An American View On Brexit

Keep Calm for He Is An Englishman The most surprising thing about the Brexit vote, to me, was that there was a Brexit vote—that the question was put to a nationwide referendum. Many US states made provisions in their constitutions for referenda and initiative petitions in their constitutions during the Progressive Era. Even my own state, Massachusetts, did it—the only New England state other than Maine to do so. This year’s crop includes an initiative petition to prevent cruelty to farm animals, one to increase the tax on incomes over $1 million, and one to legalize possession of marijuana under Massachusetts law. Not exactly Brexit-level questions.

But there is no tradition here of national referenda. Even at the start of the Civil War, when the southern states sought to secede, most acted by way of a convention of elected delegates. Three of the thirteen held referenda, though in one state, Virginia, a regional difference in the vote led to the breakup of the state, with what is now West Virginia remaining in the Union—a nice parallel to the Brexit vote in the UK and Scotland.

More to the point, to put the EU question directly to the voters flies in the face of what I thought I knew about the UK constitution, particularly the idea of Parliamentary sovereignty. Some of the legal reaction to Brexit seems to bear this out. Assuming for the moment that the decision to invoke Article 50 of the EU Treaty isn’t a matter within the prerogative powers (if it were, the decision would be for the government), doesn’t Parliament still need to vote? On the other hand, having held the referendum, the UK’s leaders can hardly ignore its outcome.

James Madison

There’s a first time for everything, and maybe the novelty of the Brexit referendum shouldn’t count against it. But from an American perspective, I think it is right to view such referenda with deep suspicion. Here is Madison from Federalist No. 10:

The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens and greater sphere of country over which the latter may be extended.

The effect of the first difference is, on the one hand, to refine and enlarge the public views by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose.

Now, no one can look at our Congress in 2016 and find much evidence of citizens whose wisdom has done a very good job of discerning the true interests of the country or who have shown themselves unlikely to sacrifice the national interest to temporary or partial considerations. And indeed, Madison goes on in very next sentence, to say: “On the other hand, the effect may be inverted.” But if you think Congress is doing a bad job, imagine if all the big issues confronting the nation were up for a popular vote!

There was no question that the great weight of elite opinion in the UK was against Brexit, and as things have developed since the vote, it seems that many of their worries are most likely correct. Brexit will not be cost-free. The UK is not going to have the benefits of membership without paying the price. Moreover, the supporters of Brexit included unsavory characters and outright racists, and the role of immigration in the debate had elements of xenophobia, just as the immigration debate does here in America.

The Boston Tea Party

And yet there is also something fundamentally American about the motivation for Brexit, namely the deeply held view that laws shouldn’t be made by people you didn’t elect, and that your traditional ways of self-government should be respected. (Happy Fourth of July, by the way, to my American readers!) That was the ideology of the American Revolution, and I would add that the Revolutionaries were much more closely connected in terms of history, politics, and nationality with the British than the British today are with the other EU member-states, even though the Ocean is much broader than the Channel. In other words, Brexit has illustrated the EU’s democratic legitimacy deficit.

Donald Trump mocking a disabled reporter

Some say that the main problem is that the policies of the EU and of the UK’s own government have not sufficiently met the needs of the ordinary people outside of London who voted to leave. This is part of the problem, certainly, and I would diagnose (in part) the problem of Trumpism here in the United States similarly. But that’s not the entire problem on either side of the Atlantic. Here in the United States, our customary political institutions have been weakened by—I really can’t put this better than Jonathan Rauch did recently in The Atlantic, and you should read his article. In the UK, part of the problem is that the EU means to be an “ever closer union,” which at the end of the day means a full union, and yet there is no elected European legislature with full legislative power, no popularly elected European president, and courts that, fairly or not, are felt to infringe on the UK’s right of self-governance. In short, none of the three branches of the EU government really seem to the British people to have democratic legitimacy. This, by the way, is a problem that in my view the United States doesn’t really have in a serious way. There may be a lot of dummies in Congress, but they are our dummies.

This is why I’m of two minds about the Brexit. Of course I think it was not in the UK’s economic interest, and of course I think it is a major blow to the EU, which is an important institution for world order. I would have been much happier had the British people felt connected enough with the EU to vote to stay. But I don’t think it is right to cast the voters as rubes who hate the Poles and were deceived by the likes of Nigel Farage. There’s a principle behind the vote that is worth careful thought.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

7 thoughts on “An American View On Brexit

  1. Hello. I see the West Virginia analogy quite often regarding Brexit, but it is a false analogy if you know the details. First, most West Virginians did not vote to leave Virginia or the Confederacy, less than 24% of the voters participated in that decision, and that vote was conducted by one side in the midst of war. Second, most of West Virginia is made up of counties that voted in favor of the Confederacy in May 1861, roughly two-thirds of the territory. The Union government in Wheeling was not supported by West Virginia on the whole but was propped up by Federal troops. Polls were guarded by Union soldiers, who also often voted as residents of the counties and those votes were included as such. Between 2 and 3 thousand West Virginia citizens, not soldiers, were jailed in a Union prison in Ohio called Camp Chase. In Doddridge county 1 of every 20 voters ended up in Camp Chase. This is how West Virginia came about. I know your post is about Brexit, not West Virginia, but I just wanted to add this little note for historical reasons.

  2. Some very valid points in your analysis, and you are correct in that it is quite surprising that a referendum should have been held at all. This is particularly true given that no one knew what they were voting for – Brexit has to be negotiated and the terms that will be agreed are a complete unknown.

    An English view, for what it’s worth, is that our governments are elected to govern – they do not normally need to consult the electorate on decisions, and very rarely do so. A referendum is only needed, in my view, if we are signing up to something which fundamentally alters the way in which we are governed, and cannot easily be reversed. On this basis a referendum should arguably have been called before we signed up to the Maastricht treaty. The deeply unpleasant Nigel Farage is correct when he says that the Europe we now live with is not what was voted for in the seventies, and this was the point at which the direction changed.

    That said, there still was no obvious need for a referendum at this point – the Maastricht decision belongs to a previous parliament, now buried deep in history. However, the 2010 election resulted in a hung parliament, and the 2015 election appeared to be heading the same way. With many people voicing discontent with the EU, David Cameron promised a referendum if his party were to achieve an overall majority. We will never know, but I suspect this swung enough voters to enabled his party to win the election.

    Where we go from here is anyones guess. You are correct in that the referendum is advisory and not legally binding. It can therefore be blocked by Parliament, although this would be unusual. However, I would not be at all surprised if Brexit never happens. The people who have brought this about are now disappearing – David Cameron has resigned as Prime Minister, Boris Johnson did not stand and Nigel Farage has quit UKIP. Article 50 will need to be invoked by Camerons replacement at a time of her choosing. It may be that this time will be delayed until other events overtake the issue and excuses can be made not to go ahead.

    A last point on why the UK voted the way it did. The leave campaign was quite distasteful and focused on immigration above all else. I think that’s a shame. The East Europeans I have met have generally been polite and pleasant people with a strong work ethic. However, there are many people living in deprived parts of the country without a job or a decent place to live. Whatever the real reasons for this, to hear from Nigel Farage that it’s the fault of the Poles and we can solve it if we quit the EU is very convenient. A scapegoat and a solution all in one, but the people who voted to leave on this basis are likely to be very disappointed.

    There are better arguments for leaving. The EU is deeply flawed in its current form and is full of people who are both unelected and unaccountable making bad decisions that affect us all. Several member states are in a deep economic mess, and it is not just the UK that is disillusioned with the whole project. They waste money hand over fist, and apparently have never been audited. You may have heard of a Spanish state-of-the-art airport which was built at a cost of over a billion Euros, now deteriorating because none of the airlines fly there. And this is not isolated. On a holiday in Tenerife, I was shown a very pretty EU funded harbour which was intended as a ferry port, but is not used for this because it is too shallow at low tide. No one seems to know who is making these daft decisions, but the perception is that similar decisions are made again and again without consequence.

    But the biggest argument of all is sovereignty and the right to self govern. The EU has a direct impact on the ability of the UK to make its own laws, so our democracy is undermined because of the restrictions placed on our elected politicians.

  3. I agree in that there never should have been a referendum on the topic in the first place. It was a bad move on Cameron’s part which ultimately had the opposite effect of what he intended. Additionally, such a complicated issue as to the possible implications of a Brexit are not foreseeable by most people unless they spend a considerable amount of time researching UK’s legal and political history for the last 40 years and how the EU works. This whole thing has exposed every nook and cranny in the UK constitutional framework and it’s not over yet, in my view.

    One thing that I find very frustrating is that people seem to assume that the EU has no democratic value and I disagree with this. Just because it is not structured the same way as the UK or American system does not mean there is no democratic process. Furthermore, the people of the UK forget that their own government can be voted in with 35% popularity.

    That’s not to say that there are not problems with the EU. They are extremely far reaching and it’s too much in my view, but I have a feeling the UK will find that leaving the EU will not have the intended affect that they were looking for because if you want to do business with your neighbour who is substantially larger than you, guess who’s rules will be followed.

    1. Thanks, Sarah. I think your first and third points are strong. On your second point, which was really the thrust of my post, it seems to me that you’re right in a sense—the EU has some democratic features. But enough to give the enterprise democratic legitimacy consistent with the wide scope of the EU’s powers?

      1. The EU lacks democratic legitimacy for sure, but I think the question is why is that? Is it because it is not there; or because people simply don’t know how it works. My understanding from my studies of the EU is that two of the three decision making institutions are made up of elected officials. The European Parliament is directly elected by EU citizens (albeit by the very small few who actually go out and vote) and the Council (including the European Council) are elected ministers (or heads of state) within their respective member state. The Commission is the only body that is appointed and the EP is responsible for appointing the head of the Commission. The head of the Commission then appoints individual Commissioners but the EP can veto any proposed appointment (they’ve done it). The legislative agenda is produced by the Commission, but all draft legislation runs through and is passed by EP and the Council (acting as the two houses, if you will) and they can make as many changes to proposed legislation that they see fit essentially rendering a Directive or Regulation completely useless if they don’t agree with what has been put forth by the Commission. Furthermore, EP has the power to relieve individual Commissioners of their post or dissolve the entire Commission (they’ve done it). In my view these have always been substantially large indications of a democratic system, but everything always works in theory, right?

        Through this whole exercise (Brexit) I’ve been frustrated with watching people blame the EU for problems withing the UK. Nobody seems to look at the interaction of the UK government with the EU and how it has played out over the last 40 years. An uncodified constitution and having no constitutional court may function all well and good in a state that is distanced far enough away from the rest of the world, but what happens when you relinquish some of your control to a supranational organization? Things like prerogative powers don’t work so well (the Rees-Mogg case is a good example of this). Another contributing factor to the internal mess that has created Brexit is legislation such as the ECA 1972 and HRA 1998 (ECHR ralted, but still). They are sloppy in my view and do not include the necessary protections. They have left the UK judiciary confused for years. Funnily enough, these were not really highlighted by either side during Brexit although the proposed Bill of Rights was relegated to somewhat of a side show.

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