Nightcap

  1. India’s constitution is way too long Bhatia & Modi, Pragati
  2. Pakistan’s proxies Adnan Naseemullah, Duck of Minerva
  3. Is Bernie Sanders the Ronald Reagan of socialism? Ross Douthat, New York Times
  4. How the Gupta brothers hoodwinked South Africa Karan Mahajan, Vanity Fair

RCH: MacArthur’s rule over Japan

That’s the subject of my latest over at RealClearHistory. An excerpt:

The relative graciousness of the American occupation of Japan led to the most peaceful and prosperous era in Japanese history. MacArthur’s governing strategy for a conquered people was so successful that it was aped by Washington in 2001 and 2003 when the United States invaded and occupied Afghanistan and Iraq. What went wrong? You could write a dissertation trying to answer that question, but the most straightforward answer is that Iraq and Afghanistan were not conquered. The governments of Kabul and Baghdad never officially surrendered to Washington, and they never really had the capacity to wage war the way that Japan was able to wage war on the United States.

As always, I appreciate the clicks…

Nightcap

  1. Astrobiology highlights of 2018 Caleb Scharf, Life, Unbounded
  2. How the British constitution created the Brexit mess John McGinnis, Law & Liberty
  3. Government as a branch of culture Arnold Kling, askblog
  4. Russia moves to strangle Ukraine from the sea Christian Esch, Der Spiegel

Afternoon Tea: “Confucian Constitutionalism in Imperial Vietnam”

The phantasm of “Oriental despotism” dominating our conventional views of East Asian imperial government has been recently challenged by the scholarship of “Confucian constitutionalism.” To contribute to our full discovery of the manifestations of Confucian constitutionalism in diverse Confucian areas, this paper considers the case of imperial Vietnam with a focus on the early Nguyễn dynasty. The investigation reveals numerous constitutional norms as the embodiment of the Confucian li used to restrain the royal authority, namely the models of ancient kings, the political norms in the Confucian classics, the ancestral precedents, and the institutions of the precedent dynasties. In addition, the paper discovers structuralized forums enabling the scholar-officials to use the norms to limit the royal power, including the royal examination system, the deliberative institutions, the educative institution, the remonstrative institution, and the historical institution. In practical dimension, the paper demonstrates the limitations of these norms and institutions in controlling the ruler due to the lack of necessary institutional independence. At the same time, it also suggests that the relative effectiveness of these norms and institutions could be achieved thanks to the power of tradition. The study finally points out several implications. First, the availability of the constitutional norms and institutions in the tradition is the cultural foundation for the promotion of modern constitutionalism in the present-day Vietnam. Second, the factual material concerning the Vietnamese experiences can hopefully be used for further study of the practice of Confucian constitutionalism in East Asia and further revision of the “Oriental despotism” - based understanding of imperial polity in the region. Third, the findings may also be useful for a more general reflection on pre-modern constitutionalism.

That is from Son Ngoc Bui, a legal scholar at the Chinese University of Hong Kong’s law school. Here is a link.

Nightcap

  1. After Federalist No. 10 Greg Weiner, National Affairs
  2. Photos of the Paris “Yellow Vest” Riots Alan Taylor, the Atlantic
  3. A century of HIV Thomas McDow, Origins
  4. The long, entwined history of America First and the American dream Kevin Kruse, the Nation

Populism versus Constitutional Democracy

What is the difference between a conservative and a reactionary? A conservative knows when she has lost.

A conservative respects the status quo for the sake of stability. The reactionary rebels against it. Unfortunately, it is the reactionary impulse within Brexit that now threatens to hem in the liberties of British citizens, and threaten the rights of foreign residents, for a long time to come. A looser but productive relationship that Britain could have had with the European Union was lost, first at Maastricht in 1992, then again at Lisbon in 2007. A conservative recognizes this loss and adapts her politics to the new landscape. The reactionary tries to reconstruct those lost pasts in vain as the chaotic debates in Britain and the increasingly disappointing outcome illustrates.

Does this mean that referendums are bad? Do they only embolden radicals and reactionaries? It depends. If referendums are used to rubberstamp the decisions of a party in power, or as a way of deferring political judgement, then they are useless at best, dangerous at worst. By contrast, if they are part of the fabric of a democracy, and act as a real veto on constitutional change, rather than a populist rallying point, then they can be enormously valuable. They act as an additional check on the political establishment that might be irrationally fixated on some new governance structure. It ensures that every major change carries with it some level of majority support.

Ten years ago, I wrote a monograph Total Recall: How direct democracy can improve Britain. I advocated supplementing representative democracy with a norm or statutory requirement for referendums on constitutional issues and new local initiative powers. I focused on direct democracy in US states that mean that US state elections often involve both voting for representatives and on propositions. Referendums are required for state constitutional changes. In some states, citizens can initiate new legislation through propositions.

There are parallel constitutional requirements in force in parts of Europe, particularly in Switzerland, Norway and Ireland. It is hardly a coincidence that direct democratic mechanisms have slowed down European integration wherever they have had statutory rather than merely advisory force. Ireland had to go to the polls several times to get the ‘right’ answer but at least this meant that a majority of Irish eventually accepted the new EU arrangements. By contrast, Switzerland and Norway, against the wishes of their political establishments, took European integration only so far before settling with generous trade relations and much more limited political integration. The cost-benefit calculus of their arrangements are up for debate, but few would deny their legitimacy. Britain’s future position, by contrast, may turn out to look much worse and all because its people never had the chance to say ‘no’ until long after the facts on the ground changed.

It’s the ability to say ‘no’ that’s important, with the implication that the status quo must still be a viable option. A people cannot be legislators. Mass votes can’t add up to complex judgements to inform actionable law. Hence the Brexit referendum for leaving the EU for an unknown alternative was bound to lead to chaos which, in the long run, may undermine the legitimacy of representative government, let alone popular democracy, rather than strengthen it. There is no status quo ante to return to.

At the time I was writing Total Recall, the spirits of referendums never voted on haunted British politics. Referendums were promised on adopting the Euro and the European Constitution. Both were abandoned when the Government realized they would almost certainly lose. So we stayed out of the Euro but signed what became the Lisbon Treaty. This turned out to be a deadly combination that eventually led to Brexit. The Euro is quite badly managed as an economic scheme. As a political mechanism, however, it binds members of the Euro much closer together. Leaving the European Union, as Britain is doing, is perilous and costly. Leaving the Eurozone would be even more difficult as it would involve establishing a new currency from scratch. If New Labour had been serious about putting Britain in a federal united states of Europe, it should have gone all in with the Euro from the beginning.

So Brexit could have been avoided but not by ignoring majority sentiments. If British referendums were constitutionally mandated rather than the random outcome of internal (in this case, Conservative) party politics; if referendums were required to change the status quo rather than a mechanism for a belligerent minority to relitigate past losses, then, like Switzerland and Norway, we would be in a much better position now.

Will our political leaders learn this lesson for the future? That I doubt.

Afternoon Tea: “Dividing Power in the First and Second British Empires: Revisiting Durham’s Imperial Constitution”

In his Report on the Affairs of British North America, Lord Durham proposed that “internal” government be placed in the hands of the colonists themselves and that a short list of subjects be reserved for Imperial control. Janet Ajzenstat maintains that Durham did not intend to formally restrict the authority of the new colonial legislature by dividing power. This paper argues otherwise: that Durham’s recommendation fell squarely within a tradition of distinguishing between the internal and external affairs of the colony. This was the imprecise but pragmatic distinction that American colonists invoked during the Stamp Act crisis as a means of curtailing imperial authority over internal taxation while maintaining their allegiance to the British Crown. It also was a division that Charles Buller relied upon in a constitution for New South Wales that he proposed prior to sailing to Canada as Durham’s principal secretary. Durham likely was drawing upon this tradition when he made his recommendation, a distinction that began to crumble away almost immediately. In the result, Canadians inherited a robust semblance of self-government, just as colonists during the Stamp Act crisis had desired, but without the need for revolution.

This is from David Schneiderman, a law professor at the University of Toronto. Here is the link.