Friday, January 27, 2017

Brexit and Calexit: Excessive Democracy?

Ordered by Britain’s Supreme Court to get the state’s Parliament’s approval for the state to secede from the Union, the Prime Minister, Teresa May, faced the prospect of debate, amendments, and the votes themselves in the House of Commons and the House of Lords. In the latter chamber, May’s Conservative Party did not at the time have a majority. Some in her party “suggested that she should quickly appoint enough new lords to give her the votes she needs. But few say they expect that to be necessary: with little democratic legitimacy, the 805 lords are unlikely to dare to block” the referendum outcome favoring secession.[1] I submit that the democratic criterion is ill-fitting to the House of Lords.

Clearly, the British House of Lords is not a democratic institution. This does not de-legitimatize it, however, as such a chamber can serve as a check against the excesses of democracy, such as mob-rule, which Plato and Aristotle both viewed as the bad side of democracy. Hypothetically, were the state’s House of Commons to abruptly vote to secede from the Union because of an emotional reaction to something taking place at the federal level, the lords could step in and say, in effect, slow down; let’s think this over—whether secession is in our own best interests.

The distinctive assets that the House of Lords has in making sure the secession-vote is in the best interest of the state depend on the bases on which the lords are appointed. Heredity, for instance, could bring to bear the maturity of having been raised well (including education). Appointing lords based on commercial success would bring good analysis to bear on the problem, and appointing highly educated people would increase the chance that the implications of secession (or staying in the Union) are well thought out.

I am by no means suggesting that the will of an unelected legislative chamber is superior to that of a democratic one. Rather, my point is that the check-and-balance feature of the British state legislature necessitates that both chambers are not held to the criterion fitting only one. The claim that the House of Lords had better rubber-stamp the House of Commons simply because the democratic votes favor secession is spurious and thus not in the state’s best interest.

We can contrast that case—“Brexit”—with that of California—“Calexit.” As Teresa May was submitting her secession document to Parliament, a “proposal for California to secede from the United States was submitted to the Secretary of State’s Office. The proposed ‘Calexit’ initiative—its name borrowed from the UK’s ‘Brexit’ . . . –would ask voters to repeal the part of the state constitution that declares California an inseparable part of the U.S.”[2] Fortunately for Britain, neither the state nor the E.U. basic law has the perpetual union requirement built-in. Hence, the California Nationhood proposal faced an up-hill road, including needing 600,000 signatures and a successful referendum vote. 

Presumably both chambers of California’s legislature would also have to consent to the constitutional amendment rendering the state “a free, sovereign and independent country.”[3] Herein lies the rub. Unlike the British legislature, both chambers in California are democratically elected. This is clearly duplicative—the chief difference between the bodies is their size—the senatorial districts are much larger (on the scale of the main regions in the UK: Wales, Scotland, England, and Northern Ireland).

Additionally, the opportunity cost (i.e., the benefit or value of alternatives that is foregone) of the check-and-balance feature such as existed at the time in the British Parliament is lacking. Other than California’s Supreme Court, which like that of Britain, could intervene, “Calexit” could be pursued solely on a democratic basis and thus be vulnerable to its deficiencies or drawbacks. Mob rule, such as partisan opposition to the federal president, Donald Trump, could lead to a result (albeit unlikely) that is not in the best interest of California. 

Furthermore, practical experience, maturity, and seasoned analysis do not have an institutional perch in the California legislature. It does not hold that the majority vote of an electorate will see to it that these virtues are sent to the legislature. So in this respect, California’s legislature can be seen as weaker than that of Britain. In California’s case, the U.S. Congress would also have to approve the state’s secession, and this added hurdle could serve as a check of sorts, though, again, only under democratic auspices, for both the U.S. House of Representatives and the U.S. Senate have been democratically-elected bodies since 1913 when the senators became elected rather than appointed by their respective governments. In contrast, the E.U.’s European Council, which like the U.S. Senate represents states rather than citizens, was not as of early 2017 democratically elected.

[1] Katrin Bennhold, “Ordered to Seek Approval on ‘Brexit,’ Teresa May Does So. Tersely,” The New York Times, January 26, 2017.
[3] Ibid.