votes that help the pro-EU position are allowed. Everything else is declared “undemocratic” or is simply ignored.
In 2001, Irish voters rejected the Nice Treaty in a referendum (or, to be more accurate, rejected proposed amendments to the Irish Constitution, that would have made ratification of the Nice Treaty possible).
Ireland’s political class quickly went to work declaring that the Irish voters had made a mistake and didn’t really understand the importance of ratifying the treaty. Vassallo notes
… the response was to doggedly “pursue” the same rejected reforms anyway, with even greater determination than before.
So much so, that just a year later, the Irish were presented with a second national referendum… to approve a second raft of changes to Ireland’s Constitution, so as to once again permit the ratification of pretty much the same old Nice Treaty they had earlier rejected.
The second time, the majority voted “correctly” and demands for additional referenda, of course, ended.
Another tactic was used on the continent when the French and the Dutch were allowed to vote on the ratification of a new EU constitution. The voters rejected it.
But it naturally didn’t end there. French and Dutch politicians simply ignored the results of the referenda and devised an alternative strategy. They slightly revised the text of the constitution, called it the “Lisbon Treaty” and then ratified that without asking the voters.
Brendan O’Neill summed it up in The Guardian:
When French and Dutch voters rejected the European constitution in 2005 (and according to Valery Giscard d’Estaing , the current Lisbon treaty is the “same as the constitution”), they were sneeringly insulted by their betters in Brussels. Neil Kinnock said it was a “triumph of ignorance”. Andrew Duff, Liberal Democrat MEP, labelled the “rejectionists” as an “odd bunch of racists, xenophobes, nationalists, communists, the disappointed centre left and the generally pissed off”. He asked whether it is wise to “submit the EU Constitution to a lottery of uncoordinated national plebiscites”.
But by 2008, the Irish still hadn’t learned their lesson, and the majority voted incorrectly in a 2008 referendum on the Lisbon Treaty.
Sure enough, Irish politicians demanded a second vote, and the second time, the voters got it “right.”
But not before they were roundly denounced by their betters in Parliament and in Brussels who knew better. O’Neill writes:
As soon as the Irish people’s ballots were counted in June , their rejection of Lisbon was treated as the “wrong” answer, as if they had been taking part in a multiple-choice maths exam and had failed to work out that 2+2=4. Now, they will be given a chance to sit the exam again, “until [they] come up with the right answer,” says George Galloway , attacking EU elitism. The notion that the Irish “got it wrong” exposes gobsmacking ignorance about democracy in the upper echelons of the EU. The very fact that a majority of Irish people said no to Lisbon made it the “right answer”, true and sovereign and final. “No” really does mean no.
Here, O’Neill gets it slightly wrong. The “upper echelons of the EU” know exactly how democracy works. It is only to be tolerated if it leads to the outcomes preferred by the ruling classes. If not, then something must be done to correct the situation.
Just keep voting until the voters do things properly.
Calling Upon the Courts to Void the Vote
In the US, of course, we don’t bother having additional elections out of the usual schedule. We just have judges overrule the voters whenever the voters get uppity.
One such case occurred in California in 1994, when nearly 60 percent of the voters approved a measure to deny government services to foreign nationals living illegally in the US. It didn’t call for any deportations, or for any prosecution of any residents.
The measure was passed with “yes” votes from of 56% of African Americans, 57% of Asians, and a third of Hispanics. It won in every region of California except the Bay Area. In heavily Hispanic Los Angeles County, it passed by a 12-point margin.
After the votes were counted, the result was simply ignored and thrown out. All that was required was to have a federal judge declare the will of the democratic majority to be null and void.
In more recent years, the courts have wised up and no longer allow the voters to even have a say. In 2018, a measure to split California into three smaller states was successfully placed on the ballot after gaining the required number of signatures from voters and jumping through the usual hoops required of such measures.
But before a vote could occur, the California Supreme Court deleted the measure from the ballot, ruling:
“We conclude that the potential harm in permitting the measure to remain on the ballot outweighs the potential harm in delaying the proposition to a future election,” the justices wrote.
In other words, allowing the voters to have a say on the matter is too risky. Thus, a tiny number of wealthy California judges instead decided for the voters that the only acceptable vote is “no.”
And who needs voting when you have government judges, anyway? Once upon a time, it was widely accepted that significant changes to the federal constitution required a vote, in the manner prescribed by the Constitution itself.
During the early twentieth century, for example, constitutional amendments were seen as the proper way to do this. It’s why Prohibition required a constitutional amendment and not just a federal law declaring a “war on booze.” It was recognized that new federal powers — like those needed to outlaw alcohol consumption — could not be invented by either the courts or the President, or Congress.
By the 1960s, however, voting on constitutional amendments was passé. It became far more convenient to go to federal judges instead, and have them simply invent a new version of the constitution.
Should abortion be regulated by the federal government even though everyone agreed for 180 years that no such federal power existed? No problem, just have the Supreme Court declare it to be so.
Should the federal government have the power to force people to buy health insurance? Don’t bother with an Amendment. Just have nine federal judges decide the matter for 320 million Americans.
Want to declare a war on drugs? An amednment is no longer required, as it was in the days of Prohibition. Now, federal judges can grant us feds any power we want!
Meanwhile, politicians never tire of lecturing us about the sanctity of democracy. But it’s clearly only sacred when the Important People agree with the outcome.